Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FRIENDS FIRST JEWELRY CORP. v. GIUFFRIDA

July 12, 1984

FRIENDS FIRST JEWELRY CORP., Plaintiff, against LOUIS O. GIUFFRIDA, as Director of the FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant.


The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 The above-captioned action is before this Court upon defendant's motion for dimissal or summary judgment in its favor. For the reasons stated below, defendant's motion for summary judgment is granted.

 BACKGROUND

 On May 27, 1978, plaintiff First Friends Jewelry Corporation ("Friends") purchased an insurance policy under the Federal Crime Insurance Program ("FCIP"). This program is administered by the Federal Insurance Administration ("FIA"), a component of the Federal Employment Management Agency ("FEMA"), which is authorized to sell commercial crime insurance through its servicing company, National Con-Serv., Inc. ("NCSI").

 On August 5, 1979, Friends was robbed of an alleged $17,654.05 worth of merchandise. Friends notified NCSI of the robbery (Affidavit of William Kennedy dated May 16, 1983, P3 ("Kennedy Aff.")). Plaintiff's claim was denied, however, by NCSI (and FEMA) for failure to submit supporting documentation within the required time period (Kennedy Aff., P4). A rejection of claim letter was sent to plaintiff by Vic Cornelius, a claims examiner for FCIP, On July 7, 1980 (Kennedy Aff., Exh. B). Plaintiff avers that it never received this letter (Affidavit of Stephen Chau, dated June 27, 1983 ("Chau Aff.")). On June 3, 1982, the administrator of the FIA, Jeffrey S. Bragg, sent a letter to plaintiff's attorney refusing to reopen Friends' file regarding this claim (Kennedy Aff., Exh. C). Plaintiff claims that this was the first time it became aware that its claim had been denied (Chau Aff.). On July 28, 1982, William Kennedy sent a letter to Friends' attorney reaffirming the prior denials of Friends' claim and asserting that Friends had one year from Bragg's letter within which to commence suit (Kennedy Aff., Exh. D).

 Based on the FIA's denial of its claim, plaintiff instituted this suit on February 5, 1983. Defendant filed the instant motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment in its favor pursuant to Rule 56.

 DISCUSSION

 An FCIP insurance policy is explicitly made subject to the crime insurance provisions of Title VI of the Housing and Urban Development Act of 1970, 12 U.S.C. § 1749bbb-10(a), et seq., and the regulations issued thereunder, 44 C.F.R. Parts 80-83. The terms of an FCIP policy are prescribed by 44 C.F.R. § 83.26. Exclusive jurisdiction to hear this case is conferred upon the federal district courts by the general provisions of § 1749bbb-11(b)(2).

 The FCIP policy form requires that the insured, upon discovery of loss, give notice to the insurer as soon as practicable, and file a detached proof of loss with the insurer within sixty days of discovery of loss. See 44 C.F.R. § 83.26(b), Conditions P6. Defendant found that plaintiff did not comply with the sixty day deadline, and denied plaintiff's claim. Plaintiff filed this action to contest that determination.

 In support of its motion to dismiss or for summary judgment, the government makes the following arguments based on the regulatory provisions of the insurance program: (1) plaintiff failed to institute suit within one year after it received the written disallowance of its claim, dated July 7, 1980, in contravention of 12 U.S.C. § 1749bbb-11(b)(2), and (2) plaintiff failed to institute suit within two years of the date it discovered the alleged loss and within one year of the date it received written disallowance of its claim, in contravention of paragraph 10 of the Conditions section of the policy.

 Section 1749bbb-11 of Title 12, United States Code, provides, in relevant part, as follows:

 (b)(1) Upon disallowance of any claim under . . . direct insurance made available under this title . . . the claimant may institute an action against the Secretary . . .

 (2) Any such action must be begun within one year after the date upon which the claimant received written notice of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.