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Kehoe v. Travelers Insurance Co.

January 12, 2009

RANDALL E. KEHOE, PLAINTIFF,
v.
TRAVELERS INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff pro se Randall E. Kehoe ("Kehoe") seeks recovery under a Standard Flood Insurance Policy ("SFIP") issued to him by The Standard Fire Insurance Company ("Standard"), misnamed in the complaint as Travelers Insurance Company. Standard has moved for summary judgment. For the reasons that follow Standard's motion is granted, and Kehoe's action is dismissed in its entirety.

II. Background

Kehoe owns a residence located at River Bend Road in Troy, New York. From December 3, 2006 to December 3, 2007, the property was insured against flood damage through an SFIP issued by Standard under the National Flood Insurance Program ("NFIP"). On May 8, 2007, Kehoe notified Standard that the property had suffered a flood related loss due to a Nor'easter*fn1 the previous day. Subsequently, Kehoe was in frequent contact with Standard regarding his claim, and provided the insurer with an independent engineer's report which opined the loss was due to erosion caused by flood waters. However, at no point did Kehoe submit a signed and sworn proof of loss detailing the amount of damages to which he was allegedly entitled. After the property was inspected by a "courtesy" adjustor and engineer provided by Standard, Kehoe's claim was denied because the alleged loss was caused by earth movement, which was specifically excluded under his SFIP.

On May, 28, 2008, Kehoe filed a complaint seeking damages for breach of contract under federal common law (Count One); breach of contract terms within the SFIP (Count Two), and for breach of fiduciary duty under federal common law (Count Three). Presently, the court addresses Standard's motion for summary judgment.

III. Standard of Review

The standard for the grant of summary judgment is well-established, and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).

IV. Discussion

Congress created the NFIP under the National Flood Insurance Act of 1968, 42 U.S.C. § 4001, et seq. The NFIP's purpose is, in part, to make "flood insurance ... available on a nationwide basis through the cooperative efforts of the Federal Government and the private insurance industry." 42 U.S.C. § 4001(d). The program is currently overseen and implemented by the Federal Emergency Management Agency ("FEMA"). See 42 U.S.C. § 4011. In 1983, FEMA created the Write Your Own ("WYO") program, through which private insurance companies, such as Standard, are permitted to issue SFIPs in their own names as "fiscal agent[s] of the Federal Government." See 44 C.F.R. § 62.23(a), (g). Under this arrangement approved claims are paid by FEMA, with the WYO company that issued the SFIP receiving a percentage payment of the claim paid. See 44 C.F.R. Pt. 62, App. A, Art. III(C)(1).

FEMA regulations dictate the exact content of all SFIPs, which must conform to the insurance policy codified at 44 C.F.R. Pt. 61, App. A(1). See 44 C.F.R. § 61.4(b). WYO companies cannot waive or vary the SFIP terms and conditions set forth by FEMA without the express written consent of the Federal Insurance Administrator. See 44 C.F.R. §§ 61.4(b), 61.13(d), (e), 62.23(c), (d). As relevant to the current motion, all SFIPs require that an insured claiming a flood loss submit a signed and sworn proof of loss within 60 days of the loss. 44 C.F.R. Pt. 61, App. A(1), Art. VII(J)(4). Specifically, the SFIP codified at Appendix A states:

Within 60 days after the loss, send us a proof of loss, which is your statement of the amount you are claiming under the policy signed and sworn to by you, and which furnishes us with the following information ... [f.] Specifications of damaged buildings and detailed repair estimates;...

Id. at Art. VII(J)(4)(f).

Here, Standard contends that Kehoe's complaint must be dismissed in its entirety because: 1) Kehoe has failed to timely submit a signed and sworn proof of loss as required by his SFIP; and 2) the alleged loss was not covered by the SFIP in any event. Finding the first ...


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