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Robert Jacobson v. Metropolitan Property & Casualty Insurance Company

December 21, 2010

ROBERT JACOBSON, PLAINTIFF,
v.
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, DEFENDANT.



MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Presently before the Court is the Motion for summary judgment (Dkt. No. 15) by Metropolitan Property & Casualty Insurance Company ("Defendant" or "Metropolitan"). Plaintiff Robert Jacobson ("Plaintiff" or "Jacobson") seeks recovery against Defendant under a Standard Flood Insurance Policy ("SFIP") issued to him. Dkt. No. 1. For the reasons that follow, Metropolitan's Motion is granted, and Jacobson's action is dismissed in its entirety.

II. BACKGROUND

In 2001, Plaintiff bought the dwelling that is the subject of this lawsuit on a parcel of real estate located at 848 West Main Street, Catskill, NY ("parcel"). See Dkt. No. 15-14, Ex. A. The rear of the Parcel borders the outside shore of a bend in the Catskill Creek near a point at which a tributary creek known as the Kaaterskill Creek feeds into the Catskill Creek. Id. at 44:17. In 2002, Plaintiff built an addition to the back of the dwelling, which extended out to the very upper edge of an escarpment (or sloping embankment) above a lower portion of the parcel which experienced regular flooding from the Catskill and tributary Kaaterskill creeks. See Dkt. No. 15-17, Ex. B. The entire addition was supported by modest timber pillars. Id. Plaintiff's wife, Ms. Sherell Jacobson, stated that she and Plaintiff constructed the addition to increase their "visual contact with the creek." See Dkt. No. 15-19, Ex. C at 16-17.

After purchasing the parcel, the Jacobsons immediately began experiencing the effects of seasonal rising waters of Catskill Creek. Id. at 17:13; see also Dkt. No 15-19, Ex. C-1. Possibly as soon as their second spring after purchasing the property, the Jacobsons saw the Creek wash away a "substantial" number of stairs that had been installed to go into the water. See Dkt. No. 15-14, Ex. A. The Jacobsons concluded that replacing or repairing the stairs would be too costly and therefore decided against fixing them. Id. In 2005, the Catskill and tributary Kaaterskill Creeks again flooded, this time rising approximately 16 feet above normal water levels. See Dkt. No. 15-14, Ex. A. at 15:15 & 16:24. In 2006, the Catskill and Kaaterskill Creeks both flooded again, rising more than 16 feet above normal water level. Id. at 18: 19-19:8.6. The flood took with it approximately 50 to 65 feet of Plaintiff's land. Id.

In 2006, the Jacobsons became concerned about the course of the erosion of their land they were experiencing, and they began a campaign contacting town, county, state, and federal officials seeking intervention at taxpayer expense. See id. at 22:6, 114-116. These officials told the Jacobsons that they were responsible for maintaining their own property. See Dkt. No. 15-32, Ex. L at 38-39, Dkt. No. 15-34, Ex. M at 44, and Dkt. No. 15-33, Ex. L-1. Then, in 2007, "[b]ecause of the events of the Catskill Creek flooding," Plaintiff purchased a Standard Flood Insurance Policy ("SFIP") for the parcel from Metropolitan, in its capacity as a Write- Your-Own ("WYO") Program carrier. Id. at 15:3. They purchased $250,000.00 in building coverage and $100,000.00 in contents coverage, and a policy term of May 6, 2007 to May 6, 2008. See Dkt. No. 15-2, Ex. A.

On or about June 4, 2007, the Catskill and Kaaterskill Creeks flooded once again, this time with the water rising some 46 feet, and washed away another 50 feet of Mr. Jacobson's land. Dkt. No. 15-14, Ex. A. at 17:25, 28:14. Although the water rose 46 feet, it never entered his home, nor did it cause any damage to the home, and by his own admission, Plaintiff took no steps at that time to notify Metropolitan of the incident. Id. at 27:23, 29:12, 31:18). Following this flood, the Jacobsons resided in their home from June 2007 to November 2007 and noticed no damage; it was not until they returned from a month-long trip to Mexico in late December 2007 that they first noticed something out of place with their home. Id. at 30:9. On or about January 22, 2008, Plaintiff reported flood damage to Metropolitan. See Ross-Goodnough Aff. at 10. On January 22, 2008, Metropolitan assigned NCA Group, Inc., an independent adjusting company, to investigate Plaintiff's flood claim. Id. at 13.

On January 22, 2008, Metropolitan mailed to Plaintiff a letter acknowledging the loss and notifying Plaintiff that the loss was reported more than 60-days after the date of loss. Id. ¶ 12 and Ex. B. On January 22, 2008, Daniel Loucks, a geotechnical engineer retained by Dr. Jacobson, inspected Plaintiff's property and dwelling and issued a report dated January 23, 2008, stating that "the soils directly under the main house are stable, but that over time if no corrective measures are taken to the slope the slope instability would likely progress under the back of the main house." See Dkt. No. 22, Ex. F; see also Dkt. No. 15-14, Ex. A at 40:19- 45:03. On February 28, 2008, Mr. Loucks issued a second report changing his findings as to the stability of the land under the dwelling. See Ex. 15-24, Ex. F-2.

On January 28, 2008, Plaintiff hired a Public Adjuster, John Donnelly of National Fire Adjusting Company, Inc. ("NFA"), to assist him with his flood claim. See Lagios Aff., Ex. Gl; see also, Dkt. No. 15-14, Ex. A at 56:9-59:01, 97: 11-97: 16. On February 4, 2008, Metropolitan issued a letter to Plaintiff again notifying Plaintiff of the provisions of the SFIP that require a Proof of Loss. See Dkt. No. 15-2 ¶ 14. On February 11, 2008, Metropolitan received a letter from NFA with a purported Proof of Loss from Plaintiff, dated February 4, 2008, in the amount of "undetermined." Id. at ¶ 16.

On February 13, 2008, Metropolitan sent a letter to NFA and Plaintiff rejecting the "Proof-of-Loss in the amount of $undetermined" and notifying NFA and Plaintiff that they may appeal Metropolitan's decision to FEMA. Id. ¶ 18. On February 8, 2008, after a site inspection, NCA Group, Inc., rendered a report requesting an engineering inspection of the property to determine possible damages from flood to the dwelling. Id. ¶ 15. On February 14, 2008, Metropolitan sent a duplicate letter to NFA and Plaintiff rejecting Plaintiff's "proof of loss." Id. at ¶ 18, Ex. F.

On February 18, 2008, engineer Robert Maltempo issued a report regarding his findings from his February 17,2008, inspection of the insured dwelling at the request of Metropolitan. Id. at ¶ 19. On February 21, 2008, NCA issued a closing report recommending denial of the claim. Id., at ¶ 20 & Ex. H. On February 21, 2008, Metropolitan sent a letter to NF A and Plaintiff denying his claim based upon the Maltempo engineer report. Id. ¶ 21. On March 26, 2008, John Donnelly of NFA sent a letter to FEMA appealing Metropolitan's denial of Plaintiff's flood loss claim. See Dkt. No. 15-26, Ex. G at 61:8; Dkt. No. 15-16, Ex. A-2.

On April 4, 2008, Metropolitan forwarded a summary and a copy of its claim file to FEMA at FEMA's request. See Dkt. No. 15-2 at ¶ 22. Then, on October 3, 2008, FEMA denied Plaintiff's appeal based upon Plaintiff's failure to promptly notify Metropolitan of the flood claim and due to the historic evidence of Plaintiff's damages resulting from ongoing erosion and land subsidence. See Dkt. No. 15-16, Ex. A-2. In February 2008 the Town of Catskill condemned Plaintiff's property. See Dkt. No. 15-23, Ex. F-3.

III. DISCUSSION

A. Legal Standard for Summary ...


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