# Wagner v. American Bankers Insurance Company of Florida

> District Court, E.D. Louisiana · May 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10190859

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10190859

## How later opinions describe it (automated extraction)

- holding that FEMA “regulations expressly preempt state tort law claims arising from claims handled by a WYO”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MECO WAGNER CIVIL ACTION

VERSUS NO: 23-4826

AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA ET AL. SECTION “H”

ORDER AND REASONS
Before the Court are Defendants American Bankers Insurance Company
of Florida and Assurant, Inc.’s Motion to Dismiss Action as Time Barred (Doc.
11) and Motion for Summary Judgment (Doc. 20). For the following reasons,
Defendants’ Motion to Dismiss Action as Time Barred is DENIED AS MOOT,
and Defendants’ Motion for Summary Judgment is GRANTED.

BACKGROUND
This case arises out of an insurance contract dispute following Hurricane
Ida. Plaintiff Meco Wagner alleges that Defendants American Bankers
Insurance Company of Florida and Assurant, Inc. issued a Standard Flood
Insurance Policy (“SFIP”) covering property located at 19208 Greenleaf Circle
in Ponchatoula, Louisiana (“the Policy”).1 Defendants provide flood insurance

1 Doc. 1 at 3–4. To be sure, Defendant American Bankers Insurance Company of Florida is a
WYO carrier, while Defendant Assurant, Inc. is not an insurer. Assurant, Inc. “indirectly
owns 100% of American Bankers Insurance Company of Florida.” Doc. 11-2 at 1. This
declaration is not among those that Plaintiff moves this Court to strike. See Doc. 12 at 2.
as a “Write Your Own” (“WYO”) carrier through the National Flood Insurance
Program (“NFIP”), which is administered by the Federal Emergency
Management Agency (“FEMA”).2 After Hurricane Ida, Plaintiff filed a claim
and sought insurance proceeds from Defendants under the Policy. Plaintiff
alleges that Defendants wrongfully withheld payment for Plaintiff’s claims by
improperly adjusting the damages and grossly undervaluing the damages and
costs to repair the covered property.3
On June 7, 2022, Plaintiff retained McClenny, Moseley & Associates,
PLLC (“MMA”) to represent her in the claims presently asserted against
Defendants.4 As a result of rulings across Louisiana addressing the misconduct
of attorneys at MMA, Plaintiff retained new counsel on June 9, 2023.5 Plaintiff
filed a Complaint on August 29, 2023, asserting various breach of contract,
breach of the duty of good faith and fair dealing, and negligent
misrepresentation claims. Plaintiff avers that she is entitled to damages for
the full value of her property, contents lost, loss of use, recoverable
depreciation, mold damage and remediation, debris clean up and removal, and
costs of compliance. Plaintiff also seeks statutory penalties, legal interest, and
attorney’s fees and costs.
On October 30, 2023, Defendants filed a Motion to Dismiss Action as
Time Barred, which Plaintiff opposed.6 On April 9, 2024, this Court converted
Defendants’ Motion to Dismiss to a Motion for Summary Judgment and

2 Congress created the National Flood Insurance Program pursuant to the National Flood
Insurance Act. 42 U.S.C. § 4001. In its capacity as a WYO insurer, Defendant is acting as
a fiscal agent of the United States. Wright v. Allstate Ins. Co., 415 F.3d 384, 386 (5th Cir.
2005) (citing 42 U.S.C. § 4071(a)(1)).
3 Doc. 1 at 4.
4 Doc. 12 at 1.
5 Id.
6 See generally id.
ordered the parties to supplement their pleadings.7 Defendants instead filed a
Motion for Summary Judgment on April 24, 2024. Accordingly, Defendants’
Motion to Dismiss is DENIED AS MOOT, and the Court will consider
Defendants’ arguments under the motion for summary judgment standard.

LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law.8
“If the moving party meets the initial burden of showing that there is no
genuine issue of material fact, the burden shifts to the non-moving party to
produce evidence or designate specific facts showing the existence of a genuine
issue for trial.”9 Summary judgment is appropriate if the non-movant “fails to
make a showing sufficient to establish the existence of an element essential to
that party’s case.”10 “The mere argued existence of a factual dispute will not
defeat an otherwise properly supported motion.”11

LAW AND ANALYSIS
Defendants argue that this case should be dismissed as time-barred
because “Plaintiff[] failed to file this action within one year from the date of
denial of [her] claim.”12 Defendants further aver that Plaintiff’s extra-
contractual claims for attorney’s fees, bad faith, costs, and interest are
preempted and barred by federal law.13 The Court therefore considers whether

7 Doc. 17.
8 FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
9 Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995).
10 Celotex Corp., 477 U.S. at 322.
11 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
12 Doc. 11 at 1.
13 Id.
Plaintiff’s contractual and extra-contractual claims must be dismissed under
the motion for summary judgment standard.
1. Contract Claims
Defendants aver that Plaintiff’s breach of contract claims against them
are time barred under 42 U.S.C. § 4072, which provides in pertinent part that:
[U]pon the disallowance by the Administrator of any such claim,
or upon the refusal of the claimant to accept the amount allowed
upon any such claim, the claimant, within one year after the date
of mailing notice of disallowance or partial disallowance by the
Administrator, may institute an action against the Administrator
. . . .14

The SFIP also includes the following provision:
You may not sue us to recover money under this policy unless you
have complied with all requirements of the policy. If you do sue,
you must start the suit within one year of the date of the written
denial of all or part of the claim . . . .15
This one-year limitations period applies to any claim brought under the SFIP
and to any dispute arising from the handling of such claim.16
Defendants attached to their Motion a copy of the letter denying
Plaintiff’s insurance claim dated October 20, 2021.17 Therein, Defendants
inform Plaintiff that they “denied a portion of [her] claim based on the
applicable provisions of the Standard Flood Insurance Policy (SFIP),” namely
her claim for flood damage to a wood privacy fence.18 Courts, including the
Fifth Circuit, have repeatedly held that letters with similar language
constitute “notice[s] of disallowance” that begin the one-year prescriptive

14 42 U.S.C. § 4072 (emphasis added).
15 44 C.F.R. pt. 61, App. A(1), Art. VII(R) (emphasis added); Wright, 415 F.3d at 386 (“The
terms of SFIP policies are dictated by FEMA.”).
16 44 C.F.R. pt. 61, App. A(1), Art. VII(R).
17 Doc. 20-4.
18 Id. at 3; Doc. 20-2 at 3.
period under the National Flood Insurance Act.19 Plaintiff, however, disputes
whether Defendants actually sent the letter to Plaintiff or her counsel.
To demonstrate that the notice of disallowance was mailed, Defendants
submitted the declaration of Shane Roberts, Senior Director for Assurant
Global P&C Claims, wherein he states that:
On October 20, 2021, ABIC sent a letter to Plaintiff identifying the
amount of loss for covered damages at the Property and denying a
portion of the claim as not being covered under the SFIP. The letter
was properly addressed to Plaintiff and mailed to Plaintiff via U.S.
Postal Service and emailed to Plaintiff.20
In response, Plaintiff asks this Court to strike certain paragraphs from the
declaration of Shane Roberts because he lacks personal knowledge of the facts
stated.
Indeed, a declaration used to support a motion for summary judgment
must be based on personal knowledge and show that the declarant is
competent to testify.21 In considering whether Mr. Roberts’s declarations are
supported by personal knowledge, the Court finds the Fifth Circuit’s analysis
in Crear v. Select Portfolio Servicing Inc. instructive.22 In finding that the
declarant satisfied the requirements of Federal Rule of Civil Procedure
56(c)(4), the court noted that:
[The declarant] stated that the declaration was made based on his
personal knowledge and established that he was competent to
testify. His testimony that the December 4, 2009, and July 16,
2010, letters were sent by certified mail is based on his knowledge
of his law firm’s ordinary practices and a review of its

19 See Bateman, 2024 WL 894790, at *2 (Vance, J.) (citing McInnis v. Liberty Mut. Fire Ins.
Co., No. 22-30022, 2022 WL 4594609, at *3 (5th Cir. Sept. 30, 2022); Cohen v. Allstate Ins.
Co., 924 F.3d 775, 781 (5th Cir. 2019)); Verret v. SafeCo Ins. Co. of Am., No. 23-2292, 2023
WL 5608018 (E.D. La. Aug. 30, 2023) (Brown, J.).
20 Doc. 20-2 at 3.
21 FED. R. CIV. P. 56(c)(4).
22 760 F. App’x 291, 295 (5th Cir. 2019).
recordkeeping system. We have recognized that an affiant may
have personal knowledge of an organization’s practices by
participating in those practices and reviewing the organization’s
records.23
Here, Mr. Roberts states that his personal knowledge is derived from the
fact that, in his capacity as Senior Director for Assurant Global P&C Claims,
he is the corporate representative of Defendants for flood claims, and he is the
custodian of Defendants’ records for Plaintiff Meco Wagner’s case.24 Mr.
Roberts also attached a copy of the letter to his declaration. Accordingly, this
Court finds that Mr. Roberts’s declaration is prima facie evidence that the
notice of disallowance was mailed to Plaintiff on October 20, 2021, and
Defendants have carried their burden of demonstrating that Plaintiff’s breach
of contract claims are time barred.
The burden shifts to Plaintiff to produce evidence or designate specific
facts showing the existence of a genuine issue for trial.25 Plaintiff responds that
it is “factually contested” whether “Defendants mailed the alleged October 20,
2021 denial letter to Plaintiff” and whether “Defendants have proof” that the
letter was actually mailed.26 Plaintiff’s conclusory allegation that there is “no
proof” that Defendants sent the notice of disallowance is insufficient to
establish that a material fact is genuinely disputed.27 Plaintiff fails to
otherwise provide any competent summary judgment evidence or point to any
facts to carry her burden in creating a genuine issue of material fact.

23 Id. at 294 n.1 (citing F.D.I.C. v. Patel, 46 F.3d 482, 484 (5th Cir. 1995)).
24 Doc. 20-2 at 1.
25 Engstrom, 47 F.3d at 1462.
26 Doc. 22 at 3.
27 Perkins v. Bank of Am., 602 F. App’x 178, 181 (5th Cir. 2015) (“[Plaintiff’s] assertion in his
original petition filed in state court that ‘[t]here is no proof that [defendant] sent a proper
default letter,’ is not sufficient evidence to establish the existence of a genuine issue of
material fact for summary judgment purposes.”).
Accordingly, the Court finds that there remains no issue of material fact as to
whether Defendants mailed the notice of disallowance to Plaintiff.
Because Plaintiff filed her Complaint over one year after Defendants
mailed the notice of disallowance,28 this Court finds that Plaintiff’s breach of
contract claim has prescribed pursuant to 42 U.S.C. § 4072.29 As an alternative
to dismissal, Plaintiff asks this Court to “permit discovery on the issue of notice
and the issuing of correspondence either to Plaintiff directly or with Plaintiff’s
former MMA attorneys.”30 Federal Rule of Procedure 56(d) permits courts to
defer or deny a motion for summary judgment and allow time to obtain
affidavits or declarations or to take discovery “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.” Because Plaintiff has failed to provide any
such affidavit or declaration, the Court declines to defer ruling on this Motion.
Plaintiff’s contractual claims must therefore be dismissed as time barred.
2. Extra-Contractual Claims
Defendants next argue that Plaintiff’s extra-contractual claims are
preempted by federal law. In response, Plaintiff has “agree[d] to dismiss all
other claims for extra-contractual relief that are not permitted as a matter of
law.”31 The NFIP was established by the National Flood Insurance Act of 1968
and is administered by FEMA.32 In 1977, FEMA promulgated the SFIP, which

28 See Doc. 1 (filed August 29, 2023).
29 While a plaintiff may recover attorney’s fees and costs from FEMA pursuant to the Equal
Access to Justice Act (EAJA), Plaintiff has not sued FEMA. See Qader v. Federal
Emergency Mgmt. Agency, 543 F. Supp. 2d 558, 563 (E.D. La. 2008) (Feldman, J.) (citations
omitted). Accordingly, Plaintiff is not entitled to attorney’s fees and costs against
Defendants. See Dwyer v. Fid. Nat’l Prop. & Cas. Ins. Co., 565 F.3d 284, 289–90 (5th Cir.
2009) (“[S]erving as a fiscal agent and a participant in a heavily regulated federal program
did not transform [the WYO carrier] into a federal agency under the EAJA.”).
30 Doc. 22 at 2.
31 Doc. 22 at 5.
32 Gallup v. Omaha Prop. and Cas. Ins. Co., 434 F.3d 341, 342 (5th Cir. 2005).
allows private insurers to operate as WYO companies.33 These WYO insurance
companies issue their own SFIPs and arrange for the adjustment, settlement,
payment, and defense of claims arising out of these policies.34 FEMA
administers the SFIP, and claims are ultimately paid out of the United States
Treasury.35 In 2000, FEMA added the following language to Article IX of the
SFIP:
IX. What Law Governs
This policy and all disputes arising from the handling of any claim
under the policy are governed exclusively by the flood insurance
regulations issued by FEMA, the National Flood Insurance Act of
1968, as amended (42 U.S.C. § 4001, et seq.), and Federal common
law.36
Following the promulgation of this regulation, the Fifth Circuit
reaffirmed its holding in Wright v. Allstate Insurance Co., where it held “that
state law tort claims arising from claims handling by a WYO are preempted by
the National Flood Insurance Act.”37 It is now settled law that any claims for
damages, penalties, and attorney’s fees under state law are preempted.38 “In
other words, insureds under SFIP policies have one remedy, and only one
remedy for nonpayment of claims: a suit for breach of contract.”39 As such,

33 Id.
34 Id.
35 Id. at 343.
36 44 C.F.R. pt. 61, App. A(1), Art. IX (2001).
37 Gallup, 434 F.3d at 345 (citing Wright v. Allstate Ins. Co., 415 F.3d 384 (5th Cir. 2005)).
38 Favaro v. Wright Nat’l Flood Ins. Co., No. CV 17-1711, 2018 WL 3419271, at *3 (M.D. La.
July 13, 2018) (holding that “relying on well-settled, binding Fifth Circuit jurisprudence,
the Court finds that Plaintiffs’ state law claims are preempted by federal law”); Howell-
Douglas v. Fid. Nat’l Indem. Ins. Co., 24 F. Supp. 3d 579, 583 (E.D. La. 2014) (holding that
FEMA “regulations expressly preempt state tort law claims arising from claims handled
by a WYO”); Nichols v. Wright Nat’l Flood Ins., No. 18-441, 2019 WL 639170, at *3 (W.D.
La. Jan. 16, 2019) (stating that “[t]he Fifth Circuit has clearly held that federal law
preempts state law tort claims arising from claims handling by a WYO insurer”).
39 Howell-Douglas, 24 F. Supp. 3d at 583.
Plaintiff's extracontractual state law claims for negligent misrepresentation,
breach of the duty of good faith and fair dealing, statutory penalties, and
related attorney’s fees and costs are preempted and barred.

CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. 11) is
DENIED AS MOOT, and Defendants’ Motion for Summary Judgment (Doc.
20) is GRANTED. Plaintiffs claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana this 23rd day of May, 2024.

gy TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190859. Public record. Not legal advice.