citing, inter alia, Fed. R. App. P. 28(a)([8])(A)
How later courts described this case
- citing, inter alia, Fed. R. App. P. 28(a)([8])(A)
- holding that “plaintiffs have waived any non-jurisdictional grounds for remand existing at the time of removal by not moving to remand within 30 days of the notice of removal”
Written by the judges who cited it.
The opinion
Case: 20-30525 Document: 00515933142 Page: 1 Date Filed: 07/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 12, 2021
No. 20-30525
Lyle W. Cayce
Clerk
Fannie Brown,
Plaintiff—Appellant,
versus
Wright National Flood Insurance Company; Liberty
Personal Insurance Company,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CV-1069
Before King, Dennis, and Ho, Circuit Judges.
Per Curiam:*
Plaintiff Fannie Brown appeals the district court’s dismissal with
prejudice of her claims against Wright National Flood Insurance Company
(“Wright”) and Liberty Personal Insurance Company (“Liberty”). We
AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-30525 Document: 00515933142 Page: 2 Date Filed: 07/12/2021
No. 20-30525
I.
These insurance disputes arise out of damages allegedly sustained
from two separate events—a flood in Baton Rouge, Louisiana in 2016, and a
motor vehicle accident in 2017. Brown, a Louisiana citizen, owns residential
property in Baton Rouge. On August 13, 2016, Brown’s property was
damaged as a result of a serious flood event. At the time, Brown’s property
was insured under two policies: (1) a Standard Flood Insurance Policy
(“SFIP”) issued by Wright and (2) a homeowner’s insurance policy issued
by Liberty.
Wright, a citizen of Texas and Florida, issued the SFIP in accordance
with the National Flood Insurance Program (“NFIP”). “An SFIP is ‘a
regulation of [the Federal Emergency Management Agency], stating the
conditions under which federal flood-insurance funds may be disbursed to
eligible policyholders.’” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529,
531 (5th Cir. 2015) (quoting Marseilles Homeowners Condo. Ass’n Inc. v.
Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1054 (5th Cir. 2008)). Article VII of
the SFIP addresses the policy’s proof-of-loss requirement. It reads, in
pertinent part: “In case of a flood loss to insured property, [the insured]
must: . . . Within 60 days after the loss, send [the insurer] a proof of loss,
which is your statement of the amount you are claiming under the policy
signed and sworn to by you[.]” 44 C.F.R. pt. 61, app. A(1) art. VII(J).
Following the flood, Brown filed a claim with Wright for damages.
After an adjuster inspected the property, Brown signed a sworn Proof of Loss
for $110,245.46, which Wright paid in full in February 2017. In August 2017,
a second adjuster inspected Brown’s property and estimated $145,883.47 in
total damages stemming from the flood. Brown signed a Proof of Loss for
that amount, and Wright issued supplemental payments, bringing its total
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payments to Brown to $145,883.47. Brown has not submitted any further
signed and sworn Proofs of Loss to Wright.
In 2016, Brown also filed a claim pursuant to her homeowner’s
insurance policy with Liberty, a citizen of New Hampshire and
Massachusetts. She sought compensation for property damage and
assistance with living expenses occasioned by the flood. Her homeowner’s
insurance policy provided coverage for various types of losses but expressly
excluded coverage for flood damage. Section I of the policy, which is titled
“Exclusions,” states:
We do not insure for loss caused directly or indirectly by any of
the following. Such loss is excluded regardless of any other
cause or event contributing concurrently or in any sequence to
the loss. . . .
Water damage, meaning:
(1) Flood, surface water, waves, tidal water, overflow of a body
of water, or spray from any of these, whether or not driven by
wind; . . .
(3) Water below the surface of the ground, including water
which exerts pressure on or seeps or leaks through a building,
sidewalk, driveway, foundation, swimming pool or other
structure.
Based on this exclusionary language, Liberty denied Brown’s claim.
Brown also held an automobile liability policy issued by Liberty. The
policy provided, inter alia, economic-only uninsured/underinsured motorist
(“UM”) coverage. Under this policy, Liberty compensates an insured for
her economic losses only when her covered losses exceed the liability limits
of an underinsured tortfeasor’s motor vehicle policy. Economic losses are
defined by the policy as including, inter alia, reasonable medical expenses and
lost wages or salary. Non-economic losses, which are excluded from
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coverage, include “pain; suffering; inconvenience; mental anguish, and any
other non-economic damages otherwise recoverable under the laws of
Louisiana” (capitalization altered and numbering omitted).
In January 2017, Brown’s motor vehicle was struck by Geraldine
Clark. Clark, whose fault for the collision was uncontested, had automobile
insurance through Louisiana Farm Bureau Casualty Insurance Company
(“Farm Bureau”) with coverage capped at $15,000.
In January 2018, Brown, represented by counsel, filed suit in
Louisiana state court against Liberty, Clark, and Farm Bureau for claims
arising from the motor vehicle accident. As to Liberty, Brown sought
payment for economic losses insofar as they exceeded the limits of Clark’s
automotive policy with Farm Bureau. In August 2018, Brown settled her
claims against Clark and Farm Bureau, and these defendants were dismissed
from the case.
Later that month, Brown amended her suit to assert additional claims
against Liberty and to add Wright as a defendant. Brown’s new causes of
action all related to the 2016 flood. Regarding Wright, Brown alleged that
the insurer owed her an additional payment under her SFIP beyond the
amount it had already disbursed. She further claimed that Liberty, pursuant
to her homeowner’s policy, owed payment for damages and expenses
incurred due to the flood. Both insurers, Brown alleged, had violated
Louisiana law by engaging in unfair and deceptive insurance practices in their
processing of her flood-related claims. Brown alleged that the full amount of
her losses exceeded $290,000.
With the consent of Liberty, Wright removed the suit to federal court
on December 7, 2018, invoking the court’s federal question jurisdiction and
supplemental jurisdiction under 28 U.S.C. §§ 1331 & 1367, and diversity
jurisdiction under 28 U.S.C. § 1332.
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Brown moved to remand the case to state court on February 8, 2019.
The district court denied the motion. Without reaching the issue of federal
question jurisdiction, the court determined that it had diversity jurisdiction
and that Brown had waived any procedural defects in regard to removal by
failing to file a motion to remand within thirty days of the filing of the notice
of removal.
Following discovery, Liberty filed a motion for partial summary
judgment on Brown’s homeowner’s insurance policy claims. Liberty
contended that the policy expressly excluded coverage for losses caused by
flooding, and therefore Brown was not entitled to payment from Liberty for
her flood-related losses. In November 2019, the court granted the motion.
Noting that Brown did not oppose the motion or request an extension of time
to respond, the district court permitted Brown fourteen days to explain why
she had not complied with the court’s filing deadlines and to submit a
memorandum in opposition to Liberty’s motion. Brown failed to do so.
Wright also filed a motion for partial summary judgment on Brown’s
SFIP claims relating to the 2016 flooding. Wright argued that Brown failed
to comply with the requirements of the SFIP because she had not timely
submitted a signed and sworn Proof of Loss for a sum greater than the amount
she had already been paid by Wright. The district court agreed and granted
Wright’s motion on July 23, 2020.
On the same day, the district court also denied Brown’s motion for
summary judgment against Liberty and Wright. The court found that,
“despite [its] best efforts to parse it, [the motion] is so convoluted and poorly
structured that it fails to advance any coherent argument whatsoever.”
Brown had not “clearly identified the claims at issue nor furnished
competent summary judgment evidence in support of a comprehensible
argument,” and thus failed to carry her burden at summary judgment. On
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August 10, 2020, Brown filed a notice of appeal styled as a “Motion to
Appeal.”
Separately, Liberty filed a motion for partial summary judgment on
Brown’s claims regarding her UM coverage. Liberty argued that, in order to
recover damages under the economic-only provision of her automobile
policy, Brown was required to prove, inter alia, that (1) Clark, the party
responsible for the accident, was uninsured or underinsured and (2) Brown
had sustained economic losses, as defined by the policy, exceeding the
$15,000 that she had already been paid by Clark and Clark’s insurer, Farm
Bureau. Because Brown failed to identify any evidence that she suffered
economic damages exceeding $15,000, Liberty asserted that Brown could not
prove damages, an essential element of her UM claim.
On August 17, 2020, the district court granted Liberty’s motion. The
court determined that Brown had not produced any evidence on the extent
of her damages as required to prevail on her claim for payment of economic
losses under her UM policy. The court also dismissed Brown’s related claim
against Liberty for bad faith penalties because that claim is not viable when
the underlying claim for payment under the policy fails.
The district court entered judgment dismissing Brown’s claims
against Liberty and Wright with prejudice on August 19, 2020. Thereafter,
on August 28, 2020, Brown filed a “Notice of Appeal Amending the Motion
for Appeal.”
II.
We review de novo the district court’s order denying remand, and its
orders granting summary judgment and partial summary judgment. Holder
v. Abbott Labs., Inc., 444 F.3d 383, 386 (5th Cir. 2006); EEOC v. WC&M
Enterprs., Inc., 496 F.3d 393, 397 (5th Cir. 2007). In reviewing a summary
judgment, we apply the same standards as the district court. WC&M
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Enterprs., 496 F.3d at 397. Summary judgment is only appropriate where
“the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
III.
Brown first challenges the district court’s denial of her motion to
remand. 1 She asserts various arguments as to why removal was purportedly
“waived” by Liberty. Title 28 U.S.C. § 1447(c) provides, in pertinent part:
“A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of the
notice of removal[.]” Brown filed her motion to remand well after the thirty-
day period to challenge non-jurisdictional defects expired, and therefore
forfeited any argument that Liberty waived removal. See, e.g., In re Shell Oil
Co., 932 F.2d 1518, 1523 (5th Cir. 1991) (holding that “plaintiffs have waived
any non-jurisdictional grounds for remand existing at the time of removal by
not moving to remand within 30 days of the notice of removal”).
Brown also argues that the district court should have remanded the
case to state court because it lacked subject matter jurisdiction. Brown’s
contention appears to rest on the supposition that the pleading the federal
court should look to in evaluating whether diversity jurisdiction existed at the
time of removal is her original state court petition and not her amended state
court petition—even though the latter was the operative petition at the time
1
Brown’s original notice of appeal was premature because it was filed before final
judgment had been rendered, and the district never certified the orders granting partial
summary judgments for interlocutory appeal under Federal Rule of Civil Procedure 54(b).
But, “[b]ecause [Brown] filed a second, timely notice of appeal from the district court’s
final summary judgment order” and its entry of final judgment, we have jurisdiction over
this appeal. Macklin v. City of New Orleans, 293 F.3d 237, 240 n.1 (5th Cir. 2002).
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No. 20-30525
of removal. 2 Because Clark and her insurer, Farm Bureau, were defendants
in the original petition and because they, like Brown, are Louisiana citizens,
their presence in the case destroys diversity, according to Brown. This is so,
Brown argues, despite the fact that both Clark and Farm Bureau were
dismissed with prejudice on August 20, 2018, and thus were no longer parties
at the time Brown filed her amended petition on August 31, 2018, nor, of
course, when Wright removed the action in December 2018.
It is well-established that “[t]he jurisdictional facts that support
removal must be judged at the time of the removal.” Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). There is no dispute that, at
the time of removal, the parties to the case were completely diverse, and it is
irrelevant for purposes of federal jurisdiction that, at some earlier time, there
was a lack of diversity. See id. 3.
Brown also suggests that the amount-in-controversy requirement is
not satisfied. “This requirement is met if . . . it is apparent from the face of
2
We note that Brown is represented by counsel on appeal just as she was in her
district court proceedings. Counseled briefs are not accorded the same liberal construction
given to arguments raised by pro se litigants. E.g. United States v. Villarreal-Gonzalez, 265
F. App’x 429, 430 (5th Cir. 2008).
3
Brown’s reliance on Cavallini v. State Farm Mut. Auto Ins. Co. is misplaced. See
44 F.3d 256 (5th Cir. 1995). Brown cites the following sentence in Cavallini, which is
actually contained in a citation to another case: “The second amended complaint should
not have been considered in determining the right to remove, which in a case like the
present one [removal based on diverse defendant’s claim that controversy as to it was
separable from claims against nondiverse defendants] was to be determined according to
the plaintiffs’ pleading at the time of the petition for removal.” Id. at 264 (alterations in
original) (quoting Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939)). Contrary to Brown’s
contention, this quotation makes clear that the plaintiff’s pleading that is to be considered
in determining the existence of diversity jurisdiction is the one that is operative “at the time
of . . . removal.” Pullman Co., 305 U.S. at 537. In this case, that pleading is Brown’s
amended petition, and, again, there is no dispute that parties to the amended petition are
completely diverse.
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No. 20-30525
the petition that the claims are likely to exceed $75,000.” Manguno v.
Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Here,
Brown’s petition alleges that the insurers owe her more than $290,000 for
flood-related property losses. The amount-in-controversy requirement is
easily met. See id. The district court had subject matter jurisdiction and
properly denied the motion to remand.
Brown fails to discernibly challenge the district court’s grants of
partial summary judgment to Liberty and summary judgment to Wright or its
denial of her motion for summary judgment. She thus forfeits any challenge
to these orders. See, e.g., Procter & Gamble Co. v. Amway Corp., 376 F.3d 496,
499 n.1 (5th Cir. 2004) (citing, inter alia, Fed. R. App. P. 28(a)([8])(A)).
Moreover, even if Brown had not forfeited argument respecting these orders,
the district court committed no reversible error.
As to the claims against Liberty in connection with Brown’s
homeowner’s insurance policy, the language in the policy unambiguously
excludes coverage for flooding. Brown thus cannot prevail on her claim for
loss-of-use and property damage caused by flooding in 2016. Likewise,
summary judgment for Liberty was appropriate as to the claims against
Liberty arising out of Brown’s economic-only UM policy. Louisiana law
requires that an insurer be provided with sufficient facts to “establish the
extent of” an insured’s damages. Reed v. State Farm Mut. Auto. Ins. Co.,
2003-0107 (La. 10/21/03); 857 So. 2d 1012, 1022. Brown failed to produce
competent summary judgment of her damages, and hence could not sustain
an essential element of her uninsured motorist claim. See id. Consequently,
she also could not maintain a bad faith claim against Liberty. See id. 1020-21.
Last, Brown’s claim against Wright relating to her SFIP lacks merit.
As “an insurance policy issued pursuant to a federal program,” the
provisions of an SFIP are to be “strictly construed and enforced.” Ferraro,
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796 F.3d at 532 (quoting Gowland v Aetna, 143 F.3d 951, 955 (5th Cir. 1998)).
The plain language of Wright’s SFIP requires the policyholder to provide a
“signed and sworn” Proof of Loss. 44 C.F.R. pt. 61, app. A(1) art. VII(J).
Further, the policy requires compliance with this provision in order for suit
to be brought against the insurer:
You may not sue us to recover money under this policy unless
you have complied with all the requirements of the policy. . . .
This requirement applies to any claim that you may have under
this policy and to any dispute that you may have arising out of
the handling of any claim under the policy.
Id. art. VII(R). “An insured’s failure to strictly comply with the SFIP’s
provisions—including the proof-of-loss requirement—relieves the federal
insurer’s obligation to pay the non-compliant claim.” Ferraro, 796 F.3d at
534. Brown provided no evidence that she submitted a signed and sworn
Proof of Loss to Wright for damages related to the 2016 flooding in excess of
the amount Wright already paid to her. Accordingly, Brown failed to raise a
genuine issue as to whether she complied with a condition precedent,
imposed by regulation, for her to sue Wright. The district court thus properly
granted summary judgment to Wright. And because the district court
correctly granted summary judgment on all claims to the insurers, it did not
err in denying Brown’s motion for summary judgment.
IV.
For these reasons, the judgment of the district court is AFFIRMED.
10