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Foster v. Federal Emergency Management Agency

United States District Court, Sixth Circuit

June 20, 2013



JOHN G. HEYBURN, II, District Judge.

Plaintiff Carolyn Foster filed this lawsuit to recover insurance benefits from a flood policy issued by the Federal Emergency Management Agency ("FEMA") after a dwelling she owned suffered damages due to the flooding of the nearby Ohio River. FEMA has now moved to dismiss Plaintiff's complaint, or in the alternative for summary judgment as to Plaintiff's single claim.

The Court has reviewed the relevant briefs and record evidence. The rules for recovering flood insurance benefits are quite strict. Unfortunately, as the following discussion shows, Plaintiff failed to file a proper Proof of Loss claim and the benefits she did seek are unavailable under the coverage which she invoked. Under the applicable law, these are not mere technicalities. As this Memorandum explains, these issues require the Court to sustain FEMA's motion for summary judgment.


Plaintiff owned a small, cabin-like dwelling located at 3125 Upper River Road in Louisville, Kentucky ("dwelling"), which she used as a private retreat and art studio. The dwelling, constructed around 1925, stands in a Special Flood Hazard Area due to its proximity to the Ohio River. On April 21, 2011, the Ohio River flooded and submerged the dwelling in several feet of flood water. Specifically, a FEMA expert determined that 36 inches of water accumulated inside the dwelling and 66 inches of water accumulated outside the building for approximately 13 days.

Plaintiff purchased a flood insurance policy from the United States. Congress enacted the National Flood Insurance Act, 42 U.S.C. § 4001 ("NFIA"), which promulgated a federal flood insurance program to fill the gap left by private insurance companies that maintained flood insurance policies that were either nonexistent or too expensive. To protect consumers living in flood-prone areas, the NFIA established the National Flood Insurance Program, through which FEMA, currently a sub-department of the Department of Homeland Security, administers a Standard Flood Insurance Policy ("SFIP"), codified at 44 C.F.R. § 61, App. A(1). 42 U.S.C. § 4011(a). Plaintiff's SFIP provided the following three types of relevant coverage: Coverage A, $59, 000 for flood damage to the building with a $1, 000 deductible; Coverage B, $5, 600 for flood damage related to the contents of the building with a $1, 000 deductible; and Coverage D, $30, 000 for flood damage leading to increased costs of compliance with state and local flood regulations and ordinances.

On June 3, 2011, Plaintiff filed a Proof of Loss with FEMA, claiming $19, 243.64 in flood damage under Coverage A, an amount Plaintiff calculated with the assistance of a FEMA adjuster ("June POL"). FEMA paid the full amount on June 9, 2011. On July 15, 2011, Plaintiff signed and submitted a second Proof of Loss for the full amount of her policy under Coverage B ("July POL"). After granting Plaintiff a waiver for filing the July POL after the permissible time period for doing so, FEMA paid the full amount of the claim on August 19, 2011.

Shortly after Plaintiff submitted the July POL, on July 22, 2011, Louisville-Jefferson County Metro Government informed Plaintiff that the dwelling was a candidate for demolition due to the severity of flood damage it sustained in the April 21, 2011 flood. Months later, on November 15, 2011, the Metropolitan Sewer District ("MSD") issued Plaintiff a substantial damage determination letter, on which the MSD notified Plaintiff that the cost to repair the flood damage exceeded 50% of the market value of the dwelling, and the building either needed to be brought into compliance with current building codes or be demolished. To bring the dwelling into compliance with building codes, Plaintiff would need to elevate the dwelling seventeen feet above its existing ground elevation. Plaintiff obtained a wrecking permit and demolished the dwelling.

Subsequent to the demolition, Plaintiff submitted a supplemental claim to FEMA for damage relating to the demolition of her dwelling for the amount remaining under Coverage A, or $39, 756.36 ("Supplemental Claim"). On August 31, 2011, FEMA sent an inspector to Plaintiff's property; this inspector determined that poor and deteriorated construction, not the flood, caused the damage to the dwelling that led to its demolition. FEMA denied the supplemental claim on those grounds on October 24, 2011. Plaintiff then retained her own expert who concluded that the flood was the precipitating event for the dwelling's destruction on October 25, 2011. Plaintiff wrote to FEMA appealing its denial of her supplemental claim. In FEMA's response, it agreed with its prior decision to deny the claim, and informed Plaintiff that FEMA will conduct no further administrative review. FEMA directed Plaintiff to review the SFIP for instructions on how to sue for this denial. Pursuant to those instructions, Plaintiff filed suit on October 19, 2012, within one year of the initial denial of the supplemental claim.


Defendant now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative for summary judgment pursuant to Federal Rule 56. These two motions implicate different standards of review for the Court. This Court recognizes two types of Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction. Hanbali v. Chertoff, 2007 WL 2407232, *1 (W.D. Ky. Aug. 17, 2007).

A facial attack challenges the court's subject matter jurisdiction based upon the sufficiency of the pleadings. In considering a "facial attack", a court will consider the material allegations of fact set forth in the complaint as being true and construe them in a light most favorable to the nonmoving party. In considering a "factual attack", challenging the court's subject matter jurisdiction based upon the facts as alleged in the pleadings, a court will not presume the allegations of fact in the complaint to be true. Rather, the district court will weigh the conflicting evidence to determine whether the proper jurisdiction exists. The plaintiff bears the burden of demonstrating that the Court has jurisdiction over the subject matter.

Id. (quoting United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 324-25 (6th Cir. 1990)) (internal citations omitted). FEMA seems to present both a facial and a factual attack to subject matter jurisdiction under Rule 12(b)(1).

In sum, under Rule 12(b)(1), the plaintiff must prove jurisdiction to survive the motion, either on the face of the complaint or through factual allegations, which the Court is entitled to weigh against contradicting factual assertions in resolving whether the facts support jurisdiction. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). Parties are permitted to supplement the record with ...

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