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November 29, 2017

Recent Victories for PK Law Flood Team

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By:  Kayleigh Toth Keilty, Esquire

The PK Law Flood Team handles litigation for a variety of carriers in several jurisdictions including federal and state courts in Maryland, Pennsylvania, New Jersey, New York, New Hampshire, Tennessee, North Carolina, Florida, Alabama, Texas, Minnesota, Louisiana and Oregon. In this article, we highlight several recent victories.

Crawford Nixon v. Nationwide Mutual Insurance Company, 244 F. Supp. 3d 1245 (2017).

            After initial success eliminating the Insured’s claim for extra-contractual damages by way of a motion to dismiss, the Parties proceeded with discovery as to the Insured’s damages.  Following discovery, Nationwide filed a Motion for Summary Judgment on the basis that, inter alia, the Insured’s land and relocation damages as well as certain temporary repairs were not covered under the terms of the SFIP.  Prior to the United States District Court for the Northern District of Alabama’s decision in this case, there was no relevant law in the instant jurisdiction or 11th Circuit on the issues presented.  Indeed, there was limited case law available nationally on these issues.  In granting Nationwide’s Motion for Summary Judgment, Judge Scott L. Coogler found that the evidence provided in connection with the Insured’s “land damage” including “river bank erosion mitigation” and “additional concrete work needed to substantially repair and stabilize [the] bank” were limited to the land and included no repairs to the actual home, thus, were not covered by the SFIP.  Further, Judge Coogler agreed with Nationwide that the policy does not provide for expenses associated with the relocation of a home, as an insured may only elect to repair or replace the damaged dwelling. Accordingly, the Court granted summary judgment in favor of Nationwide as to the Insured’s damages and terminated the case.  Nationwide then successfully defended, not one but two, Motions to Alter or Amend Judgment with respect to the Court’s March 21, 2017 opinion. 

            This victory was especially critical in creating precedent within the 11th Circuit that certain damages to land and in connection with loss of use and loss avoidance are limited or not available under the terms of the SFIP.

 

Surfsand Resort, LLC v. Nationwide Mutual Fire Insurance Company, 2017 WL 4678205 (October 16, 2017).

            In a published decision, Judge Anna J. Brown granted Nationwide’s Motion to Dismiss Plaintiff’s extra-contractual claims, including a claims under state-law and federal common law bad faith, and request for a jury trial.  Prior to Judge Brown’s decision, the 9th Circuit had not yet decided in a published decision whether state-law claims against WYO providers, such as Nationwide, related to SFIPs were preempted by federal law.  In its motions, Nationwide emphasized that while the 9th Circuit had not yet issued a decision, every other circuit court to consider the issue concluded that such state-law claims are preempted by federal law citing to the 3rd, 4th, 5th, 6th, 8th, 10th and 11th Circuits. With respect to Plaintiff’s claim under federal common law, the Court adopted the reasoning and analysis that Nationwide cited in its reply from the 5th and 8th Circuits concluding that federal common law claims were simply re-labeled state law claims and also preempted by federal law. With this opinion, the District of Oregon is now added to the plethora of federal circuit and district courts to conclude state and federal law claims for extra-contractual damages related to an SFIP are preempted.

            Moreover, the District Court of Oregon adopted the reasoning of the Northern District of California, District of New Jersey, Northern District of Ohio, and Northern District of Mississippi in determining that requests for attorneys’ fees pursuant to state-law statutes are similarly preempted.  With this decision, in addition to a published decision within the 9th Circuit jurisdiction that state law and federal common law claims for extra-contractual damages preempted, the District of Oregon has established that claims for attorney’s fees are similarly preempted. 

 

William Drewer v. Nationwide Mutual Fire Insurance Company, Civil Complaint Filing No. 27-1001-17-00020 (Maryland Insurance Administration)

            Nationwide Insured, William Drewer, filed an administrative complaint in the Maryland Insurance Administration (“MIA”) relating to alleged damages following a flood loss.  After briefing, the Director of Hearings issued a letter to the parties echoing Nationwide’s analysis that “[state regulatory bodies] do not have jurisdiction over claims submitted by insured under policies issued under the NFIP’s WYO program.”  The MIA further noted that “it is well recognized that federal law preempted the application of any state law against a WUP carrier in connection with the handing or payment of a federal flood program.”  The Director concluded that the MIA does not have jurisdiction.

 

PK Law’s Flood Team is lead by PK Law Member, Patricia McHugh Lambert.  Ms. Lambert can be reached at (410) 339-6759 or plambert@pklaw.com.