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CONTINENTAL IMPORTS v. MACY

February 23, 1981

CONTINENTAL IMPORTS, INC.
v.
John W. MACY, Jr., Director, Federal Emergency Management Agency



The opinion of the court was delivered by: GREEN

MEMORANDUM

According to the amended complaint (the complaint), on or about December 20, 1977, the premises of plaintiff Continental Imports, Inc. (Continental), were damaged by a flood. Plaintiff, who had a flood insurance policy issued pursuant to the National Flood Insurance Act, 42 U.S.C. § 4001 et seq., brought this action under the provisions of that act, 42 U.S.C. §§ 4053 and 4072, to recover some $ 16,965.00 in alleged damages. The defendants have moved for summary judgment. *fn1" For the reasons that follow, I will grant that motion.

 The contract of insurance in question, a Standard Flood Insurance Policy, clearly sets forth the insured's obligations when reporting a loss:

 
Within 60 days after the loss, unless such time is extended in writing by the Insurer, the Insured shall render to the Insurer, a proof of loss, signed and sworn to by the Insured, stating the knowledge and belief of the Insured as to the following: the time and origin of the loss, the interest of the Insured and of all others in the property, actual cash value of each item thereon and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described and in the several parts thereof were occupied at the time of loss. The Insured, at the option of the Insurer, may be required to furnish a complete inventory of the destroyed, damaged and undamaged property, showing in detail quantities, costs, actual cash value and amount of loss claimed, and verified plans and specifications of any building, fixtures or machinery destroyed or damaged.
 
(Paragraph O, p.3 of contract, attached as Exhibit A to the complaint)

 The insurance agreement also contains the following language regarding waivers of terms of the contract:

 
No permission affecting this insurance shall exist, or waiver of any provision be valid, unless granted herein or expressed in writing added hereto. No provision, stipulation or forfeiture shall be held to be waived by any requirement or proceeding on the part of the Insurer relating to the appraisal or to any examination provided for herein.
 
(Paragraph D, p.2 of contract, Exhibit A)

 It is undisputed that in this case there has not been any written waiver of the proof of loss requirement. The contract further provides:

 
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all of the requirements of this policy shall have been complied with, ....
 
(Paragraph T, p.3 of contract, Exhibit A)

 As an additional buttress to their contention that no effective waiver of the proof of loss requirement has occurred, defendants cite one of the federal regulations, 44 C.F.R. § 61.13(d) concerning the National Flood Insurance Act, which states:

 
The Standard Flood Insurance Policy and required endorsements must be used in the Flood Insurance Program, and no provision of the said documents shall be altered, varied or waived other than through the issuance of an appropriate amendatory endorsement, ...

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