provide documentation supporting the losses they are claiming.
Defendants base this argument on the policy's language which
states "[s]hould a flood loss occur to your insured property,
you must . . . [d]ocument the loss with all bills, receipts, and
related documents for the amount being claimed." Standard Flood
Insurance Policy, Article 9, Paragraph J(5). Because the
plaintiffs' home suffered flood damage in 1996 and because FEMA
paid them for such damage, defendants argue that plaintiffs were
required to document any repairs done after the 1996 flood.
Defendants state that failure to provide such documentation is
jurisdictional and precludes plaintiffs from having their claim
heard in federal court.
Plaintiffs seemingly admit that (1) they did not provide bills
and receipts regarding repairs made for prior flood damage and
that (2) their flood insurance policy includes Article 9,
paragraph J(5) quoted above. However, plaintiffs argue the
policy does not make it a condition precedent that receipts and
bills for prior losses be submitted prior to receiving benefits
under the policy. Plaintiffs argue that because the policy must
be construed in their favor the policy should not be read to
make receipts and bills for prior losses a condition precedent
for receiving coverage.
The court rejects defendants' jurisdictional argument.
Defendants confuse the requirement under Rule 8(a) of the
Federal Rules of Civil Procedure that a complaint set forth a
short and plain statement of the claim so as to put defendants
on notice of the claim, with the requirement under plaintiffs'
policy that they "document the loss." Although defendants may
ultimately prevail in showing that plaintiffs have not provided
sufficient documentation to prove the losses identified in the
proof of loss statement submitted by plaintiffs — including,
perhaps, the lack of bills or other documentation that repairs
were in fact made to the property damaged by an earlier flood —
an issue not before this court at this time, the mere failure to
submit such bills and receipts with the proof of loss does not
raise a jurisdictional barrier to plaintiffs' claim warranting
dismissal of the plaintiffs' complaint at this point in the
litigation.*fn5 Nor do the cases cited by the defendants
stand for the proposition that a claim should be dismissed if
the claimant fails to provide receipts and bills regarding prior
losses for which FEMA had compensated those claimants. See,
e.g., Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998)
(finding plaintiff failed to file a timely proof of loss);
Forman v. FEMA, 138 F.3d 543, 545 (5th Cir. 1998) (finding
plaintiffs' failure to assign a value to claimed losses was
grounds for dismissal); Wagner v. Director, Federal Emergency
Management Agency, 847 F.2d 515, 520-521 (9th Cir. 1988)
(finding plaintiffs who failed to file proofs of loss forms and
plaintiffs who filed untimely proof of loss forms are barred
from commencing any action based on those claims); Maloney v.
FEMA, Civ. A. No. 96-1879, 1996 WL 626325 *4 (E.D.La. Oct. 24,
1996) (finding plaintiffs failure to file timely proof of loss
form barred his claim); Holeman v. Director, FEMA, 699 F. Supp. 98,
99 (N.D.Tex. 1988) (finding plaintiffs failure to provide
signed, sworn statement with proof of loss form barred his
claim); Cohen v. Federal Insurance Administration, 654 F. Supp. 824,
827 (E.D.N.Y. 1986) (finding plaintiffs failure to file
timely proof of loss form barred his claim). In fact, the court
has found no cases that held that failure to provide bills and
receipts for prior losses is grounds for dismissal of a claim.
Finally, defendants also argue that plaintiffs are not
entitled to recover costs, interest and attorney fees.
Defendants argue that prejudgment and post-judgment interest
awards as well as attorneys fees are not permissible for
plaintiffs seeking recovery under the National Flood Insurance
Act. Because plaintiffs have failed to file any response to this
argument, the court will grant this part of defendants' motion
An appropriate order follows.
AND NOW, this 10th day of August, 2001, upon
consideration of defendants' motion to dismiss, or in the
alternative, for summary judgment, plaintiffs' response to
defendant's motion, and defendants' reply to plaintiffs
response, it is hereby ORDERED that defendant's motion to
dismiss (doc. no. 7) is GRANTED IN PART and DENIED IN PART.
Defendants' motion, in the alternative, for summary judgment is
DENIED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.