In Schubert v. Chertoff, No. 07-5075, 2009 U.S. Dist. LEXIS 75835 (E.D. La. Aug. 26, 2009), the court considered whether the insured's failure to file a proof of loss for flood damage should be excused because two previous, untimely proofs of loss were accepted.
The insured had a Standard Flood Insurance Policy through Hartford Fire Insurance Company on his New Orleans home. Coverage limits were $250,000. The insured's home suffered flood damage from Hurricane Katrina. An independent adjuster estimated damages to be $91,059.58. Hartford issued a check for this amount to the insured.
Thereafter, the insured sought additional coverage for structural damage to the property. The structural damage was not covered because it was not flood related, but an additional payment of $20,369.30 was recommended by the adjuster for damages overlooked in the first estimate. FEMA waived the policy's 60-day proof of loss provision, but limited the waiver to only the amount of the loss stated. Hartford then approved this additional payment. Subsequently, a third payment was recommended by the adjuster for an additional $40,432.92. FEMA again granted a waiver of the 60-day period, but limited the waiver for only the amount of loss outlined in the request. Thereafter, Hartford paid an additional $40,432.92 to the insured.
The insured then sued Hartford, seeking damages for various additional items including fees paid, depreciation and "other items not yet determined." No proof of loss was submitted for these items, but after suit was filed the insured sent Hartford an estimate for $13,570.90 for repairs to the home. Hartford moved for summary judgment, arguing the insured was not entitled to additional damages sought because she had failed to provide a proof of loss.
The district court granted Hartford's motion. Under the National Flood Insurance Program, a policyholder seeking payment under a flood policy had to submit a proof of loss within 60 days of the loss. Failure to provide the proof of loss statement relieved the federal insurer's obligation to cover the loss. Here, the insured had not proof of filing a third proof of loss for the damages for which she sued. The two requests for waiver of the 60-day period which were granted were limited to the specific amounts recommended for payment by the adjuster . Therefore, the insured failed to submit evidence establishing a genuine issue of material fact concerning whether she filed a proof of loss for damages sought in the suit.
