Claimants should beware of suing under NFIP policies

Another federal district court in Florida has confirmed that insureds suing under a standard flood insurance policy (SFIP) issued under the National Flood Insurance Program (NFIP) may not be awarded attorneys’ fees under state law or interest on their claim, and that they are not entitled to a jury trial.

Berlin Sanchez and Sahily Soto sued Selective Insurance Company of the Southeast, alleging that Selective had breached the insurance policy it had issued to them by refusing to pay the full amount of insurance proceeds they sought for water damage suffered to their insured property.

The plaintiffs sought damages, plus interest, court costs, and reasonable attorneys’ fees pursuant to Fla. Stat. § 627.428, as well as a jury trial.

Selective filed a partial motion to dismiss. It argued that because it was a write-your-own (“WYO”) insurer participating in the NFIP pursuant to the National Flood Insurance Act of 1968 (“NFIA”) and related regulations propagated by the Federal Emergency Management Agency (“FEMA”), and because it had issued an SFIP to the plaintiffs, the plaintiffs were not entitled to recover attorneys’ fees or a jury trial.

The District Court’s decision

The district court found Selective’s motion more akin to a motion to strike, and then granted the motion.

In its decision, the district court first agreed with Selective that the plaintiffs’ demand for statutory attorneys’ fees pursuant to Fla. Stat. § 627.428 was improper because the terms of the SFIP issued to the plaintiffs were set by Congress and codified by regulation so as to preempt any entitlement to attorneys’ fees under state law.

Therefore, the district court ruled, to the extent that the plaintiffs’ complaint sought attorneys’ fees under Fla. Stat. § 627.428, that request had to be stricken from their complaint. (For the same reason, the district court, sua sponte, also struck the plaintiffs’ request for interest.)

The district court then agreed with Selective that the plaintiffs were not entitled to a jury trial. It reasoned that a suit for benefits under the NFIP raised the same concerns as a suit against a governmental entity because benefits under the NFIP were paid by the federal treasury.

Accordingly, a suit under the NFIP, despite the issuance of the SFIP by a private WYO carrier, amounted to a claim against the United States Treasury, the district court said.

Absent the federal government’s affirmative and unambiguous consent, it added, the Seventh Amendment right to trial by jury did not apply in actions against the federal government. The district court pointed out that the NFIA did not grant plaintiffs a right to a jury trial and, accordingly, it struck the plaintiffs’ request for a jury trial.

The case is Sanchez v. Selective Ins. Co., No. 18-21472-Civ-Scola (S.D. Fla. Jan. 2, 2019).

Steven A. Meyerowitz, Esq., (smeyerowitz@meyerowitzcommunications.com) is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. This story is reprinted with permission from FC&S Legal, the industry’s only comprehensive digital resource designed for insurance coverage law professionals.

Related: FEMA renews reinsurance program to manage future flood risk