SURFSAND RESORT, LLC, an Oregon limited liability company v. Nationwide Mutual Fire Insurance Co., an Ohio company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SURFSAND RESORT, LLC, an Oregon
limited liability company,
Plaintiff-Appellant,
v.
NATIONWIDE MUTUAL FIRE
INSURANCE CO., an Ohio company;
HARLEYSVILLE INSURANCE
COMPANY, a Pennsylvania company,
Defendants-Appellees.
No. 18-35607
D.C. No. 3:17-cv-00866-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted October 22, 2019
Portland, Oregon
Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.
Surfsand Resort claims that Nationwide owes $396,234.92 under an
insurance policy governed by the National Flood Insurance Act, but Surfsand
FILED
NOV 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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never filed a signed and sworn Proof of Loss for that amount, a condition
precedent to the recovery of funds under a Standard Flood Insurance Policy. Flick
v. Liberty Mutual Fire Ins. Co., 205 F.3d 386, 394–96 (9th Cir. 2000). Surfsand
contends that this failure should be excused through the doctrine of equitable
estoppel. The District Court did not consider whether Nationwide can be estopped
while acting as an agent of the federal government, but we may affirm the District
Court’s grant of summary judgment on any ground properly supported by the
record. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir.
2001).
Surfsand cannot meet the “stringent test” applicable to such claims. Wagner
v. Director, FEMA, 847 F.2d 515, 519 (9th Cir. 1988); see also Flick, 205 F.3d at
393 n.10 (explaining that a claim against a WYO insurer on a Standard Flood
Insurance Policy is, “in reality, a claim against the federal government”). None of
the statements purportedly attributable to Nationwide constitute “affirmative
misconduct going beyond mere negligence.” Wagner, 847 F.2d at 519 (citing
Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)). The Standard Flood
Insurance Policy imposes a nondelegable duty on Surfsand to submit a Proof of
Loss, which Surfsand cannot now avoid by pointing to Valencia’s equivocal
statements about how and when to submit it. Valencia, in fact, repeatedly
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reminded Surfsand of its nondelegable duty. There remains no triable issue of
material fact.
The parties dispute whether the lowest level of the hotel is a “basement” and
therefore expressly excluded from coverage under the terms of the policy. We
need not resolve that question, since the failure to file a signed and sworn Proof of
Loss form defeats the claim for damages.
The District Court did not err. The record reflects that the only Proof of
Loss form submitted claimed $98,765.08. Nationwide promptly paid that amount,
even though the Proof of Loss was submitted after the required sixty (60) day
deadline. With respect to the $396,234.92, Surfsand failed to “comply strictly with
the terms and conditions that Congress has established for payment.” Flick, 205
F.3d at 395–96.
AFFIRMED.
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