McQuaig v. Imperial Fire & Casualty Insurance Corporation et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACQUE MCQUAIG CIVIL ACTION
VERSUS NO. 22-3383
IMPERIAL FIRE & CASUALTY
INSURANCE COMPANY
SECTION “O”
ORDER AND REASONS
Before the Court in this Hurricane Ida flood insurance dispute is an unopposed
motion1 for summary judgment filed by Defendant Imperial Fire & Casualty
Insurance Company. The motion was noticed for submission on February 4, 2026,
making Plaintiff’s response due January 27, 2026. See LO CAL CI VIL RUL E 7.5. No
response was filed so the Court considers the motion unopposed.
The unopposed motion has merit. As a threshold matter, Defendant’s
statement2 of undisputed material facts is uncontroverted and thus all such material
facts are “deemed admitted” under Local Rule 56.2. Defendant submits—and the
summary judgment record establishes—that Plaintiff failed to submit to Defendant,
on or before the FEMA-prescribed deadline, a “Proof of Loss” with competent
supporting documentation for the instant flood claim, as specifically required by
Articles VII(J)(3), VII(J)(4), and VII(J)(5) of Plaintiff’s Standard Flood Insurance
Policy in order to recover additional federal dollars requested in the instant lawsuit.
For this and the following reasons, Defendant has demonstrated entitlement to
1 ECF No. 75.
2 ECF No. 34-2 (34-4 through 12 inclusive of exhibits).
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judgment as a matter of law so its motion for summary judgment is granted, and
Plaintiff’s lawsuit is dismissed with prejudice.
I. BACKGROUND
This is a Hurricane Ida flood insurance dispute.
Hurricane Ida caused damage by flooding Plaintiff’s property at 425 Martin
Lane in Port Sulfur, Louisiana: a property which was not Plaintiff’s primary
residence but, instead, was used as a “seasonal dwelling.”3 Defendant Imperial Fire
& Casualty Insurance Corporation (“Imperial”) was a Write-Your-Own Program
carrier participating in the U.S. Government’s National Flood Insurance Program
(“NFIP”) pursuant to the National Flood Insurance Act of 1968, as amended (42
U.S.C. §4001, et seq.).4 National Flood Insurance Program (“NFIP”) Standard Flood
Insurance Policy (“SFIP”) Dwelling Form No. 0000768376, issued by Imperial for
Plaintiff’s property, was in full force and effect at the time of the flood loss on or about
August 29, 2021.5
On or about September 7, 2021, Plaintiff notified Imperial of a flood loss claim
following Hurricane Ida, which occurred on or about August 29, 2021.6 One week
later, FEMA issued Bulletin W-21020 wherein the Proof of Loss filing deadline set
forth in SFIP Art. VII(J)(4) was extended for flood claims stemming from Hurricane
Ida to 180 days from the date of loss.7 This extended Plaintiff’s deadline until
3 ECF No. 34-2 ¶¶2-4.
4 Id. ¶1.
5 Id. ¶2.
6 Id. ¶4.
7 Id. ¶5.
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February 25, 2022 to submit a Proof of Loss and supporting documentation to
establish his SFIP-compliant flood claim for payment of federal flood benefits as a
result of Hurricane Ida.8
Imperial acknowledged the flood claim and assigned the loss to an independent
adjuster pursuant to Article VII(J)(7) of the SFIP.9 The independent adjuster
inspected the property and determined that flood water had risen to a level of 96
inches beneath the elevated structure, several inches below the underside of the
elevated floor of the structure, and that no flood water had entered the elevated first
floor of the dwelling.10 As such, the independent adjuster recommended payment for
cleanup, mildewcide and other items, for a total payment of $2,608.60 after
application of non-recoverable depreciation and the deductible.11
In compliance with 44 C.F.R. §62.23, Imperial reviewed the adjustment and
recommendations of the independent adjuster, verified the claim and determined that
the SFIP-covered and payable amount of the damage due to direct physical damage
by or from flood was $2,608.60.12 On October 27, 2021, Imperial issued payment to
Plaintiff in the amount of $2,608.60 for the SFIP-covered and payable flood damages
to the structure for the August 29, 2021 flood loss.13
On February 28, 2022, Plaintiffs submitted to Imperial an engineering report
by RJLPC Engineering Consultants indicating damage to the roofing system and the
8 Id.
9 Id. ¶6.
10 Id.
11 Id. ¶7.
12 Id. ¶8.
13 Id. ¶9.
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support structure caused by storm surge and racking.14 In response, Imperial hired
SDII engineers to inspect the property and review the Plaintiff’s engineering report.
SDII Global determined the flood water did not enter, flood did not cause structural
damages to the piles or framing system, and instead out-of-plumbing walls and
uneven floors were caused by long term differential movement of the soil.15 Based
upon SDII’s report, Imperial denied Plaintiff’s claim for supplemental payment on
April 26, 2022.16
Plaintiff never submitted a proof of loss or SFIP-compliant documentation to
support any request for additional payment for the August 29, 2021 flood loss.17
Plaintiff never submitted SFIP-compliant documentation indicating incurred costs of
repair or replacement of flood-damaged items to satisfy the Loss Settlement clause to
support a request for additional payment.18 Plaintiff failed to timely submit a proof
of loss and/or supporting documentation to support any claim for a supplemental
payment of flood benefits in violation of SFIP Articles VII(J)(3)(4).19
Pursuant to SFIP Article VII(D), the SFIP provisions cannot be changed nor
can any of its provisions be waived without the express written consent of the Federal
Insurance Administrator; no further written waivers have been issued by FEMA for
the Plaintiffs’ flood loss beyond the waiver in WYO Bulletin W-21020.20
14 Id. ¶10.
15 Id. ¶11.
16 Id. ¶12.
17 Id. ¶13.
18 Id. ¶14.
19 Id. ¶15.
20 Id. ¶16.
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Plaintiff disagreed with Imperial’s decision to deny supplemental payment and
filed suit in the 25th Judicial District Court for the Parish of Plaquemines on August
26, 2022. Plaintiff also purported to advance state-law based extra-contractual claims
for or otherwise seek to recover attorney’s fees, general and special damages,
penalties, litigation expenses, pre-judgment and post-judgment interest and all other
relief.21 Imperial timely removed the lawsuit to this Court, invoking the Court’s
federal question jurisdiction.22 Contending that Plaintiff failed to comply with federal
law and Articles VII(J)(3), VII(J)(4), VII(J)(5), and VII(R) of the SFIP, Imperial now
moves for summary judgment dismissing Plaintiff’s lawsuit with prejudice.
II. LAW AND ANALYSIS
A. Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute of material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CI V . P. 56(a). “A dispute is genuine if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Perry v. VHS San
Antonio Partners, L.L.C., 990 F.3d 918, 926 (5th Cir. 2021) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact is material if it ‘might affect the
outcome of the suit.’” Id. (quoting Anderson, 477 U.S. at 248). “[W]here the
nonmovant bears the burden of proof at trial,” as Plaintiff does here, “the movant
may merely point to an absence of evidence, thus shifting to the non-movant the
burden of demonstrating by competent summary judgment proof that there is an
21 ECF No. 1-2.
22 ECF No. 1.
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issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994) (citations omitted).
B. Standard Flood Insurance Policies
The Federal Emergency Management Agency (“FEMA”) operates the National
Flood Insurance Program (“NFIP”) and issues policies directly or through private
Write Your Own (“WYO”) insurers, which act as fiscal agents of the United States.
Clark v. Wright Nat’l Flood Ins. Co., 821 F. App’x 342, 344 (5th Cir. 2020)
(unpublished, per curiam). Policies issued by WYO insurers are in the form of a
Standard Flood Insurance Policy (“SFIP”), which is a regulation issued by FEMA. See
Marseilles Homeowners Condo. Ass’n. v. Fid. Nat. Ins. Co., 542 F.3d 1053, 1054 (5th
Cir. 2008). “Although WYO insurers administer SFIP policies, payments made
pursuant to such policies are ‘a direct charge on the public treasury.’” Ferraro v.
Liberty Mut. Fire Ins. Co., 796 F.3d 529, 534 (5th Cir. 2015) (quoting Gowland v.
Aetna, 143 F.3d 951, 955 (5th Cir. 1998)).
SFIP provisions “must be strictly construed and enforced.” Gowland v. Aetna,
143 F.3d 951, 954 (5th Cir. 1998). Strict compliance is required because “SFIP claims
are paid from the federal treasury.” Id. at 953, 955 (“Requiring [litigants] to turn
square corners when dealing with the Treasury . . . expresses the duty of all courts to
observe the conditions defined by Congress for charging the public treasury.”
(internal quotations, citation omitted)). Absent “the express written consent of the
Federal Insurance Administrator[,] no provision of the [SFIP] can be altered, varied,
or waived[.]” Id. at 953.
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“[A]n insured cannot file a lawsuit seeking further federal benefits under the
policy unless the insured can show prior compliance with all policy requirements.”
Marseilles Homeowners Condo. Ass’n Inc., 542 F.3d at 1055; see also 44 C.F.R. pt. 61,
app. A(3), art. VIII(R) (2020) (“You may not sue us to recover money under this policy
unless you have complied with all the requirements of the policy.”). Examples of SFIP
requirements that are conditions precedent to filing suit include: [1] the insured
timely must submit a signed and sworn proof of loss supported by the proper
documentation (SFIP Art. VII(J)(4)); [2] the insured timely must submit a properly
supported proof of loss to prove up and justify any additional amount of flood benefits
sought (SFIP Art. VII(J)(4)(f) and (5)); and [3] the insured may not sue to recover
money under the SFIP unless suit is timely filed in the United States District Court
of the district where the covered property is located (SFIP Art. VII(R)).
C. Plaintiff’s Failure to Strictly Comply with the SFIP Dooms His
Claim and Entitles Defendant to Summary Judgment.
Here, it is undisputed that Plaintiff failed to comply with the SFIP’s mandatory
requirements. Plaintiff’s “failure to strictly comply with the SFIP’s provisions—
including the proof-of-loss requirement—relieves the federal insurer’s obligation to
pay the non-compliant claim.” See Ferraro, 796 F.3d at 534 (holding that insureds
had to submit additional proof of loss to recover additional amount on preexisting
claim under SFIP). Defendant is entitled to summary judgment dismissing Plaintiff’s
breach of contract claim, which fails as a matter of law, given Plaintiff’s undisputed
non-compliance with the strictly-construed SFIP requirements. Imperial’s statement
of uncontested facts is deemed admitted. See Local Rule 56.2. Uncontroverted, these
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facts entitle Defendant to judgment as a matter of law because the record shows that
Plaintiff failed to: timely file suit in the proper U.S. District Court as required by
SFIP Article VII(R); timely submit a proper signed and sworn Proof of Loss in support
of his claim for the additional federal benefits he seeks in this lawsuit as required by
Article VII(J)(4) and (5) of the SFIP; and timely submit the requisite documentation
of the flood related damage to support his claim for the additional federal funds he
seeks in this lawsuit as required by Article VII(J)(3) and VII(J)(4)(f) of the SFIP. Each
independent instance of non-compliance is a separate and distinct basis for summary
judgment. See, e.g., Morrow v. Imperial Fire & Cas. Ins. Co., No. 25-1243, 2026 WL
81692, at *5 (E.D. La. Jan. 12, 2026) (Ashe, J.); Woodland Villas Condo. v. Wright
Nat’l Ins. Co., No. 23-1586, 2024 WL 4452326, at *5 (E.D. La. Oct. 9, 2024) (Africk,
J.), aff’d, No. 24-30722, 2025 WL 1260440 (5th Cir. May 1, 2025) (unpublished, per
curiam). Absent compliance with all SFIP requirements, Plaintiff is barred from filing
the instant lawsuit to recover money under the policy. Plaintiff’s claims must be
dismissed.
Furthermore, insofar as Plaintiff purports to allege state-law based extra-
contractual claims for general and special damages, penalties, attorney’s fees,
litigation expenses, pre-judgment and post-judgment interest, claims seeking such
relief are not authorized by the NFIP or SFIP, are preempted by federal law, and
must be dismissed. See, e.g., Wright v. Allstate Ins. Co. (Wright I), 415 F.3d 384, 390
(5th Cir. 2005) (holding that state law tort claims arising from a WYO’s claims
handling are preempted); Wright v. Allstate Ins. Co. (Wright II), 500 F.3d 390, 398
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(5th Cir. 2007) (affirming district court’s order denying insured’s request to grant
insured leave to amend his complaint to include extra-contractual claims against
WYO insurer).
III. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s unopposed motion23 for summary
judgment is GRANTED. Plaintiff’s claims against Defendant are DISMISSED
WITH PREJUDICE.
New Orleans, Louisiana, this 31st day of March, 2026.
BRANDON S. LONG
UNITED STATES DISTRICT JUDGE
23 ECF No. 34.
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