THIS CAUSE comes before the Court upon Defendant Liberty Mutual Fire Insurance Company’s Motion to Dismiss Complaint filed March 6, 2001. Plaintiffs Robert and Marjorie Bowersock filed a Response on March 20, 2001. Defendant Liberty Mutual Fire Insurance Company filed a Reply on March 29, 2001.
Plaintiffs Robert and Marjorie Bowersock filed this instant action on December 27, 2000 seeking declaratory relief and alleging breach of contract pursuant to 42 U.S.C. § 4053 against Defendant Liberty Mutual Fire Insurance Company (“Liberty”). Plaintiffs obtained a Standard Flood Insurance Policy (from Liberty on or about July 1, 1999, which covered July 1, 1999 to July 1, 2000. Liberty is a “Write-Your-Own” or WYO company under the National Flood Insurance Act, 42 U.S.C. § 4001,et seq., Part B. On or about October 16, 1999, Plaintiffs reported to Liberty damages to their property allegedly sustained from Hurricane Irene on October 15, 1999. (See Compl. ¶ 8.) According to Plaintiffs, Liberty denied their insurance claim on or about December 28, 1999, after conducting an inspection of the property in which an engineer’s concluded that the damage was due to “hydro-consolidation of poorly compacted fill” and not by directed physical loss by or from a flood. (Id. ¶ 10.) Pursuant to the terms of the Standard Flood Insurance Policy, Plaintiffs are required to file a proof of loss within sixty days (60) of the alleged damage. Plaintiffs filed their proof of loss on August 21, 2000. (Id. at 12.)
Plaintiffs concede that the proper statute is 42 U.S.C. § 4072 for bring suit under National Flood Insurance Act not 42. U.S.C. § 4053 as Plaintiffs asserted in their Complaint. (See Pls. Mem. Opp’n Def. Mot. Dismiss 2.)
II. Legal Standard
Dismissal is justified only when “`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'” See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 810(1993) (quoting McLain v. Real Estate Bd. of New Orleans, Inc., 444 US. 232, 246 (1980)). The complaint at issue should be construed in the light most favorable to the plaintiff, and all facts alleged by the plaintiff are accepted as true. See Hishon, 467 U.S. at 73. Regardless of the alleged facts, however, a court may dismiss a complaint on a dispositive issue of law. See Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
Liberty moves to dismiss Plaintiffs’ Complaint on the grounds that (I) it is not the proper party under 42 U.S.C. § 4072 and (2) Plaintiffs failed to comply with the condition precedent in Article 9 of the insurance policy for bringing a lawsuit. First, Liberty argues that pursuant to 42 U.S.C. § 4702 the Director of FEMA is the proper party for a claim of breach of contract for insurance policy issued under the Flood Insurance Program. Defendant relies on a strict interpretation of the 42 U.S.C. § 4072, which states in relevant part:
the Director shall be authorized to adjust and make payment of any claims for proved and approved losses covered by flood insurance, and upon the disallowance by the Director of any such claim, or upon the refusal of the claimant to accept the amount allowed upon any such claim, the claimant, within one year after the date of mailing of notice of disallowance or partial disallowance by the Director, may institute an action against the Director on such claim in the United States district court for the district in which the insured property or the major part thereof shall have been situated, and original exclusive jurisdiction is hereby conferred upon such court to hear and determine such action without regard to the amount in controversy.
Defendant asserts the Director of FEMA is the proper party because FEMA denied Plaintiffs’ claim. (See Def. Reply, Ex. A.) In response. Plaintiffs contend that a private insurer can be sued under 42 U.S.C. § 4702 in federal court. Plaintiffs cite Van Holt v. Liberty Mutual Fire Insurance Company, 163 F.3d 161 (3d Cir. 1998) andNewton v. Capital Assurance Company. Inc., 209 F.3d 1302 (11th Cir. 2000) for the proposition that 42 U.S.C. § 4702 provides subject-matter jurisdiction over claims under a Standard Flood Insurance Policy against a WYO. Both Van Holt and Newton hold that 42 U.S.C. § 4702 provides subject-matter jurisdiction over claims against WYO, private insurers, in federal court. However, neither Van Holt nor Newton, stands for the proposition that a WYO is the proper party to sue when FEMA denies an insured claim as Defendant asserts here. Nevertheless, at this stage in the proceedings, it is not appropriate for this Court to determine whether Plaintiffs’ claim was denied by FEMA as Defendant asserts or by Liberty as Plaintiffs claim. In their Complaint, Plaintiffs allege that Liberty denied their claim whereas Liberty asserts that FEMA denied their claim. Liberty or FEMA role in the denial of Plaintiffs’ claim is a factual issue not to be determined on a motion to dismiss.
Defendant also argues that Plaintiffs’ claims are barred because they failed to timely provide a proof of loss to Liberty as required by the Standard Flood Insurance Policy. Defendant claims that Plaintiffs did not file a proof of loss within sixty days of loss as required by the insurance policy. (See Compl., Attach. Ex., Dwelling Policy at 13.) Plaintiffs contend that failing to file a proof of loss within the time agreed upon by the parties in the insurance policy does not prevent them for bring claims under the insurance policy. Plaintiffs rely on Quesada v. Director, Federal Emergency Management Agency, 577 F. Supp. 695 (S.D.Fla. 1983) judgment affirmed, 753 F.2d 1011 (11th Cir. 1985) to support their argument. However, Quesada is distinguishable from the case at bar. In Quesada, the Court found the fact that FEMA denied the plaintiffs’ claim before the sixty day requirement to tile a proof of loss as reasonable reliance on the part of the plaintiffs that there was no need to file a proof of loss. Here, Plaintiffs’ damage claim was denied on December 28, 1999, which is more than sixty days after they orally notified Liberty of their damages on October 16, 1999. Plaintiffs did not file a proof of loss until August 21, 2000, which is nearly 10 months after they reported the alleged damage to Liberty. (See Compl. ¶ 12.) Plaintiffs have not alleged any facts in their Complaint to support either an estoppel or waiver of Defendant’s assertion of the condition precedent for bringing suit as a defense. See Jenkins v. United States Department of Housing and Urban Development, 780 F.2d 1549 (11th Cir. 1986).
Accordingly, after a careful review of the record, and the Court being otherwise fully advised, it is
ORDERED and ADJUDGED that Defendant Liberty Mutual Fire Insurance Company be, and the same is hereby, GRANTED. It is further
ORDERED and ADJUDGED that the above-styled action be, and the same is hereby, DISMISSED.