United States District Court, S.D. Mississippi, Western Division
ORDER DENYING SUMMARY JUDGMENT
DAVID BRAMLETTE, District Judge.
This cause is before the Court on Defendant's, Hartford Insurance Company of the Midwest, Motion for Summary Judgment [docket entry no. 17]. Having reviewed the motion and response, applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds as follows:
I. Factual and Procedural Background
Plaintiff White Hall on MS River, LLC ("White Hall") owns and operates a hunting club on land in Claiborne County, Mississippi. In early May of 2011, the Mississippi River flooded and damaged three buildings-hunting camps-on White Hall's property. Defendant Hartford Insurance Company of the Midwest ("Hartford") insured White Hall's property, including all three hunting camps, as part of the National Flood Insurance Program ("NFIP"). Hartford is a Write-Your-Own program carrier participating in the NFIP. After the flooding, Hartford paid in full on White Hall's primary coverage for the loss of the hunting camps. Hartford, however, denied White Hall's claims for increased cost of compliance ("ICC") coverage.
After the damage, White Hall sought to rebuild. On August 1, 2011, the Claiborne County Department of Administration and Planning ("DAP") inspected the property, and two days later, issued a Floodplain Development Permit. Thereafter, White Hall began reconstruction. On April 19, 2012, White Hall received a Letter of Compliance from DAP. As early as May 9, 2012, White Hall requested a Substantial Damage Letter from Claiborne County. The Letter was originally issued and dated June 11, 2012, but White Hall requested that the County backdate the Letter, which it did. On October 12, 2012, Hartford denied White Hall's ICC claims because "the demolition and elevation of the new structure were completed prior to Claiborne County issuing the substantial damage letter." State Court Record 15, ECF No. 2. White Hall appealed the denial to the Federal Emergency Management Agency ("FEMA"), and on April 13, 2013, FEMA affirmed the denial, discussing the Substantial Damage Letter.
On October 10, 2013, White Hall brought suit in the Circuit Court of Claiborne County, alleging claims for breach of contract, bad faith, and punitive damages. On November 7, 2013, Hartford removed the case to federal court asserting federal question jurisdiction. Discovery in this case has closed, and Hartford has moved for summary judgment on all of White Hall's claims.
A. Summary Judgment Standard
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact is material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law. An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party." Ginsberg 1985 Real Estate P'ship v. Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994) (citations omitted). The moving party bears the initial responsibility of apprising the district court of the basis for its motion and the parts of the record which indicate the absence of a genuine issue of material fact. Celotex Corp. V. Catrett, 477 U.S. 317, 323 (1986).
"Once the moving party presents the district court with a properly supported summary judgment motion, the burden shifts to the non-moving party to show that summary judgment is inappropriate." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But the nonmovant must meet his burden with more than metaphysical doubt, conclusory allegations, unsubstantiated assertions, or a mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A party asserting that a fact is "genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations... admissions, interrogatory answers, or other materials...." Fed.R.Civ.P. 56(c)(1)(A).
Summary judgment must be rendered when the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Hartford gives four reasons why White Hall is not entitled to coverage: (1) it did not receive a substantial damage letter before repairing the damage to the hunting camps, (2) it did not comply with information requests from Hartford, (3) it built the new structures exceeding the minimum requirements, and (4) it never submitted a proof of loss to Hartford or FEMA. All of Hartford's reasons relate to White Hall's failure to comply with procedure related to NFIP ICC claims.
B. Late Substantial Damage Letter
The main point of contention between the parties concerns the Substantial Damage Letter. Hartford contends that the Substantial Damage Letter must be obtained before any construction can begin on a damaged property in order to received increased cost of compliance coverage. Mem. Supp. 12, ECF No. 18. White Hall admits that the Letter "was dated after the demolition and elevation of the new structure" but counters that there is no statutory requirement to obtain a Substantial Damage Letter prior to repairing its damaged property. Mem. Opp. 2, 7, ECF No. 21. In its reply brief, White Hall urges that this requirement comes from ...