United States District Court, S.D. Mississippi, Southern Division
REEF ENTERPRISES, a Mississippi Corporation doing business as Jordan River Steamer PLAINTIFF
WRIGHT NATIONAL FLOOD INSURANCE COMPANY, formerly known as Fidelity National Indemnity Insurance Company, a Texas Corporation DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
 MOTION FOR SUMMARY JUDGMENT
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  for Summary Judgment filed by
Defendant Wright National Flood Insurance Company, formerly
known as Fidelity National Indemnity Insurance Company, a
Texas Corporation. This Motion is fully briefed. Having
considered the Motion, related pleadings, the record, and
relevant legal authority, the Court is of the opinion that
Defendant's Motion  for Summary Judgment should be
granted, and that Plaintiff's claims should be dismissed
Reef Enterprises, Inc., a Mississippi corporation, doing
business as Jordan River Steamer (“Plaintiff” or
“Reef”), held a Standard Flood Insurance Policy
(“SFIP”) from December 8, 2011, to December 8,
2012, issued by Defendant Wright National Flood Insurance
Company, formerly known as Fidelity National Indemnity
Insurance Company, a Texas Corporation
(“Defendant” or “Wright”).
See SFIP [1-2] at 1-22. Wright operated as a
Write-Your-Own (“WYO”) carrier participating in
the National Flood Insurance Program (“NFIP”).
See Policy Declarations [16-1] at 10; Aff. of
Carolann Whitfield [16-1] at 2.
SFIP issued to Plaintiff insured its non-residential property
in Kiln, Mississippi, and included coverage of $500, 000.00
for the building and $210, 000.00 for contents. Policy
Declarations [13-1] at 1. Plaintiff operated a restaurant at
this location (the “Property”). Colonial's
Final Report [16-1] at 94.
August 28, 2012, “heavy rains associated with Hurricane
Isaac caused a temporary and general condition of
flooding” which damaged Plaintiff's building.
Id. at 95. After receiving Plaintiff's flood
claim, Defendant assigned Colonial Claims Corporation
(“Colonial”) to inspect the Property, which in
turn assigned adjuster Ray Orlando (“Orlando”).
Aff. of Carolann Whitfield [16-1] at 3. Orlando contacted
Plaintiff on August 30, 2012, and inspected the Property with
Plaintiff on September 1, 2012. Id.; Colonial's
Final Report [16-1] at 95. Plaintiff hired a public adjuster,
Scott Favre, to advocate on its behalf. See, e.g.,
Plauche Letter [16-1] at 100; Favre Letter [16-1] at 99;
Colonial's Final Report [16-1] at 97.
discovered that the Property had sustained two prior flood
losses. Aff. of Carolann Whitfield [16-1] at 3;
Colonial's Final Report [16-1] at 95. One occurred during
Hurricane Katrina in 2005, and the other on September 1,
2008. Colonial's Final Report [16-1] at 95. “The
insured was paid a total of $348, 687.35” for these two
prior losses. Id.
asked the Plaintiff to produce receipts and/or other evidence
that the prior flood damages were repaired.” Aff. of
Carolann Whitfield [16-1] at 3. Orlando reported to Wright
that Reef's President, Hank Plauche, told him that
completed the work [for the prior losses, ] and we said that
was fine and informed him we would need the invoices for the
repairs. He told us he didn't have any receipts or they
were destroyed in the flood. We told him we might be able to
use the photos from the prior to determine if repairs were
made and then we asked him if he could give us the name of
the contractor he used, to which he told us he couldn't
remember his name. We pressed the name of the contractor then
asked if he did the work himself without a contractor and he
told us yes. We asked if his accountant might have some
documentation from when he filed his taxes and the insured
told us he didn't think so. We finished our inspection
and left. Some time went by and we got nothing from the
insured, then the prior came to us. We reviewed the prior and
noticed right away a lot of similarities in the contents and
Action Request [16-1] at 35.
November 6, 2012, Plaintiff's public adjuster
“compiled a packet of information to turn over to
[Orlando].” Favre Letter [16-1] at 98. This included:
1. Ten pictures post Hurricane Gustav (09/2008) showing the
scope of work that was completed by Jourdan [sic] River
Steamer. Said pictures show an extensive scope of work
including, but not limited to, flooring, electrical,
sheetrock, plumbing, insulation, painting and rebuilding of
bar. The business owner subcontracted the rebuild himself and
a lot of the expenses are documented in the below printouts.
2. Receipts from Big Tray.
3. Breakdown of purchases from Associated Food &
4. Breakdown of purchases from Cisco.
5. Breakdown of purchases from PayPal.
6. Breakdown of purchases from American Express.
7. Breakdown of purchases from QuickBooks from an array of
Building Supply distributors and Equipment distributors. As
you can see, Mr. Plauche has been replacing items from 2008
thru this date in an effort to recover from Hurricane Gustav.
submitted a signed Proof of Loss dated November 29, 2012,
which sought $710, 000.00 under the SFIP. Proof of Loss
[16-1] at 103. On November 30, 2012, Orlando recommended that
Wright reject the proof of loss. Orlando Report [16-1] at
January 8, 2013, Plaintiff's public adjuster forwarded a
letter from Plauche to Wright and Colonial asking for a new
adjuster to be assigned to the flood claim. Favre Letter
[16-1] at 99; Plauche Letter [16-1] at 100. According to
Plauche, “[w]e were asked for all receipts for that
period and I told him that our files were flooded during the
storm.” Plauche Letter [16-1] at 100. According to
Plauche, “[w]e have spent day after day compiling as
much info as we could from venders and quick books and are
able to back them up with canceled checks form [sic] the
bank, but that just seems to fall and [sic] deaf ears.”
January 17, 2013, Wright rejected the Proof of Loss. Wright
Letter [16-1] at 104. Wright referred to items for which
payment had been made for prior flood claims and which had
not been repaired or replaced, citing the SFIP at section
VII, General Conditions. Id. Wright informed
[p]lease have your public adjuster continue to work with the
independent adjuster to bring this claim to an amicable
conclusion. Any documentation that you can provide to verify
that repairs were made and/or replacements were purchased
will be reviewed and judged on its merits.
By stating the above, Fidelity National Indemnity Insurance
Company does not waive any of its rights, but specifically
reserves any and all of its rights under the policy of
insurance and Federal Law.
In accordance with VII. GENERAL CONDITIONS, R. Suit Against
Us, should you wish to challenge Fidelity National Property
and Casualty Insurance Company's position in this matter,
you must file a lawsuit within 12 months of the denial of
claim letter, and your lawsuit must be filed in federal
Id. at 105 (emphasis in original).
on his observations and the documentation submitted by
Plaintiff, Orlando prepared a building damage estimate in the
amount of $137, 925.98 RCV [Replacement Cost Value]; $111,
560.41 ACV [Actual Cash Value] and a contents estimate of
$102, 815.97 RCV; $75, 158.71 ACV.” Aff. of Carolann
Whitfield [16-1] at 4; see also Damage Estimate
[16-1] at 43. On June 30, 2013, Orlando issued a Final Report
to Wright. Final Report [16-1] at 94. Orlando explained that
“[t]here are a few items we recommend for denial due to
lack of documentation showing repaired or replaced. These
items are also included in our estimate but have a $0.00
dollar amount.” Id. at 95.
10, 2013, Plaintiff executed another sworn Proof of Loss.
Proof of Loss [16-1] at 106. In the new Proof of Loss,
Plaintiff claimed a net amount under the policy of $186,
719.12, id., which matched the actual cash value
total calculated by Wright's adjuster Orlando,
see Damage Estimate [16-1] at 43. On July 11, 2013,
Wright submitted a request to FEMA for a waiver for
Plaintiff's late-signed Proof of Loss. E-Mail [22-1] at
1-2. Wright explained to FEMA that
[t]he Proof of Loss is late mainly due to the length of time
it took the insured to provide documentation that damages
from a prior flood had been repaired. The adjuster wrote
extremely detailed reports delineating each building item and
[sic] that had been damaged in the prior flood. He then
compared photographs from both floods in order to determine
what exactly had been repaired and/or replaced within the
time period between the two flood events. The same
methodology was utilized with the contents portion of the
claim. In ...