A federal judge in Miami ruled a Florida Keys plaintiff was not entitled to recover fees under the Equal Access to Judgment Act in a suit against a flood insurer, rejecting a contrary decision by another federal court in the state.

After property in Islamorada owned by the estate of Raymond K. Hampson was damaged by Hurricane Irma, the estate’s personal representative, Timothy R. Hampson, sued Wright National Flood Insurance Co., which issued a standard flood insurance policy covering the property.

Hampson sought entry of a judgment against Wright for breach of contract. He also sought attorney fees, costs and case expenses incurred in filing and prosecuting the action, which he claimed were payable under the Equal Access to Judgment Act.

Wright moved to dismiss the claims for fees, costs and expenses under the law, arguing the expenses were not recoverable in a claim under a standard flood policy against Wright, a write-your-own insurance carrier.

The district court granted the motion.

In its decision, the court explained that a party may recover attorney fees and costs under the EAJA as the prevailing party in a case “brought by or against the United States … unless the court finds that the position of the United States was substantially justified.”

The court said the statute defined United States to include “any agency and any official of the United States acting in his or her official capacity.”

The court then ruled that attorney fees were not recoverable under the EAJA in cases of breach of a flood policy brought against a WYO program insurance carrier participating in the National Flood Insurance Program because WYO carriers were “not considered ‘agencies’ under the EAJA.”

The court rejected Hampson’s reliance on Arevalo v. American Bankers Insurance , decided in the Middle District of Florida in June, to support his arguments that attorney fees and costs were warranted. In Arevalo, the court found it was “not so much whether American Bankers is an ‘agency’ of the United States under the Act. Rather, it seems to matter more whether the government is the source of the funds or who would pay an award of attorney’s fees” and concluded it was “at least plausible at this point in the litigation that attorney’s fees may be paid from federal funds.”

U.S. District Judge K. Michael Moore in Hampson’s case said that it disagreed with the Arevalo decision and declined “to depart from the case law” finding that a WYO carrier was not an agency of the United States as required by the EAJA.

Accordingly, the court dismissed Hampson’s claims for attorney fees, costs and expenses pursuant to the EAJA.

The case is Hampson v. Wright National Flood Ins. Co., No. 4:19-cv-10083-KMM (S.D. Fla. Aug. 12, 2019).

Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. Meyerowitz is the Director of the Insurance Coverage Law Center and editor-in-chief of journals on insurance law, banking law, bankruptcy law, energy law, government contracting law, and privacy and cybersecurity law, among other subjects. Contact him at smeyerowitz@meyerowitzcommunications.com.