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The U.S. Court of Appeals for the Third Circuit, affirming a decision by the U.S. District Court for the District of New Jersey, has rejected an appeal by an insured under a standard flood insurance policy (“SFIP”) where the insured failed to timely submit a “signed and sworn” proof of loss that included, among other things, the amount of money that he claimed under the policy, together with detailed information about the property and damages.

The Case

Humphrey O. Uddoh asserted that, on October 29, 2012, flooding caused by Superstorm Sandy damaged property he owned in Jersey City, New Jersey, that was insured by a SFIP that had been issued by Selective Insurance Company of America, a write-your-own (“WYO”) company participating in the National Flood Insurance Program (“NFIP”).

On December 23, 2012, Mr. Uddoh submitted to Selective a proof of loss form that contained conflicting information concerning the loss that he allegedly suffered.

Where the document provided a blank space for “Actual Cash Value Loss,” the amount of $1957.99 was listed. That same amount was listed as a deductible. Therefore, the line for “Net Amount Claimed” stated $0.00.

Mr. Uddoh, however, also included handwritten notations on the form, stating that it was “signed under protest” and “demand[ing]” payment based on an insurance adjuster's submission of both a report seeking $21,000 and an “advance payment request[]” for $30,000.”

Attached to the proof of loss form was a contractor's repair estimate of $26,000, which included items in Mr. Uddoh's basement and third floor ceiling.

Selective denied Mr. Uddoh's claim on December 24, 2012, noting that the “minimal damage to the building” totaled $334.06, which was less than the policy's $5,000 deductible.

In addition, Selective explained that damages to the lower level of the home were excludable under the policy's basement limitation.

In October 2013, Mr. Uddoh filed a complaint in the U.S. District Court for the District of New Jersey alleging that Selective had breached the insurance contract and had engaged in a fraudulent scheme to deny him benefits.

Selective moved to dismiss, arguing that Mr. Uddoh's state law claims were preempted by federal law. The district court granted the motion, noting that Mr. Uddoh could proceed only on his claim for flood insurance coverage.

Selective next moved for summary judgment, which the district court granted. It held that Mr. Uddoh was barred from recovery because he had not submitted an adequate proof of loss as required by the SFIP.

Mr. Uddoh appealed to the Third Circuit.

The Third Circuit's Decision

The circuit court affirmed.

In its decision, the Third Circuit explained that the SFIP provided that within 60 days after the loss (or within any extension authorized by the Federal Emergency Management Agency (“FEMA”)), Mr. Uddoh had to file a signed and sworn proof of loss that included, among other things, “an inventory of damaged property showing the quantity, description, actual cash value, and amount of loss.”

In this case, the Third Circuit found that, by failing to clearly indicate the amount that he was seeking to recover, Mr. Uddoh's proof of loss did not comply with the SFIP's requirements.

The circuit court was not persuaded by Mr. Uddoh's contention that FEMA had waived the proof of loss requirement after Superstorm Sandy on November 9, 2012 in FEMA Bulletin W-12092a. The circuit court pointed out that the bulletin attempted to speed up the process for obtaining an initial claim payment by granting a conditional and partial waiver of the proof of loss requirement to “permit the insurer to adjust and pay a loss based on the evaluation of damage in the adjuster's report instead of the signed Proof of Loss or insured-signed adjuster's report.”

Moreover, the Third Circuit added, the bulletin specifically stated that it did “not constitute a blanket waiver of the Proof of Loss requirements of the SFIP.” The circuit court also noted that the bulletin explained that “[i]f the insured disagrees with the amount of the payment [based on the adjuster's report], the insured must send to the insurer a signed and sworn proof of loss meeting the requirements of Section VII(J) of the Dwelling and General Property SFIP Forms. . . .”

Thus, the Third Circuit found, contrary to Mr. Uddoh's contention, the bulletin did not eliminate the proof of loss requirement but “simply allowed an insurance company's initial payment to be based on the adjuster's report, rather than a proof of loss.”

The case is Uddoh v. Selective Ins. Co. of America, No. 18-2274 (3d Cir. May 13, 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. Mr. 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. He may be contacted at [email protected].