MEMORANDUM OF DECISION & ORDER
On October 2, 2013, the Plaintiffs Stephen C. Fletcher and Karen C. Fletcher (collectively, the “Plaintiffs”) commenced this action pursuant to 42 U.S.C. § 4072 seeking to recover flood-related damages
Presently before the Court are (i) the Defendant’s motion pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56 to dismiss the Plaintiffs’ claim; and (ii) the Plaintiffs’ cross-motion pursuant to Fed.R.Civ.P. 56 for summary judgment on their claim. For the foregoing reasons, the Court grants the Defendant’s motion and dismisses the Plaintiffs’ claim.
I. BACKGROUND
Unless stated otherwise, the following facts are drawn from the parties’ Rule 56.1 statements. Triable issues of fact are noted.
The Plaintiffs are citizens of New York who owned a one-family residence located in Massapequa, New York. The parties do not make clear when the Plaintiffs purchased their home. The mortgagee of the Plaintiffs’ property was CitiMortgage, Inc. ISOA ATIMA (“CityMortgage”). The parties do not make clear the meaning of “ISOA ATIMA” in their papers.
The Defendant is an insurance company authorized to do business in the State of New York. (Answer at ¶ 1.) As relevant to the instant dispute, Congress created the National Flood Insurance Program (“NFIP”) by passing the National Flood Insurance Act of 1968, 42 U.S.C. § 4001 et seq. (Id. at ¶ 4.) The purpose of the statutes was to provide adequate flood insurance in at-risk areas by offering subsidized flood insurance. Id. at § 4001(b). On April 1, 1979, the Federal Emergency Management Agency (“FEMA”) became the agency responsible for operating the NFIP. See 42 U.S.C. § 4071.
In 1983, FEMA created the Write Your Own (“WYO”) Program, which gave insurance companies the ability to issue, under their own names as insurers, Standard Flood Insurance Policies (“SFIPs”) to individuals as “fiscal agent[s] of the Federal Government.” (See Answer at ¶ 1.) In other words, the insurance companies serve as administrators for the federal program, and it is the U.S. government, not the companies, that pays the claims. McGair v. Am. Bankers Ins. Co. of Florida,
WYO companies, such as the Defendant, must issue SFIPs whose terms are set by regulation and cannot be “altered, varied, or waived other than by the express written consent” of FEMA. 44 C.F.R. § 61.13.
The Defendant provided the Plaintiffs with a SFIP consistent with the FEMA regulations. 44 C.F.R. Pt. 61, App. A(l), (2); Fletcher Aff., Ex. A. In that regard, a section of the SFIP entitled, “Policy Renewal,” states: (1) “This policy will expire at 12:01 a.m. on the last day of the policy term”; and (2) “We must receive the payment of the appropriate renewal premium within 30 days of the expiration date.” 44 C.F.R. Pt. 61, App. A(l), (2); Fletcher Aff., Ex. A, at 16. The policy further states:
3. If we find, however, that we did not place your renewal notice into the U.S. Postal Service, or if we did mail it, we made a mistake, e.g., we used an incorrect, incomplete, or illegible address, which delayed its delivery to you before the due date for the renewal premium, then we will follow these procedures: a. If you or your agent notified us, not later than one year after the date on which the payment of the renewal premium was due, of non-receipt of a renewal notice before the due date for the renewal premium, and we determine that the circumstances in the preceding paragraph apply, we will mail a second bill providing a revised due date, whichwill be 30 days after the date on which the bill is mailed.
Id.
The Plaintiffs’ SFIP became effective on September 2, 2002. (Holmes Decl., Ex. A.) Prior to September 19, 2010, CitiMortgage submitted premium payments to the Defendant on the Plaintiffs’ behalf.
On July 19, 2010, the Defendant prepared a notice to the Plaintiffs. (Holmes Decl., Ex. A.) The top of the Notice states, “Policy Expiration Date: 9/02/2010” and “Billing Date: 07/19/2010.” (Id.) (emphasis in original). The Notice then states, “RENEWAL NOTICE: Your flood insurance is about to expire on the date shown above. Please follow renewal instructions on the remittance coupon below.” (Id.) (emphasis in original). The Notice further states that to renew the “CURRENT COVERAGE,” the Plaintiffs are required to remit a payment of $2,686, and to obtain “INCREASED COVERAGE,” they are required to remit a payment of $2,711. (Id.)
On September 1, 2010, the Defendant prepared another Notice with the same information. However, this notice stated, “FINAL NOTICE: Your flood insurance policy expired on the date shown above. Please disregard this notice if your payment has already been mailed.” (Id.)
On September 17, 2010, the Defendant prepared a notice to CityMortgage. (Holmes'Decl., Ex. A.) The notice stated, “The attached premium invoice represents a flood insurance policy that has cancelled for non-payment and which. shows your institution as having interest in the listed property.” (Id.) The notice further states that pursuant to Section 525 of the National Flood Insurance Reform Act:
[I]f ... the lender or servicer determines that the security property and any personal property securing the loan lack adequate flood insurance coverage, the lender or servicer must notify the borrower of the borrower’s responsibility to obtain coverage at the borrower’s expense. If the borrower fails to purchase flood insurance within 45 days after notification, the lender must purchase the insurance on the borrower’s behalf. We notified both you and the borrower, on your behalf, 45 days prior to their policy’s expiration and subsequently, have not received any payment.
(Id.) Finally, the notice states, “Renewal of the above flood policy is both permitted and required under National Insurance Reform Act of 1994. Please remit payment as soon as possible to effect coverage at the earliest possible date.” (Id.)
The Defendant assert that these notices were “automatically generated” and sent out, respectively, on July 19, 2010; September 1, 2010; and September 17, 2010. (Holmes Decl. at ¶ 7.) In support of this assertion, the Defendant relies on a declaration by Scott Holmes, a “Director of Technical Services” and a “custodian of records” for the Defendant. (Id. at ¶ 2.)
The Plaintiffs did not submit a payment to the Defendant prior to September 2, 2010, or at any time thereafter. However, the Plaintiffs deny “knowledge or information sufficient to form a belief as to whether premium payments were made by [the] mortgagee.” (The Pis.’ Counterstatement of Facts at ¶ 3.)
On October 29, 2012, the Plaintiffs’ residence was damaged as a result of Super-Storm Sandy. On October 2, 2013, the Plaintiffs instituted the present action seeking $86,100 in damages under the SFIP issued by the Defendant.
II. DISCUSSION
A. Legal Standards
Fed.R.Civ.P. 56(a). provides that a court may grant summary judgment when the “movant shows there is no genuine issue
“If the movant successfully demonstrates that there is no genuine issue of material fact, then the burden shifts to the non-movant who must come forward with specific facts showing that a genuine issue exists.” D’Iorio v. Winebow, Inc., No. 12-CV-1205 (ADS),
“A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Reeves v. Anderson, No. 11-CV-3770 SAS,
However, a party “opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory” or “based on speculation.” Id. (citations omitted). In that regard, “[wjhere it is clear that no rational finder of fact ‘could find in favor of the nonmoving party because the evidence to support its case is so slight,’ summary judgment should be granted.” F.D.I.C. v. Great Am. Ins. Co.,
B. As to Whether Plaintiff’s Policy Expired
42 U.S.C. § 4072 provides that within one year of the date of mailing the notice of denial or partial denial of an insured’s claim under the NFIP, the insured can “institute an action against the administrator 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.”
As stated above, under the WYO Program, private insurers, such as the Defendant, can issue policies directly to individuals. 42 U.S.C. § 4081(a). By regulation, WYO companies can be sued under 42 U.S.C. § 4072 for failure to pay a claim. See Palmieri v. Allstate Ins. Co.,
Under the FEMA regulations, WYO companies, such as the Defendant, act as “fiscal agents” and not “general agents of
In interpreting the SFIP, the Court must “strictly construe! ] and enforce!]” its terms. Jacobson v. Metro. Prop. & Cas. Ins. Co.,
The Second Circuit reasoned that such a requirement is necessary in the SFIP context because an insured’s claims, if granted, will be paid by the Department of Treasury, not a private insurance company, and thus, warrant particular deference. Jacobson., 672 F.3d at 175; see also Destefanis v. Fugate, No. CV 12-4730(LDW),
This is so even if a strict interpretation of those requirements will create an inequitable result or hardship on the plaintiff. See id. (“The principles unique to governmental insurance policies that require a strict construction of their terms and requirements can sometimes create ostensibly inequitable results.”); see also Gowland v. Aetna,
Here, Section H of the SFIP states: (1) “This policy will expire at 12:01 a.m. on the last day of the policy term”; and (2) ‘We must receive the payment of the appropriate renewal premium within 30 days of the expiration date.” 44 C.F.R. Pt. 61, App. A(l), (2); Fletcher Aff., Ex. A, at 16. Thus, under the plain language of the policy, in order to renew coverage, the Plaintiffs were required to make a renewal premium payment within “30 days of the expiration date,” September 2, 2010.
According to notices prepared by the Defendant on July 19, 2010, September 1, 2010, and September 17, 2010, the Plaintiffs’ policy became effective on September 2, 2002 and expired on September 2, 2010. (Holmes Deck, Ex. A.)
By contrast, the Defendant offers persuasive evidence that the Defendant did not receive a renewal premium payment from either the Plaintiff or CitiMortgage. In particular, in a September 17, 2010 letter to CitiMortgage, the Defendant wrote: “The attached premium invoice represents a flood insurance policy that has cancelled for nonpayment and which shows your institution as having interest in the listed property.... We notified both you and the borrower, on your behalf, b5 days prior to their policy’s expiration and subsequently, have not received any payment.” (Meyer Decl., Ex. A.) (emphasis added). Furthermore, in a declaration, Holmes, the custodian of records for the Defendant, stated “based on personal knowledge from my review of the documents maintained in the claims file of this matter” “[the] Plaintiffs did not make a premium payment on or before September 2, 2010.” (Holmes Decl. at ¶¶ 3,6.)
Based on this evidence, and the Plaintiffs’ failure to produce any evidence to the contrary, the Court finds that there is no material issue of fact that the. Defendant did not receive a renewal premium payment prior to or after the Plaintiffs’ policy expired on September 2, 2010. Therefore, the Court concludes that under the clear language of the SFIP, the Plaintiffs’ coverage expired before their residence was damaged by SuperStorm Sandy on October 29, 2012. Cf. Jacobson,
The Court does not find the Plaintiffs’ remaining arguments to be persuasive. First, the Plaintiffs argue that the Defendant did not comply with the procedural provisions in the May 2005 Flood Insurance Manual in cancelling the SFIP. (The PL’s Mem. of Law at 4-5; Dachs Aff., Ex. B.) Even assuming that the 2005 Flood Insurance Manual is binding on the parties, which appears unlikely, the provisions relied on by the Plaintiffs apply solely to instances where the insured voluntarily terminates or cancels the policy: “The insured must sign and date the Cancellation/Nullification Request Form.” (Dachs Aff., Ex. B, at 7) (emphasis added). Here, the Plaintiffs never sought to nullify or cancel their policy. Thus, these provisions have no relevance to this case.
The Plaintiffs next argue that the Defendant was required to mail the Plaintiffs notice of nonrenewal of the policy within forty-five days of the end of the policy. In support, the Plaintiffs rely on New York Insurance Law § 3425(d)(1), which provides that an insurance company must provide the insured with “written notice of its intention not to renew a eov-
In this regard, the Court finds 84 Albany Ave. Realty Corp. v. Standard Fire Ins. Co.,
In particular, the court relied on Paragraph 3 of the SFIP, which states, “[I]f you or your agent notified us, not later than one year after the date on which the payment of the renewal premium was due of nonreceipt of a renewal notice before the due date for the renewal premium, and we determine that the circumstances in the preceding paragraph apply, we will mail a second bill providing a revised due date, which will be 30 days after the date on which the bill is mailed.” Id. at 244-45 (quoting 44 C.F.R. Pt. 61, App. A(l)). The court noted that the “very language of this provision requires the insured to notify the insurance company that it has not received a renewal notice.” Id. at 245. Since the plaintiff did not allege that it notified the defendant that it did not receive the renewal notice, the Court rejected the plaintiffs argument and dismissed its claim. Id.
The Court finds the reasoning of 84 Albany Ave. Realty Corp. to be directly applicable to the instant case. The Plaintiffs have not pointed to any regulation by FEMA, the National Flood Insurance Act of 1968, or the “federal common law” that requires the Defendant to mail a renewal notice within forty-five days of the expiration of the policy period. As noted in 84 Albany Ave. Realty Corp., the very language of the SFIP appears to place the obligation solely on the Plaintiffs to notify the Defendant of a failure to receive notice of renewal.
Moreover, the SFIP provides, “This policy and all disputes arising from the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001, et seq.), and Federal common law.” 44 C.F.R. Pt. 61, App. A(1). Thus, N.Y. Insurance Law § 3425 relied on by the Plaintiffs has no relevance here. See, e.g., Gunter v. Farmers Ins. Co.,
Finally, even if the Defendant was required to mail the Plaintiffs a renewal notice within 45 days, the Defendant has offered sufficient evidence to indicate that it did so. On July 19, 2010, which is forty-five days prior to September 2, 2010, the Defendants prepared a notice addressed to the Plaintiffs that informed them that their “flood insurance is about to expire on [September 2, 2010]” and provided them instructions for how to renew the policy. (Holmes Decl. Ex. A.) Moreover, in his declaration, Holmes states that this notice was “automatically generated and sent out on July 19, 2010” “in accordance with [the Defendant’s] standard practice and its obligations under the SFIP.” (Holmes Decl. at ¶ 7.)
In response, the Plaintiffs offer no evidence in contravention of Holmes’s assertion, but rather claim that the Defendant cannot rely on Holmes’s declaration because Holmes does not have personal knowledge with respect to whether the notice was mailed to the Plaintiffs. (The Pis.’ Mem. of Law at 11-16.) Again, the Court disagrees.
Fed.R.Civ.P. 56(c) requires a party moving for summary judgment to submit supporting affidavits or declarations based on “personal knowledge.” Affiants generally have personal knowledge about their own experiences. Larouche v. Webster,
Holmes is a “custodian of records” for the Defendant and a “Director” of “Technical Services.” (Holmes Decl. at ¶ 2.). Prior to making his declaration, Holmes stated that he “review[ed]” “the documents maintained in the claims files of this matter.” (Id. at ¶ 3.) Based on his position and his official review of the Plaintiffs file, the Court concludes that Holmes satisfies the standard for personal knowledge required under Rule 56(c).
The case cited by the Plaintiffs are not to the contrary because in those cases, the parties either failed to submit affidavits attesting to the mailing of the letter or submitted affidavits that did not offer proof of the company’s regular mailing procedures. See, e.g., Frankel v. Citicorp Ins. Servs., Inc.,
For the reasons discussed above, the Court finds that the Plaintiffs’ policy expired on September 2, 2010. Therefore, the Court concludes that, as a matter of law, the Plaintiff was not entitled to coverage for the flood-related damages it incurred on October 29, 2010.
III. CONCLUSION
For the foregoing reasons, it is hereby ordered that (i) the Defendant’s motion for summary judgment pursuant to Fed. R.Civ.P. 56 is granted in its entirety; (ii) the Plaintiffs’ cross-motion for summary judgment pursuant to Fed.R.Civ.P. 56 is denied; and (iii) the Plaintiffs’ claims are dismissed. The clerk of the Court is directed to close this action.
SO ORDERED.