MEMORANDUM OPINION
Pending before this Court are Defendants’ Motions to Dismiss Complaint pursuant to Fed.R.Civ.P. 12(b)(6), and Defendants’ Motions to Quash Plaintiffs’ Demand for a Jury Trial. This Court has jurisdiction under 28 U.S.C. § 1331. The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D.Md.2004). For the reasons stated below, Defendants’ Motions to Dismiss Complaint are GRANTED with respect to Count II of the Complaint and DENIED as to the remaining counts, and Defendants’ Motions to Quash Plaintiffs’ Demand for a Jury Trial are GRANTED with respect to Counts I and III and DENIED as to the remaining counts.
BACKGROUND
As alleged in the complaint, several days before tropical storm Isabel hit the State of Maryland on September 17, 2003, Plaintiffs Kevin L. Reeder and Tammi L. Reed-er (the “Reeders”) decided to purchase homeowner’s and flood insurance. The Reeders contacted Defendant John E. Gallup, Jr. Insurance (“Gallup”), who sent Ms. Karen Toohey to the Reeders’ home to evaluate their property and discuss purchasing an insurance policy. After responding to specific requests made by the Reeders, Ms. Toohey represented that their swimming pool and “the entirety of the contents in their home would be covered along with any contents they placed in a wooden shed on the premises.” (Compl.lHI 11-13.)
On September 15, 2003, the insurance policy issued by Defendant Nationwide Mutual Fire Insurance Company (“Nationwide”) and purchased by the Reeders became effective. (ComplY 14.) The Reed-ers received a “Declarations Page” that described the “Property” as “Three or More Floors with No Enclosure. A Single Family Residence, Elevated Building.” and also described the “Contents” as “Household Contents Located on First Floor and Above.” (Id. at ¶¶ 14-16.) Based on Ms. Toohey’s representations and the Declarations Page, the Reeders believed that their swimming pool and all contents in their home and shed would be covered. (Id. at ¶ 17.) The Reeders did not receive a copy of the actual policy until tropical storm *753 Isabel had passed. (Id.) Although not mentioned in the complaint, the flood im surance policy that the Reeders eventually received provides that “[t]his 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, ... and Federal common law.” See 44 C.F.R. Pt. 61, App. A, Art. IX.
On September 17, 2003, tropical storm Isabel caused significant damages to the Reeders’ property. The Reeders estimated their losses at $150,000 and promptly submitted an inventory of damages to Defendants. An adjuster from Nationwide, however, determined that the Reeders suffered only $865.52 in damages. (CompU 21.) The Reeders objected and Nationwide sent another adjuster to the Reeders’ property. This second adjuster determined that the Reeders’ damages amounted to $11,594.17. (Id. at ¶ 23.) The Reeders contacted Nationwide to inquire about the discrepancy between their estimated losses and the estimate provided by the second adjuster. Nationwide informed the Reeders that their pool, property on the first floor of their home, their shed, and property in their shed would not be covered. (Id. at ¶¶ 24-25 & 45-51.)
Plaintiffs initially filed their complaint in the Circuit Court for Baltimore County, Maryland. 1 Plaintiffs’ complaint alleges a variety of breach of contract and state law tort claims against Defendants John E. Gallup Jr. Insurance and Nationwide Mutual Fire Insurance Company. 2 On May 10, 2005, Defendants filed a Joint Notice of Removal. . On May 12, 2005, Nationwide filed its Motion to Quash Plaintiffs’ Demand for a Jury Trial. On May 16, 2005, Nationwide filed its Motion to Dismiss Plaintiffs’ Complaint, and Gallup adopted Nationwide’s motions in all respects.
STANDARD OF REVIEW
Defendants seek to dismiss Plaintiffs’ action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and contend that Plaintiffs’ complaint fails to state a claim upon which relief can be granted. As the legal sufficiency of the complaint is challenged under a Rule 12(b)(6) motion, the court assumes “the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint’s allegations.”
Eastern, Shore Mkts. v. J.D. Assocs. Ltd. P’ship,
In reviewing the complaint, the court accepts all well-pleaded allegations of the complaint as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.
Ibarra v. United States,
DISCUSSION
I. National Flood Insurance Program.
The National Flood Insurance Program (“NFIP”) was established to make flood insurance available on reasonable terms and conditions and reduce fiscal pressure on federal flood relief efforts. See 42 U.S.C. § 4001. The NFIP is administered by the Director of the Federal Emergency Management Agency (“FEMA”) under the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4129 (“NFIA”). The NFIP is funded through the National Flood Insurance Fund, which was established by FEMA in the United States Treasury.
As the United States Court of Appeals for the Fourth Circuit has explained:
When Congress created the NFIP it gave the program’s administrator two ways to execute the program and discretion to choose between them. The first method, the “Industry Program,” allows a pool of private insurers to underwrite flood insurance with financial backing from the government. The “Government Program,” the second option, allows the government to run the NFIP itself — offering federally underwritten policies — with the potential for administrative assistance from private insurers. In 1977[,] the Secretary of Housing and Urban Development, who ran the NFIP at the time (it has since been taken over by the Federal Emergency Management Agency), decided that the Industry Program was unworkable and ended it. He then implemented the Government Program, which has continued to the present.
Battle v. Seibels Bruce Ins. Co.,
In 1983, the Director of FEMA created the Write-Your-Own Program (“WYO Program”) under the Government Program. The WYO Program allows private insurance companies to issue flood insurance polices in their own name. 44 C.F.R. §§ 61.13 & 62.23. Participating insurance companies are known as “WYO Companies.” Id. Flood insurance polices issued by WYO Companies must contain the exact terms and conditions of the Standard Flood Insurance Policy (“SFIP”) found in 44 C.F.R. Pt. 61, App. A. 44 C.F.R. *755 §§ 61.4(b), 61.3, 61.13(d), (e), 62.23(c). Those terms and conditions cannot be varied by the WYO Company without the express written consent of the Federal Insurance Administrator. 44 C.F.R. §§ 61.4(b), 61.13(d) & (e), 62.23(c) & (d).
WYO Companies perform significant administrative functions. In particular, “[a] WYO Company issuing flood insurance coverage shall arrange for the adjustment, settlement, payment and defense of all claims arising from policies of flood insurance it issues under the [NFIP], based upon the terms and conditions of the [SFIP.]” 44 C.F.R. § 62.23(d). Although the Government, not the WYO Companies, ultimately pays the claims, “the responsibility for defending claims will be upon the Write Your Own Company and defense costs will be part of the unallocated or allocated claim expense allowance, depending on whether a staff counsel or an outside attorney handles the defense of the matter.” 44 C.F.R. § 62.23(0(6).
II. Plaintiffs’ Complaint.
Plaintiffs’ Complaint contains eight counts. In Count I, Plaintiffs assert a breach of contract claim against Nationwide for failure to cover property on the first floor of Plaintiffs’ home. In Counts II and III, Plaintiffs assert breach of contract claims against Nationwide and Gallup for failure to cover Plaintiffs’ pool and shed. 3 In Counts IV-VIII, Plaintiffs assert tort claims under Maryland common-law against Nationwide and Gallup for negligence, intentional misrepresentation, negligent misrepresentation, fraud, and deceit in connection with representations made to Plaintiffs during the procurement of the Reeders’ insurance policy and statements made in the Declarations Page. 4 Plaintiffs demand a jury trial on all counts.
III. Jurisdiction.
In this case, Nationwide is a WYO Company that issued a Standard Flood Insurance Policy (“SFIP”) to the Reeders. 5 Article IX of the Reeder’s SFIP provides as follows:
What Law Governs: 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, Art. IX. Accordingly, this Court possesses subject matter jurisdiction over Plaintiffs’ breach of contract claims pursuant to 28 U.S.C. § 1331.
See Battle,
IV Motion to Dismiss.
A. Property On First Floor (Count I).
Defendants argue that Plaintiffs’ breach of contract claim against Nationwide for failure to cover property on the first floor of their home should be dismissed because the Standard Flood Insurance Policy (“SFIP”) specifically excludes such property. Plaintiffs respond that the Declarations Page — which they received before tropical storm Isabel — extends coverage to “HOUSEHOLD CONTENTS LOCATED ON FIRST FLOOR AND ABOVE” and is therefore inconsistent with the body of the SFIP — which they did not receive until after tropical storm Isabel.
At first glance, this dispute appears to require that this Court resolve an apparent ambiguity between language in the Declarations Page that provides coverage for household contents on the first floor, and provisions located in the body of the SFIP that exclude the very same property.
6
Cf.
44 C.F.R. Pt. 61, App. A., Art. 11(10) (“The Declarations Page is a part of this flood insurance policy.”);
Riverside Building Supply, Inc. v. FEMA,
This Court cannot conclude that no relief could be granted to Plaintiffs under any set of facts which could be proved consistent with the allegations in Count I. First, facts may emerge that could resolve this breach of contract claim in Plaintiffs’ favor.
Cf. Riverside,
In addition, this Court is unwilling to treat Defendants’ motion to dismiss as one for summary judgment at this early stage in the case. First, Plaintiffs have not been afforded a reasonable opportunity to present all relevant material with respect to the Declarations Page(s) allegedly received
*757
before tropical storm Isabel.
See, e.g., Jordan v. Washington Mut. Bank,
B. Pool (Count II).
Defendants contend that Plaintiffs’ breach of contract claim against Nationwide and Gallup for failure to cover their pool should be dismissed because the SFIP excludes coverage of such property. In response, Plaintiffs argue that “they were never provided the policy prior to [tropical storm Isabel]” and “they relied exclusively upon the assertions of their insurance agent, Ms. Toohey.” (Pls’ Opp’n p. 8.)
This Court finds that Plaintiffs have not stated a breach of contract claim against Defendants for failure to cover their pool. First, Article IV.14 of Plaintiffs’ SFIP specifically provides that pools and their equipment are not covered:
Property Not Covered: ... Hot tubs and spas that are not bathroom fixtures, and swimming pools, and their equipment, such as, but not limited to, heaters, filters, pumps, and pipes, wherever located.
44 C.F.R. Pt. 61, App. A. Second, the alleged representations of Ms. Toohey are irrelevant to this federal breach of contract claim as a matter of law because “those who deal with the Government are expected to know the law and may not rely on the conduct of government agents contrary to the law.”
Heckler v. Community Health Servs.,
Even accepting the allegations of Plaintiffs’ Complaint as true and construing the facts and reasonable inferences derived therefrom in the light most favorable to Plaintiffs, this Court finds there are no set of facts which could be proved which would entitle the Plaintiffs to relief on Count II. Accordingly, Defendants’ motion to dismiss Count II of Plaintiffs’ Complaint is GRANTED.
Ibarra,
C. Shed (Count III).
Defendants argue that Plaintiffs’ breach of contract claim against Nationwide and *758 Gallup for failure to cover their shed and personal property inside the shed should be dismissed because the SFIP specifically excludes such property. In response, Plaintiffs simply dispute that the SFIP excludes these types of property.
At first glance, Plaintiffs do not appear to have stated a breach of contract claim against Defendants for failure to cover their shed. The preamble to Plaintiffs’ SFIP provides that coverage is limited to “[a] non-condominium residential building designed for principal use as a dwelling place of one to four families.” 44 C.F.R. Pt. 61, App. A, Preamble. Given that Plaintiffs do not allege that their shed is a dwelling place for families, it seems reasonable to conclude that the SFIP does not extend coverage to sheds. See also 44 C.F.R. Pt. 61, App. A, Art. III.A (describing coverage under the SFIP for buildings).
This Court, however, cannot conclude that Plaintiffs have failed to state a claim with respect to the shed. There is nothing in the record before this Court to suggest that Plaintiffs’ shed does not, for example, fall within the coverage extended to all “additions and extensions attached to and in contact with the dwelling by means of a rigid exterior wall, a solid load-bearing interior wall, a stairway, an elevated walkway, or a roof.” 44 C.F.R. Pt. 61, App. A, Art. III.A.2. Although Defendants allege that Plaintiffs’ shed is “detached,”
(see
Defs’ Mtn. p. 10), this Court must disregard those allegations and accept instead the facts and reasonable inferences derived from the allegations made in Plaintiffs’ Complaint. Because those facts do not preclude coverage for the shed as a matter of law, it does not appear certain that Plaintiffs cannot prove any set of facts in support of their claim entitling them to relief.
Ibarra,
A different analysis applies to Plaintiffs’ breach of contract claim against Defendants for failure to cover personal property that was located inside the shed. Defendants argue that, even if Plaintiffs’ shed is covered, the specific personal property that Plaintiffs claim was lost from their shed is excluded under the SFIP.
(See
Defs’ Reply p. 10-11.) First, Plaintiffs have had no opportunity to respond to this argument, which was raised for the first time in Defendants’ reply brief.
See Jordan,
D. Extra-Contractual Tort Claims (Counts IV-VIII).
Defendants argue that Plaintiffs’ state law tort claims for negligence, intentional misrepresentation, negligent misrepresentation, fraud, and deceit are preempted by federal law as set forth in the SFIP.
(See
Mot. to Dismiss p. 10. (“Courts throughout the country have dismissed similar extra-contractual claims under the SFIP on the basis of [conflict] preemption.”).) This argument fails because it refuses to recognize the “critical distinction between claims seeking recovery under the SFIP — which are preempted — and those arising from alleged misrepresentations made during the procurement of the policy — which are not.”
*759
Houck v. State Farm Fire and Cas. Co.,
Each of the state law claims that Defendants contend conflict with federal law involve alleged misrepresentations made to Plaintiffs during the procurement of their SFIP. In Count IV, for example, Plaintiffs assert a negligence claim against Gallup for “assuring] Plaintiffs that their pool would be covered in the event of a flood.” (ComplV 56.) Similarly, Counts V-VI assert claims of intentional and negligent misrepresentation, fraud, and deceit against Nationwide for “promises made by [Gallup] and the Declaration provided by Nationwide.... ” (Id. at ¶ 65.) Likewise, Counts VII-VIII assert that Gallup and Nationwide are “vicariously liable for the torts of [their] employees.” (Id. at ¶ 83.) These claims do not appear to arise out of the terms of Plaintiffs’ SFIP or any claim handling on Nationwide’s part.
Defendants’ primary argument for preemption is that “[c]ourts throughout the country have dismissed similar extra-contractual claims under the SFIP on the basis of preemption.” (Defs’ Mtn. p. 10.) Most of the decisions cited by Defendants, however, simply do not resolve the issue presented by the case at bar,
ie.,
whether state law tort claims arising out of misrepresentations made in the procurement of a flood insurance policy are preempted by federal law. For example, the United States Courts of Appeals have yet to resolve whether procurement-based claims are preempted by federal flood insurance law.
See Wright v. Allstate Ins. Co.,
The Fourth Circuit, moreover, recently declined to address preemption of state law claims in the national flood insurance context.
See Battle v. Seibels Bruce Ins. Co.,
Finally, although at least two United States District Courts outside the Fourth Circuit have suggested or held that procurement-based claims are preempted, see
Scritchfield v. Mutual of Omaha Ins. Co.,
State law is preempted under the Supremacy Clause of the United States Constitution where: (1) Congress explicitly defines the extent to which its enactments preempt state law,
ie.,
express preemption; (2) state law regulates conduct in a field that Congress intended the federal government to occupy exclusively,
ie.,
field preemption; or (3) state law actually conflicts with federal law,
ie.,
conflict preemption.
10
Conflict preemption exists “where it is impossible for a private party to comply with both state and federal requirements ... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Id.
(citations and internal quotation marks omitted). Preemption is primarily a question of congressional intent.
Medtronic Inc. v. Lohr, 518
U.S. 470, 483-84,
Having reviewed the cases, statutes, and regulations cited by the parties, this Court finds that state law tort claims arising out of alleged misrepresentations made during the procurement of an SFIP are not preempted in the flood insurance context. First, Defendants do not argue that Congress intended to expressly preempt or exclusively occupy this particular area of state law. Indeed, statutes issued under the NFIA and regulations promulgated by FEMA appear to contemplate negligence actions against WYO Companies. See, e.g., 42 U.S.C. § 4081(c) (“The Director of the Federal Emergency Management Agency may not hold harmless or indemnify an agent or broker for his or her error or omission.”). FEMA regulations, moreover, explicitly contemplate state administrative agencies exercising auditing and regulatory control over WYO Companies. See 44 C.F.R. Pt. 62, App. B(b) (“The WYO Companies are subject to audit, examination, and regulatory controls of the various States.”) ' & (c) (“[T]his process is consistent with customary reinsurance practices and avoids duplication of examinations performed under the auspices of individual State Insurance Departments, NAIC Zone examinations, and independent CPA firms.”).
This Court finds these particular regulations significant in light of the presumption against preemption in areas such as insurance, which are traditionally regulated under state police powers.
Cf. Gottlieb v. Lincoln Nat’l Life Ins. Co.,
*762 Furthermore, there is no conflict preemption as there is no actual conflict between state law tort claims arising out of alleged misrepresentations made during the procurement of an SFIP and federal flood insurance law. For example, the regulations in effect when Plaintiffs purchased their SFIP from Defendants remove negligence-type claims from the “Arrangement” between FEMA and WYO Companies:
The parties [to the Arrangement] shall not be liable to each other for damages caused by inadvertent delay, error, or omission made in connection with any transaction under this Arrangement. In the event of such actions, the responsible party must attempt, to rectify that error as soon as possible after discovery of the error and act to mitigate any costs incurred due to that error.
44 C.F.R. Pt. 62, App. A, Art. IX (amended 2004). 12 FEMA, moreover, does not reimburse WYO Companies for judgments arising out errors or omissions made by WYO Companies:
In the event that steps are not taken to rectify the situation and such action leads to claims against the company, the NFIP, or other related entities, the responsible party shall bear all liability attached to that delay, error or omission to the extent permissible by law.
Id.;
13
see also
42 U.S.C. § 4081(c) (the Director of FEMA “may not hold harmless
*763
or indemnify an agent or broker for his or her error or omission.”). As a result, United States Treasury funds are not at stake for judgments against WYO Companies arising out of tort claims based on misrepresentations made during the procurement of SFIPs.
See, e.g., Spence v. Omaha Indemnity Ins.,
Finally, this court notes that WYO Companies are afforded significant independence when marketing flood insurance policies. For example, regulations in effect when Plaintiffs purchased their SFIP allowed WYO Companies to “market flood insurance policies in any manner consistent with its customary method of operation, provided that there is adherence to Program statutes, regulations and explicit guidelines.” 44 C.F.R. Pt. 62, App. A, Art. II, sec. G (amended 2004);
14
see also Spence,
For the reasons stated above, this Court finds that Plaintiffs’ state law tort claims for negligence, intentional misrepresentation, negligent misrepresentation, fraud, and deceit are not preempted by federal flood insurance law.
15
To find otherwise “would leave an entire area of the insurance field unregulated and immunize private insurers no matter how egregious their conduct.”
Bleecker,
*764 E. Reliance on Agent’s Misrepresentations.
Defendants argue that Plaintiffs’ state law tort claims must be dismissed because Plaintiffs are charged with constructive notice of the terms and conditions of their SFIP. As a result, Defendants contend that “[n]o one, not Nationwide, Gallup, or their employees, could have made any misstatements regarding coverage to the Plaintiffs that would have justified the Plaintiffs’ reliance thereon. If any such statements were made, they were ‘void’ under federal law.” (Defs’ Mtn. p. 13) (citing
Federal Crop Ins. Corp. v. Merrill,
This very argument, however, was rejected by the United States Court of Appeals for the Fifth Circuit in
Spence v. Omaha Indemnity Ins.,
Defendants also contend that FEMA “legislatively preempted” any potential claims of misrepresentation by promulgating the following regulation:
The standard flood insurance policy is authorized only under terms and conditions established by Federal statute, the program’s regulations, the Administrator’s interpretations and the express terms of the policy itself. Accordingly, representations regarding the extent and scope of coverage which are not consistent with the National Flood Insurance Act of 1968, as amended, or the Program’s regulations, are void, and the duly licensed property or casualty agent acts for the insured and does not act as agent for the Federal Government, the Federal Emergency Management Agency, or the servicing agent.
*765
44 C.F.R. § 61.5(e) (emphasis added). This argument has also been considered and rejected by at least two courts.
See Houck,
V. Proof of Loss.
Defendants argue that Plaintiffs’ Complaint should be dismissed because Plaintiffs failed to submit a timely and proper proof of loss in accordance with the terms of the SFIP. In response, Plaintiffs maintain that “[t]ime and again, Plaintiffs informed defendant Nationwide that they had filed the required Proof of Loss in conversations and in writing.” (Pis’ Opp’n p. 6.)
A proof of loss (“POL”) is a document that states the amount of the claim and provides specific details concerning the loss. Article VII.J.4 of Plaintiffs’ SFIP required that:
Requirements In Case of Loss: ... Within 60 days after the loss, send us a proof of loss, which is your statement of the amount you are claiming under the policy signed and sworn to by you, and which furnishes us with the following information:-
a. The date and time of loss;
b. A brief explanation of how the loss happened;
c. Your interest (for example, “owner”) and the interest, if any, of others in the damaged property;
d. Details of any other insurance that may cover the loss;
e. Changes in title or occupancy of the covered property during the term of the policy;
f. Specifications of damaged buildings and detailed repair estimates;
g. Names of mortgagees or anyone else having a lien, charge, or claim against the insured property;
h. Details about who occupied any insured building at the time of loss and for what purpose; and
i. The inventory of damaged personal property described [ ] above.
44 C.F.R. Pt. 61, App. A. It is well-established that insureds must strictly comply with the POL requirements under an SFIP.
See, e.g., Flick v. Liberty Mutual Fire Ins. Co.,
The precise issue in this case is whether the copy of the POL that Plaintiffs attached to their opposition papers complies with the requirements set forth above. Although Plaintiffs’ POL does not appear to comply with the requirement that it be “sworn,” this Court is unwilling to treat Defendants’ motion to dismiss as one for summary judgment at this early stage in the case. First, Plaintiffs have
*766
not been afforded a reasonable opportunity to present all relevant material to the Court with respect to their POL.
Jordan,
VI. Motion to Quash Jury Demand.
Defendants also filed motions to quash the jury demand set forth in Plaintiffs’ Complaint. It is well-established that Congress has not provided for the right to a jury trial in actions against FEMA or a WYO Company with respect to claims for coverage under a SFIP or disputes regarding terms of the SFIP.
See, e.g.,
42 U.S.C. § 4072;
Bleecker,
The analysis differs with respect to Plaintiffs’ state law tort claims against Defendants for negligence, intentional misrepresentation, negligent misrepresentation, fraud, and deceit. Where federal funds are not at stake in connection with such claims, courts have found that plaintiffs are entitled to a jury trial.
See Bleecker,
CONCLUSION
For the reasons stated above, Defendants’ Motions to Dismiss Plaintiffs’ Complaint are GRANTED-IN-PART and DENIED-IN-PART and Defendants’ Motions to Quash Plaintiffs’ Demand for a Jury Trial are GRANTED-IN-PART and DENIED-IN-PART.
Notes
. The record does not clearly reflect the date on which the Plaintiffs filed their complaint in the Circuit Court for Baltimore County. (See Compl. (neither stamped nor dated by the Circuit Court for Baltimore County); Notice of Removal ¶ 2 (stating that Nationwide and Gallup received notice of Plaintiffs’ complaint in April 2005).)
. Plaintiffs' complaint mistakenly identifies Defendant Nationwide Mutual Fire Insurance Company as "Nationwide Flood Insurance Program.” (See Compl.; Notice of Removal p. 1 n. 1.)
.Although it does not explicitly reference the NFIP, Plaintiffs’ Complaint states that "[a]t the time of the occurrence, Plaintiffs were insured via the Nationwide Flood Program.” (Comply 29.) Given the confusion surrounding Nationwide's proper name, see BACKGROUND n. 2, supra, this Court cannot determine whether Plaintiffs intended to refer to the NFIP in their Complaint.
. Plaintiffs misnumbered Counts IV-VIII in their Complaint. To avoid confusion, this Opinion refers to those counts as follows: "Count IV” includes ¶¶ 52-59 of Plaintiff's. Complaint; "Count V” includes ¶¶ 60-70; "Count VI” includes ¶¶ 71-81; "Count VII” includes ¶¶ 82-85; and "Count VIII” includes ¶¶ 86-89.
. Gallup's role in the NFIP, if any, is unclear from the record.
. Plaintiffs concede that the body of the SFIP excludes coverage for household property on the first floor of their home. (See Compl. ¶ 74 ("xhe actual insurance policy states for all intents and purposes that Plaintiffs’ personal property located on the first floor of their residence would not be covered.”).)
. Defendants attempt to identify "certain elementary construction principles” in their reply to Plaintiffs' opposition. (See Defs' Reply p. 8 (citing 11 Williston on Contracts § 32:3 (4th ed.1999) for the proposition that "when there is a conflict between general and specific provisions of a contract, the specific clause controls its meaning”).) Putting aside that Plaintiffs have had no opportunity to respond to these arguments, this Court notes that Wil-liston on Contracts also articulates principles of interpretation that favor Plaintiffs. See, e.g., 16 Williston on Contracts § 49:25 (4th ed. 1999) ("The declarations page is the one page of the policy likely to be read by the insured, and contains the terms most likely to have been requested by the insured; it therefore is held to define the coverage afforded the insured and to control over more restrictive terms contained in the body of the policy.”) (citation omitted).
. The United States Court of Appeals for the Fifth Circuit emphasized in
Wright
that its prior decision in
Spence v. Omaha Indemnity Ins.,
The issue in Spence was a narrow one: whether federal or state law determined the statute of limitations for bringing state law claims against a WYO. While we held that state law would govern the statute of limitations for state law tort claims, we did not foreclose the possibility of field or conflict preemption. Rather, our holding was premised on the fact that "the NFIA contains no express preemption provision" and "neither [the insurer] nor the federal government as amicus suggests preemption of the state law fraud claim.” Thus, the issue of whether the NFIA preempted state law tort claims was not before the court in Spence, and the court did not address it.
Id. at 389-90.
.
Bleecker
and
Peal
may not be as inconsistent as they initially appear. First, both decisions agree that no basis exists for finding express or field preemption of state law tort claims in the flood insurance context. See
Bleecker,
. The Supremacy Clause is set forth in Article VI, Clause 2 of the United States Constitution
. This Court notes that other courts have argued that the legislative history of the NFIA suggests that Congress did not intend to preempt all state law torts arising out of flood insurance policies.
See Van Holt v. Liberty Mut. Fire Ins. Co.,
. The current version of Article IX, which became effective October 1, 2004, explicitly contemplates claims arising out of negligence by the WYO Company:
In the event of negligence by tire Company that has not resulted in litigation but has resulted in a claim against the Company, FEMA will not consider reimbursement of the Company for costs incurred due to that negligence unless the Company takes all reasonable actions to rectify the negligence and to mitigate any such costs as soon as possible after discovery of the negligence. Further, (i) if the claim against the Company is grounded in actions significantly outside the scope of this Arrangement or (ii) if there is negligence by the agent, FEMA will not reimburse any costs incurred due to that negligence. The Company will be notified in writing within thirty (30) days of a decision not to reimburse. In the event the Company wishes to petition for reconsideration of the decision not to reimburse, the procedure in Article III, Section D.3.d shall apply.
44 C.F.R. Pt. 62, App. A, Art. IX (effective October 1, 2004).
. FEMA regulations promulgated after Plaintiffs' claims arose explicitly provide that WYO Companies will not be reimbursed for issues of agent negligence that are outside the scope of the Arrangement. See 44 C.F.R. Pt. 62, App. A, Art. 111 (effective October 1, 2004) ("If the FEMA [Office of General Counsel] finds that the litigation is grounded in actions by the Company that are significantly outside the scope of this Arrangement, and/or involves issues of agent negligence, then the FEMA OGC shall make a recommendation to the Administrator regarding whether all or part of the litigation is significantly outside the scope of the Arrangement ... any award *763 or judgment for damages and any costs to defend such litigation will not be recognized under Article III as a reimbursable loss cost, expense or expense reimbursement.”). These regulations make explicit what appears to have been standard FEMA practice with respect to reimbursement of litigation costs. See 69 Fed.Reg. 45,607 at 45,608 (July 30, 2004) (noting that “FEMA will continue to rely on the 'significantly outside the scope of the Arrangement' standard for [litigation] reimbursement decisions”) (emphasis added).
. The current version of Article II, section G is substantively identical and provides that "[t]he Company shall market flood insurance policies in a manner consistent with marketing guidelines established by FIA." 44 C.F.R. Pt. 62, App. A, Art. II, sec. G (effective October 1, 2004).
. This Court notes that a different analysis might apply to state law tort claims arising out of misrepresentations made during the claims handling process.
See
44 C.F.R. Pt. 61, App. A, Art. IX ("This policy and
dll disputes arising from the handling of any claim
under the policy are governed exclusively by flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, ... and Federal common law.”) (emphasis added); 65 Fed.Reg. 34,824 at 34,827 (May 31, 2000) (explaining that Article IX clarifies "that matters pertaining to the Standard Flood Insurance Policy,
including issues relating to and arising out of claims handling,
must be heard in Federal Court and are governed exclusively by Federal Law.”) (emphasis added);
see also Richmond Printing, LLC v. Director, FEMA,
. Defendants make no attempt to distinguish this aspect of
Spence,
citing instead to
Larmann v. State Farm Ins. Co.,
No. 03-2993,