United States District Court, S.D. Florida
ORDER GRANTING MOTION TO DISMISS
N. Scola, Jr. United States District Judge
Guy Attia complains that Defendant Wright National Flood
Insurance Company breached the parties' insurance
contract by failing to properly adjust Attia's claim for
real property damage incurred as a result of Hurricane Irma
in September 2017. In his complaint, in addition to seeking
compensation for the damage to his property, Attia also seeks
to recover “for damages, plus interest, court costs and
reasonable attorney's fees pursuant to Section 627.428,
Florida Statutes.” (Compl., ECF No. 1-1, 6.) Wright
argues Attia's request for any recovery under state law
should be dismissed from Attia's complaint because such
damages are preempted and barred by federal statutory,
regulatory, and common law. Wright also maintains Attia's
claim for interest is also barred by the
“no-interest” rule. Attia has not responded to
Wright's motion and the time to do so has long since
passed. For the following reasons, the Court
grants Wright's motion (ECF No.
while acting in its capacity as a Write-Your-Own Program
insurance carrier, under the National Flood Insurance
Program, issued a flood policy to Attia on his home located
at 11420 North Bayshore Drive in North Miami. Attia says his
property sustained a covered loss, on September 10, 2017, as
a result of Hurricane Irma. Although Wright acknowledged that
a loss occurred, Attia maintains Wright has nonetheless
refused to tender the full amount of Attia's damages.
Accordingly, Attia maintains Wright has breached the
parties' insurance agreement.
initially filed this case in state court. Wright removed it
to this Court, however, asserting that this Court has
original exclusive jurisdiction over claims presented under
the flood policy issued to Attia. Attia expressed no
opposition to Wright's removal.
Legal Standard and Statutory Background
considering a motion to dismiss, filed under Federal Rule of
Civil Procedure 12(b)(6), must accept all of the
complaint's allegations as true, construing them in the
light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
Although a pleading need only contain a short and plain
statement of the claim showing that the pleader is entitled
to relief, a plaintiff must nevertheless articulate
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (quoting Fed.R.Civ.P. 8(a)(2)) (internal punctuation
omitted). A court must dismiss a plaintiff's claims if
she fails to nudge her “claims across the line from
conceivable to plausible.” Twombly, 550 U.S.
Eleventh Circuit has “adopted the ‘incorporation
by reference' doctrine, under which a document attached
to a motion to dismiss may be considered by the court without
converting the motion into one for summary judgment only if
the attached document is: (1) central to the plaintiff's
claim; and (2) undisputed.” Horsley v. Feldt,
304 F.3d 1125, 1134 (11th Cir. 2002); see Hill v. State
Farm Ins. Co., 181 F.Supp.3d 980, 986, n. 2 (M.D. Fla.
2016) (holding that the court could consider the insurance
policies included in the defendant's motion to dismiss
even though not attached to the complaint). As Attia's
claim is that Wright breached the parties' policy, the
declarations page and the Standard Flood Insurance Policy are
central to the claim. The only policy issued by Wright to
Attia was the Standard Policy, which is a codified federal
regulation available at 44 C.F.R. Part 61, Appendix A(1), the
terms and conditions of which cannot be disputed.
the statutory and regulatory schemes implicated in this case,
Congress created the National Flood Insurance Program under
the National Flood Insurance Act of 1968. 42 U.S.C.
§§ 4001, et seq. The Administrator of the
Federal Emergency Management Agency is charged with
overseeing and implementing the NFIP. 42 U.S.C. § 4041.
Additionally, the Administrator of FEMA is statutorily
authorized to promulgate regulations “for general terms
and conditions of insurability which shall be applicable to
properties eligible for flood insurance coverage.” 42
U.S.C. § 4013. The regulations also prescribe the
methods by which approved losses under the NFIP may be
adjusted and paid. 42 U.S.C. § 4019. Under FEMA
regulations, “all policies issued under the NFIP must
be issued using the terms and conditions of the Standard
Flood Insurance Policy found in 44 C.F.R. Part 61, Appendix
A.” Battle v. Seibels Bruce Ins. Co., 288 F.3d
596, 599 (4th Cir. 2002) (citing 44 C.F.R. §§
61.4(b), 61.13(d), (e), 62.23(c)).
1983, under the “Write-Your-Own” Program, the
Administrator of FEMA authorized the Standard Flood Insurance
Policy to be issued by private insurance companies, commonly
referred to as WYO Program carriers (e.g. Wright). 42 U.S.C.
§ 4071(a)(1). WYO Program carriers issuing flood
insurance under the NFIP arrange for the adjustment,
settlement, payment, and defense of all claims arising from
the policy. 44 C.F.R. § 62.23(d). Congress underwrites
all operations of the NFIP, including claims adjustment,
through United States Treasury funds. 42 U.S.C. §
4017(d)(1). The federal government pays all flood insurance
claims and reimburses WYO Program carriers their costs,
including defense costs, for the adjustment and payment of
claims. Grissom v. Liberty Mut. Fire Ins. Co., 678
F.3d 397, 402 (5th Cir. 2012) (citations omitted).
statutorily authorized FEMA to enter into arrangements with
private insurance companies that operate as the “fiscal
agents of the United States.” 42 U.S.C. §
4071(a)(1). In effect, a suit against a WYO Program carrier
is the functional equivalent of a suit against FEMA. Van
Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 166-67
(3d Cir. 1998) (citation omitted). Thus, a judgment against a
WYO Program carrier constitutes a judgment against FEMA, and
consequently, a direct charge on the United States Treasury.
Shuford v. Fid. Nat. Prop. & Cas. Ins. Co., 508
F.3d 1337, 1343 (11th Cir. 2007). Under the terms of the
Standard Flood Insurance Policy, “all disputes arising
from the handling of any claim under the policy are governed
exclusively by . . . FEMA [regulations], the National Flood
Insurance Act of 1968, . . . and [f]ederal common law.”
44 C.F.R. § Pt. 61, App. A(1); see also West v.
Harris, 573 F.2d 873, 881 (5th Cir. 1978) (“Since
the flood insurance program is a child of Congress, conceived
to achieve policies which are national in scope, and since
the federal government participates extensively in the
program[, ] uniformity of decision . . . mandates the
application of federal law.”)
initial matter, the Court could grant Wright's motion by
default under Local Rule 7.1 as no timely response in
opposition was ever filed. Nevertheless, the Court has
evaluated the motion on the merits as well and finds
Wright's position well taken.
addition to the alleged breach of the parties' agreement
as reflected in the Standard Policy, Attia also seeks
compensation under Florida law, including requests for fees,
costs, and interest. ...