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2d 139
The plaintiff appeals from the grant of summary judgment in favor of the
defendant government insurer in its suit to recover for flood damages under an
insurance policy with the Federal Emergency Management Agency (FEMA).
The district court assigned as its reason for granting the motion the plaintiff's
failure to file the proof of loss required by the policy. Plaintiff argues on appeal
that the district court erred in not finding that the agency's actions estopped it
from asserting such failure. We affirm.
The policy which forms the basis of the action was issued under the National
Flood Insurance Program in 1977 and covered a store building owned by the
plaintiff near Weston, West Virginia.1 In January 1978 a nearby creek flooded
plaintiff's building. Plaintiff's lessee did not inform it of possible structural
damage to the insured building from the flooding until February 1979, and the
plaintiff did not confirm this report until the following July. It then filed a
notice of loss, and the FEMA engaged a private adjuster to assess the damage.
After he investigated the claim, FEMA negotiated with the plaintiff and made
settlement offers in May 1980 and February 1981, all under a November 16,
1979, non-waiver agreement with plaintiff that preserved all the terms and
conditions of the insurance policy.2 Along with the settlement offers the
adjuster submitted to the plaintiff a completed proof of loss to sign, but the
plaintiff rejected the offers, failed to file a proof of loss, and began this suit.
3
The defendant moved for summary judgment on the ground that plaintiff had
failed to comply with the requirement of its insurance policy to file a proof of
loss within sixty days of the loss. The district court granted this motion. In
dismissing the plaintiff's claim of waiver, the Court relied both on the
provisions of the insurance contract requiring waivers of its terms to be
expressed in writing as a condition of liability and on the doctrine that the
government cannot generally be estopped by the acts of its agents.
The status of the general rule that estoppel cannot be asserted against the
government is in some flux, Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct.
1468, 1472, 67 L.Ed.2d 685 (1981) (dissenting opinion of Marshall, J.) and the
lower federal courts in particular are in disagreement about the applicability of
estoppel in cases involving failure to file timely proof of loss.3 But even those
authorities that urge a liberalization of the traditional rule denying estoppel
would require that a private party asserting estoppel against the government
establish as an absolute pre-condition all the elements of equitable estoppel
especially, "... conduct by a government agent or entity that has induced
reasonable, detrimental reliance by a private party." Note, Equitable Estoppel of
the Government, 79 Columbia L.Rev. 551, 558 (1979). In this case, as in Felder
v. Federal Crop Insurance Corp., 146 F.2d 638 (4th Cir.1944) the claimant has
failed to establish that the government took any action prior to the end of the
period for filing the required proof of loss on which the plaintiff could
reasonably have relied in failing to file proof of loss. Even assuming that the
sixty-day filing period did not begin until July 1979, (the main actions on which
the plaintiff rests its claim of estoppel) all negotiations and offers of settlement
between the parties occurred after that period had elapsed. Indeed, the plaintiff
does not argue that the government's investigation began before the sixty-day
filing period had ended. Thus, even if this court were inclined to broaden the
use of estoppel against the government, the plaintiff does not appear to have
met the threshold requirement of establishing detrimental reliance.
AFFIRMED.
accident, and until such time as the Company may expressly communicate to
the Insured (West Augusta Development Corp.) its position in writing, shall not
be construed as a waiver of any provision, term, condition, limitation, etc., in
said policy contained, held by the said Insured, nor a waiver of any right or
rights thereunder, either by him or the said Company."
3
Compare, e.g., Meister Bros., Inc. v. Macy, 674 F.2d 1174 (7th Cir.1982) and
Dempsey v. Director, FEMA, 549 F.Supp. 1334 (E.D.Ark.1982) (FEMA
estopped to assert an insured's failure to file a timely proof of loss) with Pavone,
Inc. v. HUD, 547 F.Supp. 230 (D.Conn.1982), aff'd. per curiam 697 F.2d 295
(2d Cir.1982), cert. denied sub nom. Pavone v. Guiffrida, --- U.S. ----, 103 S.Ct.
446, 74 L.Ed.2d 601 (1982); Continental Imports, Inc. v. Macy, 510 F.Supp. 64
(E.D.Pa.1981); and Cross Queen, Inc. v. Director, FEMA, 516 F.Supp. 806
(D.V.I.1980) (conduct of FEMA cannot waive requirement of filing of proof of
loss.)