     Case: 09-30342     Document: 00511223904          Page: 1    Date Filed: 09/02/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                         September 2, 2010

                                       No. 09-30342                         Lyle W. Cayce
                                                                                 Clerk

ALICE GINART, wife of/and; MICHAEL C. GINART, JR.,

                                                   Plaintiffs - Appellants
v.

STATE FARM FIRE & CASUALTY COMPANY,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CV-06841


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiffs seek reimbursement under their Standard Flood Insurance
Policy (SFIP) for costs they incurred in raising their property from its required
Base Flood Elevation (BFE) to an Advisory Base Flood Elevation (ABFE). The
district court granted summary judgment in favor of Defendant, concluding that
Plaintiffs’ claim did not fall within the coverage of their SFIP. Plaintiffs appeal.
We AFFIRM.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 BACKGROUND
      “The Federal Emergency Management Agency (FEMA) operates the
[National Flood Insurance Program (NFIP)], which is supported by the federal
treasury.” Marseilles Homeowners Condo. Ass’n, Inc. v. Fid. Nat’l Ins. Co., 542
F.3d 1053, 1054 (5th Cir. 2008). “A policy issued under the NFIP is called a . . .
SFIP.” Id. “A SFIP is ‘a regulation of [FEMA], stating the conditions under
which federal flood-insurance funds may be disbursed to eligible policyholders.’”
Id. (alteration in original) (quoting Mancini v. Redland Ins. Co., 248 F.3d 729,
733 (8th Cir. 2001)). “SFIPs may be issued directly by FEMA or through private
insurers,” like Defendant. Id.
      Plaintiffs own a rental property insured under a SFIP written by
Defendant. In 2006, following Hurricane Katrina, Plaintiffs elevated that
property from its existing BFE to a proposed ABFE. They claimed this expense
under their SFIP and Defendant disallowed the claim, leading to the instant
litigation.
      Plaintiffs concede that there is only one provision of their SFIP, known as
the “Increased Cost of Compliance” (ICC) provision, that could cover their
claimed costs. It states that the SFIP will “pay[] you to comply with State or
local floodplain management laws or ordinances that meet the minimum
standards of the National Flood Insurance Program. . . . We pay for compliance
activities that exceed these standards under [certain] conditions.” Those
conditions include, in relevant part:
      Elevation or floodproofing in any risk zone to preliminary or
      advisory base flood elevations provided by FEMA which the State
      or local government has adopted and is enforcing for flood-damaged
      structures in such areas. (This includes compliance activities in B,
      C, X, or D zones which are being changed to zones with base flood
      elevations. This also includes compliance activities in zones where
      base flood elevations are being increased, and a flood-damaged



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      structure must comply with the higher advisory base flood
      elevation.)

      Plaintiffs also concede that the St. Bernard Parish Council, the controlling
local government authority for the property, did not adopt the proposed ABFEs
as the elevation levels required of property within the Parish until April 2007,
when it passed an ordinance providing that the ABFEs would only be enforced
starting June 2007. Plaintiffs note, however, that the Parish Council began
considering whether to adopt the ABFEs in 2006. Moreover, they emphasize that
while they were in the process of elevating their property, the Parish issued a
“Substantial Damage Determination” for the property. That document indicated
that the Parish found that the property had been “substantially damage[d] due
to flooding” and thus it “may be required to be demolished or rebuilt.” It further
stated that “[a]ll substantially damaged structures which do not meet Base
Flood Elevations (BFE) established by FEMA will be required to meet certain
BFE standards.”
      Based on the foregoing, the district court granted summary judgment in
favor of Defendant. It stated that “[t]he policy language unequivocally restricts
authorized coverage for compliance activities when the local government is
currently, not prospectively, enforcing the ABFEs.” Because, at the time
Plaintiffs elevated their property, the Parish Council had not adopted the
ABFEs, the court concluded that the SFIP did not cover Plaintiffs’ expenses. The
court acknowledged that the policy’s parenthetical statement, indicating that it
would cover compliance activities in zones “where base flood elevations are being
increased,” suggested coverage might exist in some circumstances even if the
ABFEs had not yet been adopted. However, that same parenthetical indicated
that such coverage could only extend to property that “must comply with the
higher advisory base flood elevation.” Plaintiffs, the court explained, introduced
no evidence indicating they were made to comply with the ABFE. In fact, the

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Substantial Damage Determination indicated that they only needed to comply
with the current BFE. Lest there be any doubt regarding these conclusions, the
court pointed to a November 15, 2005 memorandum from FEMA, which stated,
“If the community adopts and enforces the FEMA provided ABFEs, [ICC]
benefits will be available to elevate buildings to the ABFEs. If the community
does not adopt and enforce the ABFEs, ICC benefits will only pay to elevate to
the BFE.”
      Plaintiffs filed a Rule 59(e) motion to alter or amend the judgment. The
district court denied that motion, finding no manifest error of law or fact. It
reiterated that “the unambiguous language of the SFIP” indicates Plaintiffs are
not entitled to reimbursement.
                           STANDARD OF REVIEW
      This court reviews grants of summary judgment de novo. Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538 (5th Cir. 2004).
“[E]ach movant bears the burden of establishing that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law.” Id.
at 538-39. “We must review the evidence, as well as the inferences that may be
drawn from the evidence, in the light most favorable to the party that opposed
the motion for summary judgment.” Little v. Liquid Air Corp., 952 F.2d 841, 847
(5th Cir. 1992).
                                 DISCUSSION
      In Hanvor Building Materials, Inc. v. Guiffrida, this court stated that
when disputes arise regarding the “interpretation of flood-insurance policy
provisions[,] . . . they are resolved under federal law ‘by drawing upon standard
insurance law principles.’” 748 F.2d 1011, 1013 (5th Cir. 1984) (quoting West v.
Harris, 573 F.2d 873, 881 (5th Cir. 1978)). These principles include “that, ‘if the
language of a policy is clear and unambiguous, it should be accorded its natural



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meaning.’” Id. (quoting Landress Auto Wrecking Co., Inc. v. U.S. Fid. & Guar.
Co., 696 F.2d 1290, 1292 (5th Cir. 1983)).
      Because we conclude that the SFIP provision at issue unambiguously
excludes coverage for Plaintiffs’ claim, we affirm the judgment below largely for
the reasons stated by the district court. For elevation expenses to fall within the
policy coverage for compliance with “the minimum standards of the National
Flood Insurance Program” or for “[e]levation . . . to preliminary or advisory base
flood elevations,” the policy clearly states that “State or local floodplain
management laws or ordinances” must first have begun to enforce those
elevation levels. At the time Plaintiffs’ insurance claim for raising their home
from the BFE to the ABFE accrued, they acknowledge, the local government
authority had not adopted the ABFE. To the extent that the policy can be read
as providing coverage “where base flood elevations are being increased” by the
local government authority, it also unambiguously limits such coverage to
instances where the local government required the policy holder to “comply with
the higher advisory base flood elevation.” That is clearly not the case here. The
Substantial Damage Determination introduced by Plaintiffs demonstrates that
they only needed to comply with the BFE.
      Plaintiffs—whose property is in Zone B—imply that because the ICC
provision’s parenthetical statement indicates coverage exists for “compliance
activities in B, C, X, or D zones which are being changed to zones with base flood
elevations” and does not link that coverage with those elevations being adopted
or enforced, at the very least this statement encompasses their claim. However,
the cited parenthetical sentence clearly and specifically references the earlier
terms and conditions of the ICC provision. The cited sentence begins with the
phrase “[t]his includes,” the “this” referring back to the scope of coverage
established earlier in the paragraph, which was limited to where the “local
government has adopted and is enforcing” the elevation levels. Therefore, as we

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find the SFIP language unambiguous, we must afford it that meaning, and
conclude that Plaintiffs’ claim, by their own admission, does not fall within the
policy’s terms.
      Plaintiffs make much of the fact that in 2008, well after they elevated their
home and filed the instant suit, they obtained a letter from David Paysse, Legal
Counsel to the Parish President, stating that the Substantial Damage
Determination required Plaintiffs “to meet or exceed the ABFEs.” This
after-the-fact conclusory assertion does not alter the plain language of the 2006
Substantial Damage Determination, also relied upon by Plaintiffs, which states
that Plaintiffs were only “required to meet current BFE standards.” Therefore,
we conclude that the Paysse letter is insufficient to establish a genuine issue of
material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The
mere existence of a scintilla of evidence in support of the plaintiff[s’] position will
be insufficient [to establish a genuine issue of material fact]; there must be
evidence on which the jury could reasonably find for the plaintiff[s].”).
      Plaintiffs also suggest that they are entitled to coverage because they
complied with the FEMA directions for obtaining such coverage. Plaintiffs’ Br.
22-23. However, again, the evidence introduced by Plaintiffs, the directions,
undermines this argument. The form indicates that to obtain “Increased Cost of
Compliance” coverage the expenses incurred must be to “mitigat[e]” a
Substantial Damage Determination. In other words, the costs must be required
by the Substantial Damage Determination in order to avoid the consequences of
the determination, namely demolition. Here, the Substantial Damage
Determination did not require Plaintiffs to raise their property to the ABFE, but
rather only to the BFE. Thus, Plaintiffs did not in fact comply with the directions
and their argument must fail.




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                              CONCLUSION
      Fore the foregoing reasons we AFFIRM the grant of summary judgment
in favor of Defendant.




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