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

                                                 FILED
                                                                           August 5, 2009

                                     No. 08-31212                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



CHRIS V WIENTJES; JO ANN C WIENTJES

                                                   Plaintiffs - Appellants
v.

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-3762


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellants Chris and Jo Ann Wientjes appeal the district court’s grant of
summary judgment in favor of Appellee American Bankers Insurance Company
of Florida on their claims for additional flood proceeds under their Standard
Flood Insurance Policy. The district court concluded that the Wientjeses were
not entitled to additional benefits due to their failure to submit a sworn proof of
loss with respect to the specific damages at issue. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-31212

      The Wientjeses’ dispute with their flood insurance carrier is for damages
to their Metairie, Louisiana home caused by Hurricane Katrina. They received
both an initial and a supplemental payment from American Bankers. The
Wientjeses then sought additional benefits for damages to their foundation and
to the home’s exterior plywood sheathing. American Bankers denied this last
claim. The Wientjeses filed suit seeking its payment. Relying on the Wientjeses’
failure to submit a sworn proof of loss on the foundation and plywood sheathing
damage, the district court granted summary judgment in favor of American
Bankers. The Wientjeses timely appealed.
      We review a grant or denial of summary judgment de novo, applying the
same standard as the district court. Noble Energy, Inc. v. Bituminous Cas. Co.,
529 F.3d 642, 645 (5th Cir. 2008). Summary judgment is proper when the
“pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
      The Wientjeses argue that they were not required to submit a proof of loss
prior to filing suit on their claims. Initially, they argue that a press release
issued by the Federal Emergency Management Agency on September 20, 2005,
waived the proof-of-loss requirement for recovery of damages caused by
Hurricane Katrina. That FEMA press release stated that the National Flood
Insurance Program “has waived the usual requirement that the policyholder
must submit a proof-of-loss and instead where the policyholder agrees, will rely
on a report by the claims adjuster.”
      The Wientjeses allege that this statement is an unconditional waiver of the
ordinary proof-of-loss requirement. In their view, a report by the claims adjuster
is a proper substitute for a sworn proof of loss, even if the carrier does not agree
to pay part of a submitted claim. Thus, because the initial adjuster’s report for
their house included repair estimates for foundation and plywood sheathing

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damage, that report would satisfy the proof-of-loss requirement for their claims,
despite the fact that American Bankers decided not to pay those estimated
amounts.
      The Wientjeses also suggest that the adjuster’s report satisfies the
primary purpose of a proof of loss, which is to provide notice to the insurer of the
claim. In making this argument, the Wientjeses attempt to distinguish FEMA’s
September 2005 press release from a FEMA memorandum dated August 31,
2005, which waived the proof-of-loss requirement under some circumstances and
extended the time for filing a proof of loss under others. The Wientjeses admit
that the earlier memo did not contain a complete waiver of the proof-of-loss
requirement. Instead, the August memorandum provided that the homeowners
are to submit a proof of loss when they disagree with an adjuster’s decision:
      In the event a policyholder disagrees with the insurer’s adjustment,
      settlement, or payment of the claim, a policyholder may submit to
      the insurer a proof of loss within one year from the date of the loss.
      The proof of loss must meet the requirements of VII.J.4 of the SFIP
      Dwelling or General Property Form . . . . If the insurer rejects the
      proof of loss in whole or in part, the policyholder may file a lawsuit
      against the insurer within one year of the date of the written denial
      of all or part of the claim . . . .
      The Wientjeses argue that the later press release takes precedence over
the prior FEMA memorandum. Yet the Wientjeses acknowledge that this court
has previously held that the August 2005 FEMA memo did not “render
permissive the requirement to file a proof of loss prior to filing suit.” Marseilles
Homeowners Condo. Ass’n, Inc. v. Fid. Nat’l Ins. Co., 542 F.3d 1053, 1057 (5th
Cir. 2008). Like the memo, the press release states that an adjuster’s report will
satisfy the ordinary proof-of-loss requirement only “where the policyholder
agrees.” The Wientjeses did not agree with American Bankers’s adjustment,
settlement, and payment of their claims. As such, they were required to submit
a timely proof of loss as a prerequisite to filing suit.


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      The Wientjeses next allege that if the proof-of-loss requirement has not
been waived, it deprives them of a meaningful opportunity to contest American
Bankers’s adjustment of their claims. The Wientjeses explain that the August
2005 FEMA memo requires the filing of a proof of loss within one year of the
date of the loss. An insurer could simply spend more than one year adjusting an
insured’s claims, thereby leaving the insured with no avenue to challenge its
adjustment decisions. That is what the Wientjeses claim happened. American
Bankers did not make a final coverage determination until May 9, 2007, more
than one year after the date of loss. That delay allegedly made it impossible to
comply with the one-year proof-of-loss requirement, as they did not know that
coverage for their foundation and exterior plywood sheathing damage would be
denied until more than a year after the loss occurred.
      It is true that the Wientjeses did not receive notice of the final adjustment
of their claims until after the one-year deadline for filing a proof of loss had
passed. Importantly, though, they knew of their disagreement with the payment
of their claims well before that date. The initial adjuster’s report in December
2005 stated that the foundation damage was excluded from coverage under their
flood policy. The Wientjeses admit that the initial payment they received in
December 2005 did not include any amount for foundation repair or the repair
of the exterior plywood sheathing.        Accordingly, by December 2005, the
Wientjeses knew of a disagreement regarding the payment of their claims. They
had ample opportunity to file a proof of loss within the one-year deadline.
      The Wientjeses next argue that application of the one-year proof-of-loss
requirement violates their constitutional rights, including their rights to equal
protection and due process. They argue that FEMA enforces the proof-of-loss
requirement arbitrarily, granting waivers to some, but not others. Such FEMA
conduct treats holders of federally funded flood insurance policies differently
without a rational basis. Moreover, the one-year time limitation for filing a proof

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of loss violates due process by foreclosing judicial review of adjustment decisions
made more than one year after a loss.
      For these fairly bold arguments, the Wientjeses cite no legal authority. We
find none to support these propositions. The few district courts to have reached
similar issues have concluded that the proof-of-loss requirement did not violate
the constitutional rights of the insured. See, e.g., Dupuy v. Fid. Nat’l Prop. &
Cas. Ins. Co., No. 07-4661, 2009 WL 82555, at *3 n.5 (E.D. La. Jan. 12, 2009);
Howell v. State Farm Ins. Cos., 540 F. Supp. 2d 621, 633 (D. Md. 2008);
Schumitzki v. Dir., FEMA, 656 F. Supp. 430, 433 (D.N.J. 1987). The Wientjeses
have not offered anything to convince us to hold otherwise.
      Finally, to the extent that the Wientjeses are arguing that American
Bankers waived the proof-of-loss requirement or that American Bankers or
FEMA should be equitably estopped from enforcing such requirement, their
arguments are foreclosed by a recent decision of this court. See Marseilles
Homeowners Condo. Ass’n, Inc., 542 F.3d 1053.
      We hold that the proof-of-loss requirement applied to the Wientjeses’
claims. That requirement was not met. Consequently, we need not address the
Wientjeses’ arguments with respect to the merits of their coverage dispute.
      The judgment of the district court is AFFIRMED.




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