     Case: 18-10943      Document: 00514871855         Page: 1    Date Filed: 03/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                    No. 18-10943
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                            March 13, 2019
                                                                               Lyle W. Cayce
ANDRE YANEZ,                                                                        Clerk


              Plaintiff - Appellant

v.

AMERICAN STRATEGIC INSURANCE CORPORATION; E-INS., L.L.C.;
FKS INSURANCE SERVICES, L.L.C.,

              Defendants - Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:17-CV-788


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Andre Yanez failed to submit a proof-of-loss form for additional
insurance payments as required by the policy. The district court therefore
granted the insurer’s motion for summary judgment and dismissed this breach
of contract case. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-10943      Document: 00514871855        Page: 2     Date Filed: 03/13/2019



                                     No. 18-10943
                                            I.
         A heavy storm passed Fort Worth, Texas in June 2016 and flooded
Plaintiff Andre Yanez’s property. American Strategic Insurance Corporation
(“ASIC”) insured the property through the Standard Flood Insurance Policy
(“SFIP”) program. 1 Yanez filed a claim with ASIC for damages caused by the
flood. ASIC then assigned Yanez’s claim to an adjusting firm, FKS Insurance
Services (“FKS”). As part of FKS’s claim process, Yanez completed a flood field
survey, where he stated that he had a prior flood loss claim on the property
from 2015. 2 After FKS’s evaluation and consistent with Yanez’s proof of loss,
ASIC paid Yanez $1,315.20 for property damages caused by the June 2016
flood.
         Yanez disagreed with ASIC and FKS’s assessment but provided no proof
of loss for the additional sum claimed; ASIC denied this additional claim
request.     After losing an administrative appeal, 3 Yanez filed the instant
lawsuit against ASIC and FKS for breach of contract and breach of the duty of
good faith and fair dealing. 4 On Defendants’ motion to dismiss, the district
court held that federal law barred Yanez’s breach of good faith and fair dealing
claim. And on Defendants’ motion for summary judgment, the district court
found that Yanez failed to submit the required proof-of-loss form for additional
benefits. The district court therefore dismissed Yanez’s suit.




         SFIP is part of the National Flood Insurance Program, which is administered by the
         1

Federal Emergency Management Agency (“FEMA”). SFIP may be issued through private
insurers, like ASIC, who serve as fiscal agents of the United States. See Gowland v. Aetna,
143 F.3d 951, 953 (5th Cir. 1998) (citing 42 U.S.C. § 4071).
       2 The prior flood occurred on June 24, 2014.
       3 FEMA denied Plaintiff’s administrative appeal because Yanez did not prove that he

made repairs after the 2014 flood and before the 2016 flood.
       4 Yanez also named E-INS as a defendant. E-INS is a vendor of the National Flood

Insurance Program and ASIC’s technology and processing partner.
                                            2
     Case: 18-10943       Document: 00514871855           Page: 3    Date Filed: 03/13/2019



                                       No. 18-10943
                                              II.
       Yanez now appeals only the district court’s grant of summary judgment
concerning his breach of contract claim. We review this issue de novo, applying
the same standard as the district court. 5 Summary judgment is appropriate if
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” 6
       We have made clear that “the provisions of an insurance policy issued
pursuant to a federal program must be strictly construed and enforced.” 7 To
receive additional benefits under the policy, Plaintiff was required to sign and
submit a supplemental proof-of-loss form within 60 days of the flood. 8 Here, it
is undisputed that Yanez never sent Defendants this additional proof of loss.
Though Yanez argues that his flood field survey contained all the relevant
information, even if true, this remains insufficient: At base, he never submitted
the required signed proof of loss for additional benefits. 9                  Yanez’s other
argument—that ASIC allegedly waived his 60-day submission period—is also
meritless. ASIC, a private company, cannot legally waive federal regulations
promulgated by FEMA. 10 Accordingly, we affirm the district court’s summary
judgment dismissal.
                                       *       *      *
       AFFIRMED.


       5  Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015).
       6  FED. R. CIV. P. 56(a).
        7 Gowland, 143 F.3d at 954; Ferraro, 796 F.3d at 534.
        8 See 44 C.F.R. § 61, app. A(1) art. VII(J); Ferraro, 796 F.3d at 532.
        9 See Ferraro, 796 F.3d at 534 (“An insured’s failure to strictly comply with the SFIP’s

provisions—including the proof-of-loss requirement—relieves the federal insurer’s obligation
to pay the non-compliant claim.”); Evanojf v. Standard Fire Ins. Co., 534 F.3d 516, 521 (6th
Cir. 2008) (“Federal courts have consistently held that the proof of loss requirement is to be
strictly enforced.”).
        10 44 C.F.R. § 61.13(d), SFIP art. VII(D) (“This policy cannot be changed nor can any

of its provisions be waived without the express written consent of the Federal Insurance
Administrator.”). Plaintiff failed to produce evidence of any waiver from the Administrator.
                                               3
