          United States Court of Appeals
                      For the First Circuit


No. 14-1370

                        JACOB MATUSEVICH,

                      Plaintiff, Appellant,

                                v.

               MIDDLESEX MUTUAL ASSURANCE COMPANY,

                       Defendant, Appellee,

               FEDERAL EMERGENCY MANAGEMENT AGENCY,

                            Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. George A. O'Toole, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     Seth H. Hochbaum, with whom Regnante, Sterio & Osborne LLP,
was on brief, for appellant.
     Joseph J. Aguda, Jr., with whom Gerald J. Nielsen, Nielsen
Carter & Treas, LLC, David W. Zizik, and Zizik, Powers, O'Connell,
Spaulding & LaMontagne PC, were on brief, for appellee.



                          April 1, 2015
           TORRUELLA, Circuit Judge. This case arises from Appellee

Middlesex Mutual Assurance Company's ("Middlesex Mutual") denial of

Appellant Jacob Matusevich's flood loss claim following a flood

that damaged the lower level of his home and numerous belongings.

After the parties filed cross motions for summary judgment, the

district   court    granted   Middlesex   Mutual's   motion   and   denied

Matusevich's.      Matusevich now appeals, arguing that the district

court erred in holding that the lower level of his home qualified

as a "basement" under the Standard Flood Insurance Policy ("SFIP")

issued by Middlesex Mutual and authorized by the Federal Emergency

Management Agency ("FEMA") as part of the National Flood Insurance

Program ("NFIP").       Finding no error with the district court's

interpretation of the SFIP, we affirm.

                              I.   Background

A.   The National Flood Insurance Program

           In the 1960s, there was a concern that, due to the high

costs and damages associated with floods, private insurers were not

providing adequate flood insurance in many areas prone to flooding.

See 42 U.S.C. § 4001(b)(1).         To address this growing problem,

Congress enacted the National Flood Insurance Act of 1968 ("NFIA").

See id. §§ 4001-4131.     The NFIA, in turn, created the NFIP, which

is administered by FEMA and backed by the federal treasury.            Id.

§§ 4011(a), 4017(a).      The purpose of the NFIP is, in part, to

remedy the lack of flood insurance in flood-prone areas by offering


                                    -2-
subsidized flood insurance, thus increasing its availability.         Id.

§ 4001(b).     The NFIP is also intended to change building practices

in order to deter future flood risk -- and thus hopefully reduce

future losses to life and property due to floods -- through the

adoption of floodplain management and mitigation initiatives.         Id.

§§ 4001(e), 4002(b)(3); 44 C.F.R. § 60.1.

             The NFIP is administered by FEMA, which, in turn, is

authorized to "prescribe regulations establishing the general

method or methods by which proved and approved claims for losses

may be adjusted and paid."        42 U.S.C. § 4019.       Accordingly, in

1983,   FEMA   created   the   Write-Your-Own   ("WYO")   program,   which

allowed private insurance companies, such as Middlesex Mutual, to

issue flood insurance policies as part of the NFIP.            44 C.F.R.

§§ 62.23-24.    Under the WYO program, the companies are essentially

administrators of the federal program who "act as 'fiscal agents of

the United States'"; they are not general agents.          McGair v. Am.

Bankers Ins. Co. of Fla., 693 F.3d 94, 96 (1st Cir. 2012) (quoting

Palmieri v. Allstate Ins. Co., 445 F.3d 179, 183-84 (2d Cir.

2006)).   Indeed, "[i]t is the Government, not the companies, that

pays the claims."     Id. (quoting Palmieri, 445 F.3d at 183-84).

             Private insurance companies participating in the WYO

program are required to issue SFIPs containing the terms and

conditions prescribed by FEMA and "subject to interpretation by the

Federal Insurance Administrator as to scope of coverage." 44 C.F.R


                                    -3-
§ 61.4; see also id. pt. 61, App. A(1) (providing the SFIP).                   The

regulations provide that "no provision of the [policy] shall be

altered, varied, or waived other than by the express written

consent of the Federal Insurance Administrator."               Id. § 61.13(d).

B.   Matusevich's Claim

           The parties do not dispute the material facts.                    Since

1992,   Matusevich   has   owned   a    two-level    house     in    Swampscott,

Massachusetts.    The floor of the lower level, which consists of

several finished rooms, is subgrade on three sides.                  The fourth

side of the lower level is located at the rear of the house and

contains a doorway which directly opens out into a backyard.                   The

backyard contains an in-ground swimming pool (built by the prior

owners in 1977) surrounded by a concrete apron which slopes down

from the edge of the pool to the rear of the house.                 Though there

are neither steps nor a ramp, one must step up slightly to exit the

house onto the concrete apron.

           In   November   2008,   Matusevich       obtained    an    SFIP    from

Middlesex Mutual (the "Policy").         The Policy afforded coverage for

"direct physical loss by or from flood to [Matusevich's] insured

property" so long as Matusevich: (1) "paid the correct premium";

(2) "compl[ied] with all terms and conditions of the policy"; and

(3) "furnished accurate information and statements."                 The Policy




                                       -4-
excluded coverage1 for damage occurring in a "basement," which the

Policy defined as "[a]ny area of the building, including any sunken

room or sunken portion of a room, having its floor below ground

level (subgrade) on all sides." The Policy's term was for one year

but was renewed for successive one-year terms in November 2009 and

November 2010.   Throughout the three years of coverage, Matusevich

paid his premiums on time and in full.

          On October 4, 2011, Swampscott was hit with torrential

rain and flash flooding.   Between thirty-nine and fifty inches of

water flooded the lower level of Matusevich's home, causing damage

to the lower level and its contents.     Matusevich filed two flood

loss claims to Colonial Claims Corp. -- the adjuster retained by

Middlesex Mutual -- in the amounts of $12,159.82 and $136,588.19.

Middlesex Mutual paid the smaller claim but rejected the larger

claim because it concluded that the lower level of his home was a

"basement" under the Policy.2   Matusevich appealed the decision to




1
   The Policy does provide limited coverage for a small number of
enumerated items even if the item is located in a basement. These
items include certain fixtures (e.g., central air conditioners,
furnaces, insulation, and water pumps) and personal property (e.g.,
major appliances like washers, dryers, and freezers).
2
  The smaller claim was submitted "strictly as an advance Partial
Proof of Loss for undisputed amounts owed."        According to a
November 29, 2011, letter from Middlesex Mutual to Matusevich,
Middlesex Mutual was denying the larger claim due to the basement
exclusion but was paying the smaller claim because some of the
damage was to items specifically enumerated in the Policy as being
covered regardless of location. See supra note 1.

                                -5-
FEMA's    Federal   Insurance   Administrator,   but   the   decision   was

upheld.

            Following this denial, Matusevich filed suit in the

district court. As part of discovery, the parties' representatives

inspected Matusevich's home and took field measurements. The floor

of the lower level of the house was found to be 3.49" higher than

the soil/ground underneath the concrete apron. The concrete apron,

meanwhile, is 4.25" thick, so the lower level of the house was

found to be 0.76" lower than the surface of the concrete apron.         As

a result, if the soil/ground underneath the concrete apron is the

proper measuring point for determining if the fourth side of the

lower level is "below ground level (subgrade)," then all four sides

of the lower level are not "below ground level (subgrade)," the

lower level is not a "basement," and the damage caused by the flood

is covered under the Policy.        If, however, the proper measuring

point is the top of the concrete apron, then all four sides of the

lower level are "below ground level (subgrade)," the lower level is

a "basement," and the damage from the flood is excluded under the

Policy.

            Given these stipulated measurements, the parties filed

cross motions for summary judgment.      The district court concluded

that the proper measuring point is the top of the concrete apron,

and therefore the lower level of Matusevich's home qualifies as a

"basement" under the Policy.         Accordingly, the district court


                                   -6-
granted Middlesex Mutual's motion and denied Matusevich's motion.

Matusevich timely appealed.

                             II.   Discussion

A.   Standard of Review

           We review a district court's grant or denial of summary

judgment de novo.      See DeCosta v. Allstate Ins. Co., 730 F.3d 76,

81 (1st Cir. 2013); McGair, 693 F.3d at 99.          "Summary judgment is

warranted where 'there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.'"

McGair, 693 F.3d at 99 (quoting Fed. R. Civ. P. 56(a)).           Where, as

here, there are cross motions for summary judgment, we evaluate

each motion independently and determine "whether either of the

parties deserves judgment as a matter of law on facts that are not

disputed."      Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170

(1st Cir. 2004) (quoting Wightman v. Springfield Terminal Ry. Co.,

100 F.3d 228, 230 (1st Cir. 1996)) (internal quotation marks

omitted). Because this is a dispute over the coverage of insurance

policies under the NFIP, federal common law controls.                   Atlas

Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir. 1984).

B. The Lower Level of Matusevich's Home Is a "Basement"

           In    the   insurance   context,   if   the   facts   upon   which

liability is claimed or denied are undisputed, then "the existence

or amount of liability depends solely upon a construction of the

policy, [and] the question presented is one of law for the court to


                                    -7-
decide."    Id. at 134.     That is the precise scenario currently

before us: the parties do not dispute that the fourth side of the

lower level of Matusevich's home is 0.76" lower than the surface of

the concrete apron and 3.49" higher than the soil/ground underneath

it.   Rather, the debate is over which measurement is applicable in

deciding   whether   this   fourth    side   is    "below   ground   level

(subgrade)," and thus whether the lower level falls under the

Policy's basement exclusion.         After careful consideration, we

conclude that the proper measuring point is the surface of the

concrete apron.

           The Policy defines a "basement" as "[a]ny area of the

building, including any sunken room or sunken portion of a room,

having its floor below ground level (subgrade) on all sides."          As

the Third Circuit succinctly stated in Linder & Associates, Inc. v.

Aetna Casualty & Surety Co.,

           [c]overage under a flood insurance policy is
           predicated upon the occurrence of a flood.
           There cannot be a flood unless water rises
           above and flows over the existing ground
           level.   It only makes sense, therefore, to
           equate 'ground level' in the flood insurance
           policy as the ground level that was actually
           flooded . . . .

166 F.3d 547, 551 (3d Cir. 1999).      We agree.    Here, the water rose

over the concrete apron, flowed down the slope of the apron towards

Matusevich's home, and dropped an additional 0.76" into the lower

level where it pooled.



                                 -8-
           Moreover, in order to exit the lower level of the house

and reach the outside, one must step up.   "If a person must step up

when exiting the lower level to the outside, the lower level is

below ground level and, thus, is a basement."   Linder, 166 F.3d at

550.   It is irrelevant that the step is only 0.76".   Claims under

the NFIP are directly charged to the U.S. Treasury, and as such the

terms of the Policy (as with any SFIP) must be strictly construed

and enforced.   DeCosta, 730 F.3d at 83; McGair, 693 F.3d at 100

(quoting Jacobson v. Metro. Prop. & Cas. Ins. Co., 672 F.3d 171,

175 (2d Cir. 2012)).   The policy draws a line at any step up, not

at some arbitrary height.   See King v. Casa Grande Condo. Ass'n,

Inc., 416 F. App'x 363, 368 (5th Cir. 2011) ("Courts that have

applied the SFIP's basement provision have held that the clear

language of the provision establishes that property at any depth

below ground level on all sides is a basement as defined by the

SFIP."); Linder, 166 F.3d at 550 ("This is true even if one must

step up only an inch when going outside."); Nelson v. Becton, 929

F.2d 1287, 1289 (8th Cir. 1991) ("The extent to which [properties

are] subgrade, whether 6, 8, or 40 inches, is immaterial under the

policy.   The only question is whether they [are] subgrade or at

ground level.").

           Still, Matusevich asks us to ignore the fact that one

steps up and out directly onto the concrete apron, and to instead

compare the elevation of the lower level to the inaccessible soil


                                -9-
underneath.   Such an approach would belie common sense.   See VFC

Partners 26, LLC v. Cadlerocks Centennial Drive, LLC, 735 F.3d 25,

31 (1st Cir. 2013) ("'Common sense is as much a part of contract

interpretation as is the dictionary or the arsenal of cannons

[sic].'" (alteration in original) (quoting Bukuras v. Mueller Grp.,

LLC, 592 F.3d 255, 262 (1st Cir. 2010))); Atlas Pallet, Inc., 725

F.2d at 134 (noting that insurance policies are nothing but

contracts).   It is the current elevation adjacent to the structure

that is the relevant measuring point, not some arbitrary baseline

which has no effect on current flood risks. Indeed, of the handful

of cases nationwide addressing the basement exclusion, not one

makes the distinction Matusevich argues for.   See, e.g., King, 416

F. App'x at 368 (holding that a unit flooded after Hurricane

Katrina was a basement for purposes of the SFIP because the unit's

"elevation is 2.6 feet, while the lowest adjacent grade is 4.4

feet.   Thus . . . [the] floor is at least 1.8 feet lower than the

lowest elevation adjacent to the building, and therefore, below

ground level on all sides."); Linder, 166 F.3d at 550-51 (finding

the basement exclusion applied and that "ground level" was the

elevation of the built-up alley adjacent to the building and not

the soil at the time of construction);3 Uddoh v. Selective Ins.


3
   Matusevich attempts to distinguish Linder by arguing that the
question in Linder was "when" to measure -- either at the time of
the flood or at the time of construction -- whereas the question
here is "what" to measure -- either the soil or the architectural
figure built on top. This argument is unpersuasive. Though the

                               -10-
Co., Civ. No. 2:10-cv-01804(WJM), 2012 WL 2979052, at *4 (D.N.J.

July 20, 2012) (finding that the lower level of plaintiff's

building was below ground level because "the lower level of his

building was 8 inches below the actual street level at the time of

the floods" (emphasis added) (internal quotation marks omitted));

TAF, L.L.C. v. Hartford Fire Ins. Co., 549 F. Supp. 2d 1282, 1287-

88 (D. Colo. 2008) (finding the building subgrade because "in order

to exit the lower floor, a person would walk out the door onto the

landing, then traverse eight to ten steps across an excavated

landing, and then walk up the eight-step stairway to access the

natural grade or street level" (emphasis added)); Unger v. Liberty

Mut. Ins. Co., 849 F. Supp. 839, 841, 846 (E.D.N.Y. 1994) (finding

the lower level of plaintiff's home to not be a basement because

one had to step down from the lower level to the driveway adjacent

to the door).

          Here, the concrete apron is directly adjacent to the

lower level of Matusevich's home, and thus it is the relevant

"ground level" elevation for determining whether the lower level is

a "basement."   Because the floor of the fourth side of the lower

level is 0.76" lower than the concrete apron, all four sides of




Linder court framed the issue in terms of timing, this was just
another way of asking the same question: whether to measure from
the soil or from the crushed limestone artificially added on top of
it.

                               -11-
Matusevich's      lower    level   are      below   ground,    and     it   therefore

constitutes a "basement" under the SFIP.

            Besides qualifying as a "basement" under a plain and

commonsense       understanding       of    the    basement    exclusion,      policy

rationales behind the NFIP also support a finding that Matusevich's

lower level is a "basement" under the Policy.                 As noted above, one

purpose of the NFIP is to change building practices to deter future

flood risk.        See 42 U.S.C. §§ 4001(e), 4002(b)(3); 44 C.F.R.

§ 60.1.     When Matusevich's home was first built, it was 3.49"

higher than the adjacent ground level.                After the in-ground pool

and concrete apron were built in 1977, however, the floor of

Matusevich's lower level was 0.76" below the adjacent ground level.

Thus, Matusevich's lower level is at a greater risk for flood

damage now, after the installation of the pool and concrete apron,

than   it   was    when    it   was    initially      built.      The       fact   that

Matusevich's      yard    (including       the    concrete    apron)    slopes     down

towards the lower level of his home only increases this risk;

indeed, there is a drain just outside the entrance to the lower

level for excess water flow.           Interpreting the basement exclusion

to not encompass Matusevich's lower level could encourage similar

building practices in future constructions, which is exactly what

the NFIP was designed to deter.

            Finally, in a last ditch effort to save his claim,

Matusevich invokes the doctrine of reasonable expectations and


                                           -12-
argues that his reasonable expectation as to the meaning of "ground

level" should control to the extent of his Policy's coverage, or at

the very least create an issue of fact to defeat summary judgment.

In support of this argument, Matusevich points to three supposed

facts: (1) that the common interpretation of the terms "ground

level" and "grade" means "lawn, soil or undisturbed ground" and not

"patios, walkways, driveways or concrete aprons"; (2) that the

physical characteristics of Matusevich's lower level indicate that

it   is   not    a   basement;   and   (3)   that   a   Middlesex   Mutual

representative told him the lower level of his home was not a

basement.       None create a reasonable expectation that his lower

level was not a basement.4

            Regarding his first point, we have already rejected

Matusevich's "common interpretation" of ground level and grade, as

have numerous other courts when faced with similar facts, all of

which made no distinction between lawn, soil, or other undisturbed


4
   The First Circuit has yet to rule on whether the reasonable
expectations doctrine is applicable in NFIP litigation. Because we
find that none of Matusevich's arguments create a reasonable
expectation even if the doctrine were applicable, we decline to
decide the issue.     We note, however, that at least two other
circuits have refused to adopt the doctrine in NFIP litigation.
See C.E.R. 1998, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d 263, 270
(3d Cir. 2004) ("In the realm of private insurance, common law
doctrines (such as 'reasonable expectations,' 'notice/prejudice,'
and 'substantial compliance') govern the evaluation of claims. By
contrast, a WYO insurer must strictly follow the claims processing
standards set out by the federal Government."); Becton, 929 F.2d at
1291 (explaining that applying the doctrine of reasonable
expectations would "frustrate [the] specific objective[]" of
creating a unified nationwide flood insurance program).

                                   -13-
ground and patios, walkways, or driveways. See Linder, 166 F.3d at

550-51 (finding "ground level" to be the elevation of the built-up

limestone alley); Uddoh, 2012 WL 2979052, at *4 (referring to the

"actual street level" as ground level); Unger, 849 F. Supp. at 846

(equating the driveway adjacent to the lower level door with the

ground level).

              We also reject Matusevich's second argument that the

physical characteristics of the lower level indicate that it is not

a "basement."        The only requirement for being a "basement" under

the SFIP is that "[a]ny area of the building, including any sunken

room or sunken portion of a room, [have] its floor below ground

level (subgrade) on all sides."             44 C.F.R pt. 61, App. A(1).           All

other features of the room are irrelevant.                 Moreover, Matusevich

himself   had       notice   that   the     lower     level   was   considered      a

"basement."         His SFIP Application explicitly stated under the

"Building Type" heading that the property was "(Including basement

enclosure) Two Floors."          (Emphasis added).       Similarly, each of the

three Flood Policy Declarations that Matusevich received (one in

2008,   one    in    2009,   and    one    in    2010)   included    a    "Building

Description" describing the property as a "Single Family, Two

Floors"   with      either   a   "Basement       or   Enclosure"    (in   2008)    or

"Finished Basement/Enclosure" (in 2009 and 2010). (Emphasis added).

Matusevich never objected to these characterizations.




                                          -14-
             Matusevich's last argument is that a representative of

Middlesex Mutual told him and his wife that the lower level was not

a "basement." Even accepting this statement to be true (as we must

in the summary judgment context), it was not reasonable for

Matusevich    to    rely   on   it.       First,   because    this    is    federal

insurance, regulated by federal law and paid out of the federal

coffers,     "the   person      seeking    those    funds    is    obligated     to

familiarize himself with the legal requirements for receipt of such

funds."    McGair, 693 F.3d at 100 (quoting Jacobson, 672 F.3d at

175)   (internal      quotation       marks    omitted).          This     includes

understanding that a "basement" is defined under the Policy as any

room with all four sides of its floor below ground level.                   Second,

the regulations administering the NFIP provide that "no provision

of the [policy] shall be altered, varied, or waived other than by

the    express      written      consent      of   the      Federal      Insurance

Administrator." 44 C.F.R § 61.13(d); see also DeCosta, 730 F.3d at

87 (quoting Jacobson, 672 F.3d at 175).              Thus, unlike a private

insurance contract where an agent can alter or waive a term of the

agreement, even if Matusevich did interpret this statement as an

alteration or waiver of his Policy, the alteration or waiver was

unenforceable.      We have "previously enforced the written waiver

requirement, noting that the SFIP 'explicitly preclude[s] oral

waiver or waiver by conduct,'" DeCosta, 730 F.3d at 87 (alteration




                                       -15-
in original) (quoting Phelps v. FEMA, 785 F.2d 13, 19 (1st Cir.

1986)), and we see no reason to divert from that practice here.

                            III.   Conclusion

          We agree with both Middlesex Mutual and the district

court that the lower level of Matusevich's home qualifies as a

"basement"   under    the    Policy,      and   thus   Middlesex   Mutual

appropriately denied his claim of loss for damages sustained during

the October 4, 2011, flood.         Accordingly, the district court

properly granted Middlesex Mutual's motion for summary judgment and

denied Matusevich's motion.

          AFFIRMED.




                                   -16-
