Michael Torre v. Liberty Mutual Fire Insurance

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 14-2733
___________

MICHAEL S. TORRE; GERALDINE A. TORRE,
Appellants

v.

LIBERTY MUTUAL FIRE INSURANCE COMPANY;
FEDERAL EMERGENCY MANAGEMENT AGENCY
(FEMA)
____________________________________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-13-cv-06665)
District Judge: Honorable Anne E. Thompson
____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)
March 25, 2015

Before: AMBRO, VANASKIE and SLOVITER,
Circuit Judges

(Opinion filed: March 26, 2015)
Michael S. Torre
Geraldine A. Torre
281 Vineyard Road
Huntington Bay, NY 11743

Pro Se Appellants

Keith M. Detweiler, Esq.
Gerald J. Nielsen, Esq.
Nielsen Law Firm
3838 North Causeway Boulevard
Suite 2850
Metairie, LA 70002

Attorney for Appellee
___________

OPINION OF THE COURT
___________

PER CURIAM

Michael S. Torre and Geraldine A. Torre appeal from
the order of the District Court entering summary judgment in
favor of Liberty Mutual Fire Insurance Company
(“Liberty”). We will affirm.

I.
The Torres (husband and wife) own land and a house
at 1234 Ocean Avenue in Mantoloking, New Jersey. They
also hold a National Flood Insurance Program Dwelling Form
Standard Flood Insurance Policy (“SFIP”) issued by Liberty
under the National Flood Insurance Act of 1968. The Act

2
established the National Flood Insurance Program, which “is
underwritten by the United States Treasury in order to
provide flood insurance below actuarial rates.” Suopys v.
Omaha Prop. & Cas., 404 F.3d 805, 807 (3d Cir. 2005). The
terms of the SFIP are prescribed by regulation and set forth at
44 C.F.R. pt. 61, App. A(1). Id. at 807.

The Torres’ property sustained substantial damage
during Hurricane Sandy, and they submitted claims under the
SFIP for that damage to Liberty. This dispute concerns
coverage for the cost of removing storm-generated debris not
owned by the Torres from portions of their land. Liberty
administered a total payment1 to the Torres of $235,751.68,
which included the cost of removing debris from their house.
The Torres sought an additional payment of $15,520 for the
cost of removing sand and other debris deposited on their
land in front of and behind their house.2 Liberty denied that
claim on the ground that the SFIP does not cover it.

1
As Liberty notes, it does not make payments under the SFIP.
Liberty instead merely administers the federal program, and
“[i]t is the Government, not the [insurance] companies, that
pays the claims.” C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co.,
386 F.3d 263, 267 (3d Cir. 2004).
2
The Torres argue that their claim also included the cost of
removing debris from their garage, and they now dispute
Liberty’s assertion that it paid that cost. The Torres have
waived this claim for the reasons explained in note 7 below.
Thus, our discussion will focus solely on the removal of
debris from the Torres’ land outside their house.

3
 The Torres then filed suit against Liberty in New
Jersey state court seeking payment of the $15,520, and
Liberty removed the suit to federal court. The Torres
thereafter filed an amended complaint asserting a claim
against the Federal Emergency Management Agency
(“FEMA”) as well, but they voluntarily withdrew that claim.
The parties ultimately filed motions for summary judgment
after agreeing that there were no material facts in dispute
because the sole issue before the District Court was one of
contractual interpretation. The District Court denied the
Torres’ motion, granted Liberty’s motion, and entered
judgment in Liberty’s favor. The Torres appeal.3

II.
The sole issue on appeal is whether the SFIP covers
expenses for removing debris not owned by the Torres from
their land outside their house. The debris-removal provision
states that “[w]e will pay the expense to remove non-owned
debris that is on or in insured property and debris of insured
property anywhere.” 44 C.F.R. Pt. 61, App. A(1), Art.
III(C)(1)(a) (2009) (emphasis added).4 This appeal turns on
the meaning of the term “insured property.” The Torres argue
that “insured property” means not only the specific structures
and items of property that are insured by the SFIP (such as
their house) but their entire parcel of land. Liberty, by

3
The District Court had jurisdiction under 42 U.S.C. § 4053,
and we have jurisdiction under 28 U.S.C. § 1291. Our review
of the entry of summary judgment is plenary. See Suopys,
404 F.3d at 809.
4
All citations to the SFIP herein are to 44 C.F.R. Pt. 61, App.
A(1).

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contrast, argues that “insured property” means only the
property insured under the SFIP and that the SFIP does not
cover land.

The SFIP does not define the term “insured property,”
so we must interpret that term as it appears in the SFIP’s
debris-removal provision. We appear to be the first Court of
Appeals to do so. Cf. Dickson v. Am. Bankers Ins. Co. of
Fla., 739 F.3d 397, 399, 401 (8th Cir. 2014) (not reaching the
issue). “It is well settled that federal common law governs
the interpretation of the SFIP at issue here.” Linder &
Assocs. v. Aetna Cas. & Sur. Co., 166 F.3d 547, 550 (3d Cir.
1999). Thus, “[w]e utilize standard insurance law principles
to construe the SFIP.” Id. (quotation marks omitted). “Under
these principles, we interpret the SFIP in accordance with its
plain, unambiguous meaning.” Id. If the SFIP is ambiguous
and reasonably “susceptible to two constructions, however,
we will adopt the one more favorable to the insured.” Id.
Having applied these principles, it is clear that Liberty’s
interpretation of “insured property” is the only reasonable one
when viewed in light of the SFIP as a whole.

We begin with the common-sense observation that the
term “insured property” means property that is insured. Not
surprisingly, that is FEMA’s understanding of the term as
well.5 The SFIP specifies in great detail which items of

5
FEMA’s Flood Adjuster’s Claims Manual, which is
“incorporated by reference into the FEMA regulations,”
Suopys, 404 F.3d at 811 (citing 44 C.F.R. § 62.23), explains
with regard to debris removal that “[i]nsured property means
property we insure—i.e., the described building and covered
contents.” FEMA Claims Adjuster Manual V-15 (2010).

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property it covers and which it does not. Article III(A), titled
“Coverage A—Building Property,” provides coverage for
damage to a dwelling and other specified structures as well as
various items of property associated with those structures.
Article III(C), titled “Coverage C—Other Coverages,”
provides coverage for certain other kinds of losses and
includes the debris-removal provision at issue here. (The
SFIP also provides other forms of coverage in Articles III(B)
and III(D), but they are not currently relevant.) Conversely,
Article IV is titled “Property Not Covered” and specifies what
property the SFIP does not insure. Article IV specifies that
“[w]e do not cover . . . “[l]and, land values, lawns, trees,
shrubs, plants, [or] growing crops.” Art. IV(6) (emphasis
added). Article IV also specifies that the SFIP does not
cover, inter alia, “[f]ences, retaining walls, seawalls, [or]
bulkheads,” Art. IV(12), or “[t]hose portions of walks,
walkways, decks, driveways, patios and other surfaces . . .
located outside the perimeter, exterior walls of the insured
building.” Art. IV(9).

In sum, the SFIP provides coverage for certain
structures and other items of property but not for an entire
parcel of land. The entire parcel of land thus cannot
constitute “insured property” because it is not insured by the
SFIP at all. And because the entire parcel of land does not
constitute “insured property,” the provision of the SFIP
requiring Liberty to pay for the removal of non-owned debris
that is “on or in insured property” does not apply to the
expenses the Torres incurred in removing non-owned
debris from their land outside their home. Art. III(C)(1)(a).

The Torres raise essentially four arguments in an effort
to avoid this rather obvious result. We disagree with each.

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First, they argue that the term “property” should be given its
ordinary meaning and that its ordinary meaning includes land.
They further argue that term “insured property” refers to their
land at 1234 Ocean Avenue in its entirety because that is the
property listed on the Declarations Page and thus is the
“property” that is insured. The Declarations Page is indeed
part of the SFIP, see Art. II(B)(10), and the SFIP refers to the
location “shown on the Declarations Page” as the “described
location,” Art. II(B)(11). The SFIP, however, expressly
distinguishes between the “described location” and the
“insured property.” See, e.g., Art. V(A)(2), (3) (providing
that “we do not pay you for . . . [l]oss of access to the insured
property or described location” or “[l]oss of use of the insured
property or described location”) (emphasis added). If the
meaning of “insured property” were coextensive with the
“described location”—i.e., the location “shown on the
Declarations Page”—then there would be no need to
distinguish the two. The SFIP, however, does precisely that.

Second, the Torres argue that the debris-removal
provision cannot be limited to debris removed from a building
because, if it were, it would be contained in the article
specifically governing buildings (i.e., “Coverage A—
Building Property”) instead of the article governing “other
coverages.” In so contending, the Torres misunderstand the
structure of the SFIB, which is organized by type of coverage
rather than type of insured property. Coverage A addresses
the coverage provided for “direct physical loss by or from
flood,” Art. III(A), which is defined as “[l]oss or damage to
insured property, directly caused by a flood. There must be
evidence of physical changes to the property.” Art. II(B)(12).
The cost of removing debris does not constitute that kind of
loss, and it is thus logical that it should be addressed in a

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different article. Moreover, it is conceivable that non-owned
debris could be in or on property insured under Coverage B
(personal property) but not Coverage A, particularly if the
debris is found in or on personal property that is in turn inside
a fully constructed “building” that is neither a “dwelling” nor
a “garage.” (This result follows from the fact that Article IV
exempts from coverage personal property not in a building,
but Coverage A extends only to dwellings, garages, and
buildings under construction. See Art. IV(1), Art. III(A)(1),
(3), (5).)

Third, the Torres argue that the debris-removal
provision would be superfluous if limited to the removal of
non-owned debris from a building because coverage for such
removal already is provided by the “clean-up” provision of
Article III(A)(8)(b). But Article III(A)(8)(b) only covers
clean-up associated with ‘[i]tems of property in a building
enclosure below the lowest elevated floor of [certain
buildings in enumerated places], or in a basement.’ Art.
III(A)(8). The SFIP does not define “clean-up,” but whatever
its precise meaning it refers only to clean-up associated with
specific items of property contained in a specific area of a
building. Thus, the provision does not cover the removal of
non-owned debris from a building as a whole. Such removal
is covered instead by the debris-removal provision at issue
here.

Finally, the Torres assert that interpreting “insured
property” to mean both buildings and the land is consistent
with the purpose of the National Flood Insurance Act of 1968
to “protect real property which includes the land and any
structure erected on the land.” (Appellants’ Br. at 13) (citing
42 U.S.C. § 4011(a).) The Torres have not developed any

8
meaningful argument in this regard, but their assertion cannot
be squared with the fact that the SFIP has long provided that
it does not cover land. See Art. IV(6).6 There is no reason to
believe that the provision covering the removal of non-owned
debris from “insured property” covers the removal of debris
from the land when the SFIP expressly disclaims coverage of
the land itself.7

6
The Torres have not argued that the SFIP promulgated by
FEMA is inconsistent in this respect with any statute enacted
by Congress. We thus do not address that issue, though in so
noting we do not suggest that there may be any viable
argument in that regard.
7
In addition to their arguments regarding the SFIP, the Torres
argue that Liberty failed to pay the cost of removing debris
from their garage and that their garage is “insured property”
because it is covered by Coverage A. In that regard, they
dispute Liberty’s assertion that it paid $5,179.34 for that
purpose and argue that the District Court should have decided
what portion of their claim concerns debris removed from the
garage. As Liberty argues, the Torres have waived this claim.
They concede in their brief that “both parties agreed [before
the District Court] that there was no question of fact to be
resolved.” (Appellants’ Br. at 4.) Indeed, at the outset of
their certification in opposition to Liberty’s motion for
summary judgment, the Torres argued that “[i]t is clear that
the sole issue before the Court is the meaning of” the debris-
removal provision. (ECF No. 18 at 1 ¶ 2.) Moreover, after
Liberty asserted in its statement of uncontested facts that it
paid for “removal of debris from the garage” (ECF No. 17-2 ¶
10) and provided evidentiary support (ECF No. 17-4 at 4 ¶
13), the Torres presented no evidence to the contrary and did

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 In sum, we conclude that the term “insured property”
clearly and unambiguously means property that is insured
under the SFIP, that land is not insured under the SFIP, and
that the SFIP thus does not cover costs the Torres incurred in
removing debris not owned by them from their land outside
their home.8

not otherwise specifically dispute this point (ECF No. 18 at 3
¶¶ 7 & 8).
8
Our conclusion is supported by the only decision that the
parties have cited in which another court has addressed a
similar claim. See Keating v. State Farm Fire & Cas. Co.,
No. 01-5057, 2002 WL 32348340 (E.D. Pa. Mar. 15, 2002).
In that case, the insureds sought coverage under a former
version of the SFIP for, inter alia, costs to facilitate the
removal of “all debris due to flooding waters” on their land.
Id. at *1. The Court dismissed their complaint and concluded
that: “When read in its entire context . . . the terms of the
contract are clear and unambiguous that coverage is for the
building only, and that [non-owned] debris removal is
covered only if the debris is in or on the building.” Id. at *3.
The debris-removal provision at issue here is worded
differently, but the differences are not material. See National
Flood Insurance Program (NFIP); Insurance Coverage and
Rates, 65 Fed. Reg. 60758, 60760 (Oct. 12, 2000) (noting that
linguistic revisions “simplif[ied] the debris removal
provisions”). We have located only one other decision that
addresses the debris-removal provision. See Dickson v. Am.
Bankers Ins. Co. of Fla., No. 1:12-cv-022, 2013 U.S. Dist.
LEXIS 183163 (D.N.D. Mar. 18, 2013), rev’d on other
grounds, 739 F.3d 397 (8th Cir. 2014). In that case, the Court
concluded that the provision does indeed cover the removal of

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 III.
For the foregoing reasons, we will affirm the judgment
of the District Court. The Torres’ motion to strike Liberty’s
brief for untimely service is denied.

non-owned debris from the land. See id. at *18-22. The
Court in Dickson did not address Keating, however, and it
provided very little reasoning and no legal support for its
conclusion. For these reasons and those explained above,
Dickson is not persuasive on this point.

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