Dawkins v. Witt

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

HOWARD G. DAWKINS, JR., M.D.; 
ANNETTE DAWKINS,
Plaintiffs-Appellants,
v.
 No. 99-1422
JAMES LEE WITT, Director of the
Federal Emergency Management
Agency,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Fox, Senior District Judge.
(CA-98-124-F3-4)

Argued: March 1, 2000

Decided: February 3, 2003

Before WILKINSON, Chief Judge, and WIDENER and
TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge Widener wrote the opinion, in
which Chief Judge Wilkinson and Judge Traxler concurred.

COUNSEL

ARGUED: Albert Charles Ellis, WARD & SMITH, P.A., Winter-
ville, North Carolina, for Appellants. Jerri Ulrica Dunston, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
2 DAWKINS v. WITT
BRIEF: Teresa DeLoatch Bryant, WARD & SMITH, P.A., Winter-
ville, North Carolina, for Appellants. Janice McKenzie Cole, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

OPINION

WIDENER, Circuit Judge:

Plaintiffs, Howard G. Dawkins, Jr., and Annette Dawkins, appeal
the district court’s order granting summary judgment in favor of
defendant James Lee Witt, the director of the Federal Emergency
Management Agency (FEMA). Dawkins v. Witt, No. 4:98-CV-124-F3
(E.D.N.C. Feb. 26, 1999). The plaintiffs own property insured under
the National Flood Insurance Program that was damaged by Hurri-
cane Fran. The plaintiffs contested FEMA’s refusal to reopen their
claim after FEMA made an initial payment for flood damage to the
property. The district court granted the defendant summary judgment
after determining that the plaintiffs could not recover. Because they
failed to file a proof of loss within 60 days of the occurrence of the
damage, as required by their insurance policy, we affirm.

I.

Because this case is before us on a motion for summary judgment,
we view the facts in the light most favorable to the non-moving party,
the plaintiffs. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Plain-
tiffs own a two-story home elevated above ground by posts on Figure
Eight Island near Wilmington, North Carolina. On September 5,
1996, the plaintiffs’ insured property was damaged as a result of Hur-
ricane Fran. At the time of the hurricane, the plaintiffs’ property was
insured against flood damage through the National Flood Insurance
Program with a policy they had purchased through a local agent, Fick-
ling and Clement Insurance Company (Fickling and Clement). FEMA
oversees and implements the National Flood Insurance Program. See
West Augusta Dev. Corp. v. Giuffrida, 717 F.2d 139, 140 n.1 (4th Cir.
1983) (quoting Meister Bros., Inc. v. Macy, 674 F.2d 1174, 1175 n.1
(7th Cir. 1982)). The plaintiffs’ policy contained several clauses rele-
 DAWKINS v. WITT 3
1
vant in this appeal. First, Article 9, Paragraph J(3) of the policy
required that the plaintiffs file a proof of loss for any claim within 60
days of the flood damage or loss.2 A proof of loss is a document that
provides FEMA with a statement of the amount of the claim and spe-
cific details concerning the loss, its cause, and ownership of the dam-
aged property. FEMA has the option to waive the 60 day requirement
under Article 9, Paragraph J(7), and if it does, the claimant must sign
an adjuster’s report.3 The policy, pursuant to the federal regulations
governing the National Flood Insurance Program, also contained a
provision in Article 9, Paragraph D stating that none of the provisions
of the policy could be waived absent express written consent by the
Federal Insurance Administrator.4 See 44 C.F.R. § 61.13(d). The
plaintiffs had also insured their property against wind damage with a
policy issued by Lloyds of London.

The plaintiffs contacted Fickling and Clement on September 6,
1996 to inform them of the damage from the hurricane. Fickling and
Clement then notified FEMA, who responded with a letter on Sep-
tember 10, 1996 indicating that it had received the notice of claim and
had assigned it to Bellmon Adjusters, Inc. The letter also advised the
plaintiffs that "[y]our policy requires you to submit a proof of loss to
the Flood Center within sixty (60) days of the loss."
1
FEMA advises that the policy issued to the plaintiffs was that which
was in effect at the time of purchase in 1995. See 44 C.F.R., Pt. 61, App.
A(1) (Oct. 1995). The standard flood insurance policy that is presently
in effect pursuant to the current C.F.R. contains terms that may have
been changed, but none of which are material here.
2
"Should a flood loss occur to your insured property, you must: . . .
[w]ithin 60 days after the loss, send us a proof of loss, which is your
statement as to the amount you are claiming under the policy signed and
sworn to by you . . . ."
3
"We may, at our option, waive the requirement for the completion and
filing of a proof of loss in certain cases, in which event you will be
required to sign, and, at our option, swear to an adjuster’s report of the
loss which includes information about your loss and the damages sus-
tained, which is needed by us in order to adjust your claim."
4
"This policy cannot be amended nor can any of its provisions be
waived without the express written consent of the Federal Insurance
Administrator. No action we take under the terms of this policy can con-
stitute a waiver of any of our rights."
4 DAWKINS v. WITT
An adjuster from Bellmon Adjusters, Bob Hughes, met with the
plaintiffs on their property on September 13, 1996. The parties do not
dispute that at that time, Hughes would not acknowledge that the hur-
ricane was accompanied by waves and, therefore, only inspected the
first level of the home for damage. While Hughes informed the plain-
tiffs that they could only make claims for losses that were verified by
a proof of loss, he also told them that with major disasters, FEMA
was not concerned with the 60 day deadline required by the policy
and that it would reopen the claim if the plaintiffs found any further
verifiable flood damage after that time.

Hughes sent an initial proof of loss to the plaintiffs, which they
rejected because they did not believe it was reasonable. Hughes then
sent a second proof of loss to the plaintiffs, which they signed and
returned to FEMA in December 1996. The 60 day period for filing a
proof of loss had expired November 4, 1996. The plaintiffs acknowl-
edged that they sent in the proof of loss well past the 60 day deadline
required by their policy. Despite the late filing, FEMA paid the claim
amount indicated on the second proof of loss of $6965.28 in January
1997.5 The plaintiffs also had an adjuster, C.P. Warren, assess the
home for wind damage pursuant to their policy with Lloyds of Lon-
don.

The plaintiffs then hired a contractor who proceeded to repair the
property beginning in December 1996. The repairs continued until
September 1997. During the repair process on July 16, 1997, the
adjuster from Lloyds of London issued a report explaining that during
his examination of the property, he determined that damage to the
window frames in the upper floors of the home had occurred as a
result of the flood waters twisting and uplifting the home and its
decks. Thus, Lloyds of London would not pay the plaintiffs for those
losses because its policy only covered wind damage.
5
So that there may be no mistake, the proof of loss, which was paid
in full by FEMA, claimed for damages by "FLOOD." The argument here
is about the extent of the flood loss. That is to say, the failure to file a
claim for the damage now sought within the time required by the policy
with the concurring refusal of FEMA to re-open the claim to claim addi-
tional damage claimed for storm surge.
 DAWKINS v. WITT 5
After learning of this additional loss, Fickling and Clement con-
tacted FEMA on July 24, 1997 asking it to reopen the plaintiffs’
claim. FEMA initially refused to reopen the claim on the basis that
the areas the plaintiffs claimed were flood damaged were not covered
by their policy. After this response, the plaintiffs and Fickling and
Clement repeatedly contacted FEMA in an attempt to have the claim
reopened. Finally, on January 21, 1998, FEMA sent a letter to the
plaintiffs indicating that it did not believe that the damage the plain-
tiffs complained of was due to direct physical loss by flood, but advis-
ing the plaintiffs that if they wished to pursue the claim, they should
secure a report from a structural engineer, at their own expense, stat-
ing how the flood waters caused the damage for review by FEMA.
Accordingly, the plaintiffs hired Thomas Harwell, a structural engi-
neer, to assess the damage to the home from the hurricane-induced
flood. Harwell examined the property on March 3, 1998 and deter-
mined that, in his opinion, the flood had indeed caused structural
damage to the home.

On May 16, 1988 a representative from FEMA, Marlin Barnett,
met with the plaintiffs, Harwell, Warren, and an agent from Fickling
and Clement. In a May 28, 1998 letter, Barnett stated his finding that
he could not assess any damages to the house because it had already
been fixed and that he could not understand how Harwell could con-
firm any damage due to flooding for the same reason. Therefore, Bar-
nett stated that he could not justify any payments for damages
repaired before inspection. On June 18, 1998, FEMA sent the plain-
tiffs a final letter denying their claim because the repairs to the prop-
erty had compromised its ability to investigate.

On August 24, 1998, the plaintiffs filed a complaint in the Eastern
District of North Carolina claiming that the defendant breached their
contract of insurance resulting in damages in excess of $10,000 to the
plaintiffs. After filing an answer, the defendant made a motion to dis-
miss or, in the alternative, for summary judgment based on the fact
that the plaintiffs had not filed a proof of loss within the required 60
day period, precluding them from any recovery from the defendant as
a matter of law. At no time prior to the commencement of this suit
did the defendant assert that the plaintiffs were not entitled to cover-
age because they failed to file their proof of loss within the 60 day
period required under the policy.
6 DAWKINS v. WITT
The district court granted the defendant’s motion on February 1,
1999. The court found without merit the plaintiffs’ arguments that the
defendant could not use the 60 day period as a defense under the doc-
trines of waiver and equitable estoppel. The plaintiffs appeal, claim-
ing the district court erred because it should have precluded FEMA
from raising the 60 day limitation as a defense under the doctrines of
waiver and equitable estoppel, because it was impossible for them to
comply with the 60 day requirement, and because the proof of loss
requirements in the policy were ambiguous.

II.

We review a decision granting summary judgment de novo. Shaw,
13 F.3d at 798. A party is entitled to summary judgment only if we
find no genuine issues of material fact and we determine that the
moving party is entitled to judgment as a matter of law. Shaw, 13 F.3d
at 798.

III.

The plaintiffs’ primary argument is that FEMA could not raise as
a defense the plaintiffs’ failure to file their proof of loss within 60
days under the doctrines of waiver and equitable estoppel. We are of
opinion that both of these arguments are without merit.

A.

It is undisputed that FEMA accepted the plaintiffs’ first proof of
loss after the 60 day period expired, that Hughes stated that the 60 day
requirement would not be enforced, that FEMA continued to address
the claim well after the 60 day period expired, and that the Federal
Insurance Administrator did not provide an express written waiver of
the 60 day requirement. Absent an express written waiver, the plain-
tiffs relied on FEMA’s conduct as set forth above as a waiver of the
60 day requirement. However, the plaintiffs’ insurance policy specifi-
cally provides in Article 9, Paragraph D that "[n]o action we take
under the terms of this policy can constitute a waiver of any of our
rights."
 DAWKINS v. WITT 7
The policy did provide two means for FEMA to waive the 60 day
requirement: the general waiver provision requiring express written
consent of the Federal Insurance Administrator of Article 9, Para-
graph D and the specific waiver provision for the 60 day proof of loss
requirement in Article 9, Paragraph J(7). However, the plaintiffs have
produced no express written wavier from the Federal Insurance
Administrator nor any indication that FEMA exercised its option to
waive specifically the 60 day requirement, either through documenta-
tion or an adjuster’s report. Absent such evidence, we are left with the
express terms of the policy, and pursuant to those terms, the above
conduct does not constitute either a general wavier or an exercise of
FEMA’s option to exercise the specific waiver of the 60 day require-
ment. See Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998);
Phelps v. Federal Emergency Management Agency, 785 F.2d 13, 19
(1st Cir. 1986); McCrary v. Federal Emergency Management Agency,
642 F. Supp. 544, 546 (E.D.N.C. 1986).

B.

The plaintiffs argue that FEMA is equitably estopped from raising
the defense that the plaintiffs failed to provide a proof of loss within
the requisite time period. The Supreme Court has consistently denied
efforts by litigants to estop the government from raising defenses
based on claimants’ failures to comply with governmental procedures
due to misinformation from government agents. See Office of Person-
nel Management v. Richmond, 496 U.S. 414, 434 (1990). ("As far as
monetary claims, it is enough to say that this Court has never upheld
an assertion of estoppel against the Government by a claimant seeking
public funds.") (holding that plaintiff who was misinformed about his
qualification to collect disability benefits could not estop government
from collecting overpayments caused by the erroneous advice of a
government employee); Schweiker v. Hansen, 450 U.S. 785, 786
(1981) (holding that government agent’s advice that misinformed
plaintiff that she was not eligible for social security benefits did not
rise to level of affirmative misconduct that might reach a serious
question as to whether the government might be estopped from insist-
ing on compliance with a valid regulation required to receive bene-
fits); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947)
(finding that farmer could not recover under crop insurance on a lost
crop even though the government agency misinformed the farmer that
8 DAWKINS v. WITT
his re-seeded wheat crop was covered by government-provided insur-
ance when, in fact, a statute forbade such coverage). It is true that the
Court has left for another day a decision that the government may
never be estopped. Richmond, 496 U.S. at 423. However, the Court’s
decisions indicate that estoppel may only be justified, if ever, in the
presence of affirmative misconduct by government agents. See INS v.
Hibi, 414 U.S. 5, 8 (1973) (citing Montana v. Kennedy, 366 U.S. 308,
314-15 (1961)); Schweiker, 450 U.S. at 788-89. Thus, in order to
show they even may be entitled to equitably estop FEMA, the plain-
tiffs must not only satisfy the traditional requirements for equitable
estoppel,6 but also they must show affirmative misconduct by FEMA
that exceeds conduct the Court has already deemed acceptable.

The behavior the plaintiffs must rely on in this case to demonstrate
affirmative misconduct consists of the following: Hughes represent-
ing to the plaintiffs that FEMA was not concerned about the 60 day
requirement with major disasters, FEMA accepting the plaintiffs’ ini-
tial proof of loss well after the 60 day deadline, and FEMA proceed-
ing to continue to address their claim after the 60 day deadline. We
agree with the district court that while the plaintiffs may have shown
"unprofessional and misleading conduct by Hughes," this conduct is
no worse than that the Supreme Court has determined does not rise
to a level to justify estoppel against the government.7
6
For purposes of this opinion, we have assumed that the plaintiffs
established the four traditional requirements for estoppel as follows: "(1)
the party to be estopped knew the true facts; (2) the party to be estopped
intended for his conduct to be acted upon or acted in such a way that the
party asserting estoppel had a right to believe that it was intended; (3) the
party claiming estoppel was ignorant of the true facts; and (4) the mis-
conduct was relied upon to the detriment of the parties seeking estoppel."
McCrary, 642 F. Supp. at 547 (citing United States v. 18.16 Acres of
Land, 598 F. Supp. 282, 286 (E.D.N.C. 1984)).
7
We decline to follow the two cases cited by the plaintiffs in which
courts have estopped the government from asserting the defense that
claimants failed to file a proof of loss in the 60 day period. See Meister
Bros., 674 F.2d at 1177; Dempsey v. Director, 549 F. Supp. 1334, 1340-
41 (E.D. Ark. 1982). We find that the Supreme Court’s decisions in this
area determine the outcome of this case.
 DAWKINS v. WITT 9
IV.

The plaintiffs also argue that due to the devastation and circum-
stances surrounding Hurricane Fran it was impossible for them to
comply with the 60 day proof of loss requirement, and therefore, the
district court should not have granted the defendant summary judg-
ment. While we may agree that the circumstances surrounding a
major natural disaster may make it extremely difficult for insured par-
ties to comply with the 60 day time limit, we agree with the district
court that this argument fails. The insurance policy specifically
requires a claimant to file a proof of loss within 60 days to receive
coverage regardless of the circumstances of the claim. As explained
above, FEMA did not waive this requirement. While compiling the
required information in 60 days under stressful circumstances may be
difficult, it is exactly what the policy requires.

V.

Finally, the plaintiffs argue that the provisions in their insurance
policy regarding the proof of loss requirement are ambiguous and that
if we construe the ambiguity in the insured’s favor, the defendant is
not entitled to summary judgment. The plaintiffs contend that the lan-
guage of the policy is ambiguous because in addition to the 60 day
requirement of Article 9, Paragraph J(3), Article 9 in Paragraph J(1)
asks claimants to notify FEMA of the loss in writing "as soon as prac-
ticable" and in Paragraph J(2) requests that claimants separate dam-
aged and undamaged property "[a]s soon as reasonably possible."
Additionally, plaintiffs’ first letter from FEMA, in addition to notify-
ing them that they must file a proof of loss within 60 days, asked the
plaintiffs to submit their claim "as soon as possible." We are of opin-
ion that the language in the policy and in the FEMA letter is not
ambiguous. While the policy and letter request that claimants act as
soon as possible, they also place a 60 day limit on the time claimants
have available to make their claims, absent a waiver.

The order of the district court dismissing the case is accordingly

AFFIRMED.