[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 8, 2005
No. 04-12509
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-21452-CV-JAL
KENZY LUCIEN,
Plaintiff-Appellant,
versus
US SECURITY INSURANCE
CORPORATION,
Defendant-Appellee,
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Kenzy Lucien appeals pro se the district court’s grant of defendant US
Security’s motion for judgment on his complaint alleging breach of contract under
the National Flood Insurance Act (“NFIA”). The issue on appeal is whether the
district court erred when it granted Security’s motion, due to Lucien’s undisputed
failure to provide a sworn proof of loss within 60 days of the date the damage was
incurred. Lucien contends that because US Security did not send an adjuster to his
property for more than 90 days after he notified them of the flood, they are
estopped from asserting that he waived any objections to settlement amounts
because he failed to adhere to the policy’s 60 day filing period.
In reviewing a district court’s grant of a motion for judgment on partial
findings pursuant to Fed.R.Civ.P. 52(c), we review the district court’s legal
conclusions de novo and its findings of fact for clear error. See Sanz v. US Sec.
Ins. Co., 328 F.3d 1314, 1317 n.5 (11th Cir. 2003).
In Federal Crop Ins. Corp. v. Merrill, 332 US 380, 384-85, 68 S.Ct. 1, 92
L.Ed. 10 (1947), the Supreme Court held that an insured is required to
unwaveringly adhere to the rules and regulations associated with a federal
insurance policy. Id. Following the Supreme Court’s mandate, several circuit
courts interpreted an insured’s failure to provide a proof of loss form within the
required 60 days as a bar to recovery. See, e.g., Dawkins v. Witt, 318 F.3d 606
(4th Cir. 2003); Mancini v. Redland Ins. Co., 248 F.3d 729 (8th Cir. 2001); Flick v.
2
Liberty Mut. Fire Ins. Co., 205 F.3d 386 (9th Cir. 2000); Gowland v. Aetna, 143
F.3d 951 (5th Cir. 1998); Phelps v. Fed. Emergency Mgmt. Agency, 785 F.2d 13
(1st Cir. 1986). In Sanz, we followed the other circuits’ conclusions, also holding
that an insured’s failure to adhere to the proof of loss requirement barred recovery.
See Sanz, 382 F.3d at 1318.
In Sanz, the homeowner never filed a proof of loss with US Security,
although he did consistently comply with the adjuster’s and engineers’ instructions
to get an estimate for the amount of damage caused by the flood, which he
forwarded to US Security. Id. at 1317. Sometime thereafter, US Security denied
his claim. Id. In joining other circuits in holding that failure to file a proof of loss
form in a timely fashion barred any type of recovery, we noted that it was
undisputed that Sanz neither filed a proof of loss form at any time, nor did he
submit a waiver from the Federal Insurance Administrator. Id. at 1319.
In response to Sanz’s estoppel argument, we noted that while the Supreme
Court has not yet announced a per se rule barring individuals from asserting
estoppel claims against the United States government, it has concluded that such
claims are “warranted only if affirmative and egregious misconduct by government
agents exists.” Id. at 1319-20. Viewing the facts of Sanz’s case through the prism
of “affirmative and egregious misconduct,” we held that US Security’s failure to
3
inform Sanz of the proof of loss requirement was an insufficient ground for
estoppel, as were alleged assurances to Sanz “that he had filled out all the
necessary paperwork and that Security would ‘take care’ of his claim.” Id. at 1320.
Because the Supreme Court has unequivocally held that a failure to adhere to
the terms of a federal insurance bars recovery, and because we have interpreted
that holding to include filing a proof of loss form beyond the 60 days following a
flood as such a failure, we conclude that the district court did not err in granting
US Security’s motion for judgment on partial findings. Moreover, the district
court did not err in rejecting Lucien’s estoppel claim, as none of the evidence
showed any behavior on the part of US Security that was “aggravated and
egregious.” Accordingly, the district court’s judgment is affirmed.
AFFIRMED.
4