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Surfsand Resort, LLC v. Nationwide Mutual Fire Insurance Co.

United States District Court, D. Oregon

October 16, 2017

SURFSAND RESORT, LLC, an Oregon limited liability company, Plaintiff,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, an Ohio company, and HARLEYSVILLE INSURANCE COMPANY, a Pennsylvania company, Defendants.

          JAMES LEE GUSE Barker Martin Attorneys for Plaintiff

          DIANE L. POLSCER BRIAN C. HICKMAN KAYLEIGH T. KEILTY PATRICIA M. LAMBERT Pessin Katz Law, P.A. Attorneys for Defendants

          OPINION AND ORDER

          ANNA J. BROWN United States Senior District Judge.

         This matter comes before the Court on Defendants' Motion (#18) to Dismiss Count II of Plaintiff's Complaint and Motion (#17) to Strike Jury Demand. For the reasons that follow, the Court GRANTS Defendants' Motions.

         BACKGROUND

         The following facts are taken from Plaintiffs' Complaint and the parties' filings related to Defendants' Motion to Dismiss and Motion to Strike.

         On September 14, 2015, Defendants Nationwide Mutual Fire Insurance Company and Harleysville Insurance Company issued to Plaintiff Surfsand Resort, LLC, a Standard Flood Insurance Policy (SFIP) pursuant to the National Flood Insurance Act (NFIA), 42 U.S.C. § 4001(a). The policy period was from September 14, 2015, through September 14, 2016. The policy provides in relevant part that it and “all disputes arising from the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by Federal Emergency Management Agency (FEMA), the National Flood Insurance Act of 1968 . . . and federal common law.” Decl. of Kayleigh Toth Keilty, Ex. B at 24.

         On December 11, 2015, the tidal waters of the Pacific Ocean overflowed and allegedly damaged the bottom level of hotel rooms at the Surfsand Resort in Cannon Beach, Oregon, which is owned by Plaintiff.

         On June 3, 2016, Nationwide issued a coverage determination letter in which it denied coverage on the ground that there were not any visible signs of covered flood damage. Plaintiff appealed Nationwide's denial of coverage to FEMA as required by the terms of the SFIP. “A formal denial letter [of Plaintiff's appeal] was received by Plaintiff on March 27, 2017.” Compl. at ¶ 24.

         On June 2, 2017, Plaintiff filed an action in this Court against Defendants asserting claims for breach of insurance contract and negligence per se. Plaintiff seeks damages, attorneys' fees, and a jury trial.

         On August 21, 2017, Defendants filed a Motion to Dismiss Count II of Plaintiff's Complaint and a Motion to Strike Jury Demand. The Court took the Motions under advisement on September 21, 2017.

         DEFENDANTS' MOTION (#18) TO DISMISS COUNT II OF PLAINTIFF'S COMPLAINT

         Defendant moves to dismiss Plaintiff's claim for negligence per se and Plaintiff's demand for attorneys' fees on the ground that they are preempted by the NFIA and/or the National Flood Insurance Program (NFIP), C.F.R. Title 44, Chapter I, Subchapter B, Part 59, et seq.

         I. Standards

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atlantic v. Twombly, 550 U.S. 554');">550 U.S. 554, ] 570, 127 S.Ct. 1955 [(2007)]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. . . . The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. at 557, 127 S.Ct. 1955');">127 S.Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). See also Bell Atlantic, 550 U.S. at 555-56. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Novak v. U.S., 795 F.3d 1012, 1017 (9th Cir. 2015).

         "In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)(citation omitted). A court, however, "may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)(citation omitted).

         II. National Flood ...


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