United States District Court, D. Oregon
SURFSAND RESORT, LLC, an Oregon limited liability company, Plaintiff,
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, an Ohio company, and HARLEYSVILLE INSURANCE COMPANY, a Pennsylvania company, Defendants.
LEE GUSE Barker Martin Attorneys for Plaintiff.
L. POLSCER BRIAN C. HICKMAN Gordon & Polscer, LLC
KAYLEIGH T. KEILTY PATRICIA M. LAMBERT Pessin Katz Law, P.A.
Attorneys for Defendants.
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion (#32)
for Summary Judgment and Defendants' Cross-Motion (#36)
for Summary Judgment. The Court concludes the record is
sufficiently developed such that oral argument would not be
helpful to resolve these Motions. For the reasons that
follow, the Court DENIES Plaintiff's
Motion, GRANTS Defendants' Motion, and
DISMISSES this matter.
following facts are taken from Plaintiffs' Complaint and
the parties' filings related to their Motions for Summary
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
“insure[d] [Plaintiff] against direct physical loss by
or from flood.” Joint Statement of Agreed Facts at
¶ 5. The policy, however, imposed “restricted
coverage on building items located in a ‘basement,'
which it define[d] 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.'” Joint Statement of Agreed Facts at ¶
6 (quoting Ex. 1, Art. II(B)(5)).
policy also provided “‘[w]ithin 60 days
after the loss, send us a proof of loss, which is
your statement of the amount you are claiming under the
policy signed and sworn to by you.'” Joint
Statement of Agreed Facts at ¶ 8 (quoting Ex. 1, Art.
VII(J)(4)) (emphasis in original). Finally, the policy
“If we reject your proof of loss in whole or in part
you may: (a) Accept such denial of your claim; (b) Exercise
your rights under this policy; or (c) File an amended proof
of loss as long as it is filed within 60 days of the date of
Statement of Agreed Facts at ¶ 9 (quoting Ex. 1, Art.
December 11, 2015, the tidal waters of the Pacific Ocean
overflowed and damaged the bottom level of hotel rooms at the
Surfsand Resort in Cannon Beach, Oregon, which Plaintiff
December 22, 2015, Nationwide received its first notice of
loss from Plaintiff.
claim was assigned to Colonial Claims Corporation who
assigned Jacob Valencia to serve as the independent
adjuster.” Joint Statement of Agreed Facts at ¶
13. Valencia advised Plaintiff:
I am the eyes and ears of the insurance company. I cannot
bind them. I cannot tell you what amount of money you will be
paid. My job is to make assessment for the insurance company
of the damage under the policy coverage based on my knowledge
and experience. My assessment will be subject to the
insurance company's approval.
Your insurance policy is a written contract with stated terms
and conditions. Please comply with them and specifically we
want to note you should file a Proof of Loss within sixty
days from the date of your event. Please see VII. General
Conditions, p12 of 19 for details on the proof of loss.
Statement of Agreed Facts at ¶¶ 13-14.
4, 2016, Plaintiff executed a signed and sworn Proof of Loss
in the amount of $98, 765.08. Joint Statement of Agreed Facts
at ¶ 17.
point before June 2, 2016, Plaintiff requested the Federal
Emergency Management Agency (FEMA) to grant Plaintiff a
waiver of the 60-day Proof of Loss deadline contained in the
SFIP with respect to Plaintiff's Proof of Loss in the
amount of $98, 765.08.
2, 2016, FEMA granted Plaintiff a limited waiver of the
60-day Proof of Loss deadline as follows:
Based on the information you submitted, your request for a
waiver of the 60 day Proof of Loss policy provision is
approved. This limited waiver is for only the amount of
the loss and scope of the damages outlined in this
request and otherwise does not waive the proof of loss
or any other requirement of the [SFIP] and makes no other
comment because of lack of information.
Decl. of Brian C. Hickman, Ex. 4 at 2 (emphasis added).
3, 2016, Nationwide sent Plaintiff a coverage-determination
letter enclosing a check for $98, 765.08 and advising
Plaintiff that it was denying coverage for
damages to the insured contents and all non-covered items
located in the basement pursuant to the SFIP and quoted the
relevant policy language. The letter also explained the
appeal process and provisions related to filing suit against
Statement of Agreed Facts at ¶ 19.
14, 2016, Plaintiff appealed Nationwide's denial of
coverage for damage to the “non-covered items located
in the basement” to FEMA. Specifically, Plaintiff
disputed Nationwide's determination that Plaintiff's
property had a basement within the meaning of the SFIP.
October 19, 2016, FEMA advised Plaintiff that an inspection
by John Garner, an Oregon licensed engineer, was
“necessary because the elevations of the lowest floor
and adjacent grades of ...