Davis v. Nationwide Mutual Fire Insurance Company, No. 4:2010cv00101 - Document 59 (E.D. Va. 2011)
Court Description: OPINION AND ORDER that plaintiff's Motion for Summary Judgment (ECF No. 48) is DENIED and Nationwide's Motion for Summary Judgment (ECF No. 50) is GRANTED in part and DENIED in part. In particular, the Court grants summary judgment to Nati onwide with respect to all of Davis's claims except for damages related to the removal and replacement of the vapor barrier installed across the floor of the crawl space beneath his home and the repair and replacement ofvents in the foundation walls of his home. The Clerk is DIRECTED to set a bench trial date for Davis's remaining claims. Signed by Magistrate Judge F. Bradford Stillman and filed on 9/9/11. Copy mailed as directed on 9/9/11.(jcow, )
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FILED UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OP VIRGINIA Newport News Division SEP -9 201] ROMAN DAVIS, '>-.' ' ', "O: K \'A Plaintiff, V. Case No. NATIONWIDE MUTUAL 4:10cvl01 FIRE INSURANCE COMPANY, Defendant. OPINION AND ORDER Before the Court are cross-motions for summary judgment. plaintiff, 10, 2011. Insurance Roman Davis, ECF No. Company filed a Motion for Summary Judgment on May 48. The defendant, ("Nationwide"), filed Nationwide Mutual its for Motion Judgment and opposition to Davis's1 motion on May 23, No. 50. The Fire Summary 2011. ECF Davis filed his opposition to Nationwide's motion on June 1 Whether the proper possessive form of the plaintiff's name is "Davis's" or "Davis"' is a matter of some debate. See The Chicago Manual of Style 201 (14th ed. 1993) ("How to form the possessive of polysyllabic personal names ending with the sound of s or z probably occasions more dissension among writers and editors than any other orthographic matter open to disagreement.") The authorities on this subject appear to be split. Compare William Strunk, Jr. &. E. B. White, The Elements of Style 1 (3d ed. 1979) ("Form the possessive singular of nouns by adding J_s. Follow this rule whatever the final Office, GPO Style Manual consonant."), with U.S. Gov't Printing § 8.3 (30th ed. , 2008) ("The possessive case of a singular or plural noun ending in s or with an s_ sound is formed by adding an apostrophe only."), available at http://www. gpoaccess.gov/stylemanual/index.html. The Court embraces (perhaps arbitrarily) the former style in this opinion, but reserves the right to revisit this question future writings. (perhaps deciding it differently) in 1, 2011. ECF No. 54. The Court will rule on these motions without oral hearing pursuant to Local Civil Rule 7{J) the Federal Rules of Civil is plaintiff, an insurance the plaintiff, Davis, Insurance Program under the of under Flood action brought flood damage Policy ("NFIP"). National BACKGROUND coverage seeking payment Standard Flood Insurance of Procedure. I. This and Rule 78(b) ("SFIP") the a pro pursuant The NFIP was of the National se to issued by Nationwide auspices Insurance claims by a to Flood established by Congress Act of 1968 to make flood insurance available from the federal government on reasonable terms and conditions and to encourage sound exposure of property to flood losses. Director of the Federal Emergency land use See 42 U.S.C. Management functions as the sole administrator of the NFIP. Bruce Ins. Co., regulations, using Policy the 288 "all terms (SFIP)." F.3d 596, policies and 599 (4th issued under conditions of by the Cir. § minimizing 4001. Agency ("FEMA") Battle v. 2002). the NFIP must Standard Flood The Seibels Under be FEMA issued Insurance id. Under these terms, Nationwide operates as an insurance carrier under FEMA's Write-Your-Own (WYO) Program. The WYO Program is a program whereby private insurance companies are allowed to issue, under their own names as insurers, flood insurance policies under the Government Program. Insurance companies which participate in the WYO Program are - 2 - known as "WYO Companies." . . . "A WYO Company- issuing flood insurance coverage shall arrange for the adjustment, settlement, payment and defense of all claims arising from policies of flood insurance it issues under the [NFIP], based upon the terms and conditions of the [SFIP]." Premiums collected by WYO Companies, after deducting fees and costs, must be deposited in the National Flood Insurance Fund in the United States Treasury. ... In short, premiums collected on policies written by WYO Companies do not belong to those companies. Thus, claim payments on such policies are a direct charge on the United States Treasury. Battle, 288 F.3d at 599-600 (citations omitted). This Court has subject matter jurisdiction pursuant to 28 U.S.C. Co., § 1331. See Studio Frames Ltd. 369 F.3d 376, 379-80 (4th Cir. A. DAVIS'S Davis Drive in is the Poquoson, situated on owner of of Standard Fire Ins. 2004).2 COVERAGE CLAIM a home Virginia. a parcel v. located The home land adjacent at is to an 16 Roberts Landing elevated building Roberts Creek. It is located within an area designated by FEMA as a Special Flood Hazard Area.3 In addition to 2 In Studio Frames, whether the federal an ordinary homeowner's policy, Davis the Fourth Circuit declined to decide courts possess "original and exclusive jurisdiction" pursuant to 42 U.S.C. § 4072 to "hear and determine" claims against WYO Companies, as opposed to claims against the Director of FEMA, finding federal question jurisdiction in such a case to be sufficient. See Studio Frames, 369 F.3d at 380. 3 A "Special Flood Hazard Area" is defined in the SFIP as "[a]n area having special flood or mudflow, and/or flood-related erosion hazards, and shown on a Flood Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO, - 3 A1-A30, - AE, A99, AH, AR, AR/A, secured flood Nationwide in insurance its from role as Nationwide, a WYO which Company, was with issued the by policy underwritten by the United States Treasury. On November 12, caused Roberts Davis's home. $44,941.54 2009, Creek to Davis for heavy rainfall and a saltwater high tide overflow and damage submitted a proof damage Nationwide requested a to his report of loss property from an low-lying parts of in the amount of from independent the flooding. adjuster, who concluded that Davis was entitled to $18,490.87 under the SFIP and that the remainder of under the Davis's home was Insurance therefore, lowest policy. Rate In Davis's claim particular, constructed after Map ("FIRM") involved damage not the the became covered adjuster concluded applicable initial effective on May 16, that Flood 1977; coverage for flood damage to property located below the elevated floor of Davis's home was limited to certain categories of property specifically enumerated in the policy. January 7, 2010, Nationwide adopted the adjuster's report On and provided Davis with a claim check for $18,490.87 while denying the difference of $26,450.67.4 AR/AE, AR/AH, AR/AO, AR/A1-A30, V1-V30, VE, or V." 44 C.F.R. pt. 61 app. A(l), art. II(B)(26). Davis's home indeed his entire community is situated within an area designated by FEMA as Zone AE. 4 Nationwide paid $16,874.05 for "building covered damage" and $1,682.74 for "recoverable depreciation" minus a $500.00 deductible. Nationwide also paid $934.08 for "contents covered damages" minus a $500.00 deductible. It appears from the - 4 - On July 21, 2010, Davis filed an action against Nationwide in the York County-Poquoson Circuit Court alleging that the damage to his home for which covered under the Nationwide SFIP. Court on August 17, had denied Nationwide 2010. ECF No. coverage removed 1. that was in action Davis's original fact to this complaint was dismissed by the Court with leave to file an amended complaint, which Davis filed on October 19, 2010. ECF Nos. 9, 11. Nationwide filed an answer denying Davis's claim that coverage was improperly denied under the terms of the policy, but moved to dismiss four additional claims that Nationwide argued were preempted by federal law. ECF Nos. 12, 15. dismiss on April 14, be resolved. The specific were established Appendix A(l) 2011, ECF No. B. THE to The Court granted Nationwide's motion to leaving only Davis's coverage claim to 44. STANDARD FLOOD INSURANCE POLICY terms of the SFIP Dwelling Form issued to Davis by regulations Part 61 of promulgated Title 44 of by the FEMA, Code found of at Federal adjuster's report that Nationwide paid for the cost to clean up mud and debris and repair certain damage caused by the flooding. Nationwide denied coverage for damage to "the garage doors, rear entry door, drywall, moisture barrier, termite treatment, tackle box, gas can, welder, etc. located below the first elevated floor in your Post-firm [sic] elevated building." Davis claims that Nationwide also improperly refused coverage for flood damage to certain foundation vents and to miscellaneous personal property stored in the garage. - 5 - Regulations.5 The declarations page of the SFIP issued to Davis identifies his home as an elevated building of post-FIRM construction. No. 8 attach. building 6. that The SFIP defines an "Elevated Building" has no basement and that has its lowest floor raised above ground level by foundation walls, posts, art. piers, pilings, II(B)(14). or columns." 44 C.F.R. It defines a "Post-FIRM Building" as for which construction or substantial December 31, Flood pt. 1974, ECF as "[a] elevated shear walls, 61 app. "[a] A(l), building improvement occurred after or on or after the effective date of an initial Insurance Rate Map (FIRM), whichever is later." id. art. 1KB) (23) . Under Coverage A of the SFIP, FEMA, Nationwide agreed, to insure certain "building property" Specifically, against direct flood6 to: 5 A copy of as against flood damage. Nationwide agreed to: insure attached on behalf of an the physical "Dwelling Policy" exhibit to Davis's loss by or from provided to Davis brief in opposition to was an Nationwide's earlier motion to dismiss. ECF No. 8 attach. 1. This policy document provides on its first page that it was issued pursuant to the National Flood Insurance Act of 1968 and applicable federal regulations in Title 44 of the Code of Federal Regulations. Appendix A(l) to Part 61 of Title 44 sets forth the terms of the "Dwelling Form" of the SFIP, which matches the terms of the "Dwelling Policy" issued to Davis by Nationwide as a WYO Company, as required by federal regulations. See 44 C.F.R. pt. 62 app. A, art. II(D)(3); see also 44 C.F.R. § 61.13{f). 6 The SFIP defines the phrase "Direct Physical Loss By or From Flood" as: "Loss or damage to insured property, - 6 - directly caused by 1. The dwelling at the described location .... 2. Additions and extensions attached to and in contact with the dwelling by means of a rigid exterior wall, a solid load-bearing interior wall, a stairway, an elevated walkway, or a roof. . . . Additions and extensions attached to and in contact with the building by means of a common interior wall that is not a solid load-bearing wall are always considered part of the dwelling .... Id. art. Ill(A)(1), (2) . Under Article III(A)(8), the SFIP provides limited coverage to certain building property located below the lowest elevated floor of an elevated Hazard Area. post-FIRM building Specifically, insure against flood to in a Special Flood Nationwide agreed to: direct ... situated physical [i]terns of loss [building] by or from property in a building enclosure below the lowest elevated floor of an elevated Special Flood regardless of post-FIRM Hazard the building Area], zone. or located in Coverage is a in [a basement, limited to the following: a. Any of the following items, if installed their functioning locations and, if necessary operation, connected to a power source: (1) Central (2) in for air conditioners; Cisterns and the water in them; (3) Drywall for walls and ceilings in a basement the cost of labor to nail it, unfinished and and unfloated and not taped, (4) Electrical to the framing; junction and circuit breaker boxes; (5) a flood. property." Electrical outlets and switches; There 44 must C.F.R. be pt. evidence 61, app. - 7 of A(l), - physical art. changes II(B)(12). to the (6) Elevators, dumbwaiters and related equipment, except for related equipment installed below the base flood elevation after September 30, 1987; (7) Fuel (8) Furnaces and hot water heaters; (9) Heat pumps; (10) tanks and the fuel in them; Nonflammable insulation in a basement; (11) Pumps and tanks used in solar energy systems; (12) Stairways and staircases attached to the building, not separated from it by elevated walkways; (13) Sump pumps; (14) Water softeners and the chemicals in them, water filters, and faucets installed as an integral part of the plumbing system; (15) Well water (16) Required utility connections for any item in this list; (17) piers, tanks and Footings, or and pumps; other foundations, foundation posts, walls and pilings, anchorage systems required to support a building. b. 44 C.F.R. Clean-up. pt. 61 app. Under Coverage B, to a separate A(l), art. III(A)(8). the SFIP provides similar coverage, deductible and limit of liability, for subject personal property located inside an insured building. See 44 C.F.R. pt. app. III(B)(3), A(l), provides art. limited III(B)(1). coverage Under to Article certain personal property the 61 SFIP located below the lowest elevated floor of an elevated post-FIRM building - 8 - situated in a Special Flood Hazard Area. provides Specifically, the SFIP that: Coverage for items of [personal] property in a building enclosure below the lowest elevated floor of an elevated post-FlRM building located in [a Special Flood Hazard Area], or in a basement, regardless of the zone, is limited to the following items, if installed in their functioning locations and, if necessary for operation, connected to a power a. source: Air conditioning units, portable or window type; b. Clothes washers and dryers; c. any 44 C.F.R. Food freezers, and other than walk-in, and food in freezer. pt. 61 app. A(l), II. art. III(B){3). SUMMARY JUDGMENT STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "there is no genuine dispute as to any material matter of law." fact and the movant Fed. if it might affect Lobby, 477 "genuine" U.S. only Civ. P. 56(a). entitled to A fact is the outcome of the case. 242, if R. is 248 the (1986). evidence judgment as "material" only Anderson v. A dispute of material "is such that a Id. a the judgment motion, whole and in the light most Floor Fashions, (4th Cir. Inc. v. the Court must favorable to Burlington Indus., 1985). - 9 - view fact is jury In deciding record the nonmovant. Inc., Liberty reasonable could return a verdict for the non-moving party." summary a as a Terry's 763 F.2d 604, 610 The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and demonstrating material fact. the absence of Celotex Corp. v. Catrett, If the movant makes such a showing, specific facts, a genuine 477 U.S. 317, dispute 323 of (1986). the nonmovant must set forth supported by the record, demonstrating that "the evidence presents a sufficient disagreement to require submission to the jury." Anderson, 477 U.S. at 251-52. When confronted with cross-motions for summary judgment, standards upon which the court evaluates judgment do not change." F.2d 240, 248 (6th Taft Broad. Cir. 1991). the motions Co. "[T]he motion separately on its own merits v. must Inc. v. 316 F.3d 516, Harshbarger, 523 122 (4th Cir. F.3d review 929 each 'to determine whether either of the parties deserves judgment as a matter of law.'" Voorhaar, for summary United States, Court "the 58, 2003) 62 n.4 Rossignol v. (quoting Philip Morris (1st Cir. 1977)). The mere fact that both sides have moved for summary judgment does not establish that no genuine dispute of material exists, thus requiring that judgment be granted to one side or the other. See Worldwide Rights Ltd. Cir. 1992); F.2d 214, dispute, that Am. 216 Fid. P'ship v. & Cas. (4th Cir. Combe Inc., Co. v. 1965). fact 955 F.2d 242, London & Edinburgh Ins. 244 Co., (4th 354 Even if the basic facts are not in the parties may nevertheless disagree as to the inferences reasonably may be drawn from - 10 - them, in which case summary judgment may be inappropriate, motions. See Am. Fid. & Cas. necessitating the denial of both Co., III. 354 F.2d at 216. ANALYSIS A. SUBSTANTIVE LAW GOVERNING INTERPRETATION OF THE SFIP "Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program." Leland Federal v. Fed. common Ins. Adm'r, law, 934 however, F.2d draws 524, upon 529 (4th standard Cir. 1991) . insurance law principles to resolve disputes over coverage pursuant to a SFIP.7 7 The Court notes that promulgated by FEMA regulation. the terms of the SFIP have been See generally 44 C.F.R. § 61.13; id. pt. 61, app. A(l) {SFIP Dwelling Form). Ordinarily, FEMA's interpretation of its own regulations is entitled to substantial deference by the federal courts. See United States v. Hoechst Celanese Corp., 128 F.3d 216, 221 (4th Cir. 1997); see also Stinson v. United States, 508 U.S. 36, 45 (1993) ("Provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation."). Although the terms of the SFIP are promulgated by the United States in its role as a regulator, the individual policy issued to Davis by Nationwide (as a servicing agent for FEMA under the auspices of the WYO Program) is an insurance contract entered into by the United States in a non-regulatory role. As the Supreme Court has observed, "[w]hen the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals." United States v. Winstar Corp., 518 U.S. 839, 895 (1996) (quoting Lynch v. United States, 292 U.S. 571, 579 (1934)); see also Cooke v. United States, 91 U.S. 389, 398 (1875) ("If [the federal government] comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there."); In re Peanut Crop Ins. Litig., 524 F.3d 458, 470 (4th Cir. 2008) {"[I]t is customary, where Congress has not adopted a different standard, to apply to the construction of government contracts the principles of general contract law, - 11 - Studio Frames Ltd. (4th Cir. 2007). v. First, and unambiguous, adopt Third, the this 'should not contracts apparent be are favoring applied to be objective Materials, Inc. v. and 483 1262 F.3d at 245. construction of reasonably intent 1976)), this F.3d 239, 245 if the disputed of where construed the insured." ambiguity because Id. exists "'[i]nsurance consonant parties.'" 748 F.2d 1011, v. the with the Hanover {5th Cir. 1013 Bldg. 1984) Hartford Fire Ins. Co., 540 F.2d cited with approval in Studio Frames, Fourth, "l[i]n deciding the contested provisions draw from consists of those whole, insured to automatically,'" Guiffrida, (5th Cir. Second, favorable the (quoting Eagle Leasing Corp. 1257, 483 or susceptible to different constructions, construction most "rule Co., "if the policy language in issue is clear we apply it directly. language is ambiguous, we Standard Fire Ins. is, what a reasonable the material we may [contested] provisions, the policy as a and the apparent objectives of the parties in establishing kind of contractual relationship.'" id. (quoting Eagle which become federal common law.") (quoting Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1245 (Fed. Cir. 2007)). Accordingly, this Court looks to standard insurance law principles and treats FEMA guidance with respect to specific provisions of the SFIP as evidence of the objectives and intent of one of the parties to an insurance contract, rather than treating FEMA guidance as regulatory interpretations entitled to controlling weight. See, e.g., Studio Frames, 483 F.3d at 244-48. But see Ginart v. State Farm Cas. Ins. Co., No. 07-6841, 2009 WL 537092, at *4 (E.D. La. Mar. 4, 2009) (giving controlling weight to FEMA guidance interpreting certain SFIP provisions) (quoting Stinson, 508 U.S. at 36-37). - 12 - Leasing, 540 F.2d at 1262). policy terms remains And finally, ««if the meaning of the [in the end] unclear, the policy is generally construed in favor of the insured in order to promote the policy's objective Indus., 1982)) of Inc. providing v. coverage.'" Liberty Mut. Ins. JEd^ Co., (quoting Eagle-Pitcher 682 F.2d 12, 17 (1st Cir. (alteration in original). B. WHETHER DAVIS'S HOME IS A POST-FIRM BUILDING In denying coverage for a portion of the losses claimed by Davis, Nationwide relied on policy language limiting coverage for flood losses to property located below the lowest elevated floor of an elevated post-FlRM building situated in a Special Flood Hazard Area. The See 44 C.F.R. pt. effective date Davis's property attach. 3 of is (extract 61 app. A(l), the initial located is arts. FIRM May 16, Ill(A)(8), for the 1977. III(B)(3). community where See from legend of applicable FIRM). ECF No. 51 A threshold issue then is whether construction of Davis's home at 16 Roberts Landing Drive was started on or after May 16, 8 As noted above, 1977. 8 the SFIP defines "Post-FIRM Building" as "[a] building for which construction or substantial improvement occurred after . . . the effective date of an initial Flood Insurance Rate Map (FIRM) . . . ." 44 C.F.R. pt. 61 app. A(l), art. II(B)(23). FEMA has further clarified that "Post-FIRM buildings are buildings for which the start of construction occurred on or after the effective date of the initial Flood Insurance Rate Map (FIRM) for the community in which the building is located." Elevated Building Coverage, 53 Fed. Reg. 27,989, 27,989 (July 26, 1988) (to be codified at 44 C.F.R. pt. 61); see also Fed. Emergency Mgmt. Agency, National Flood Insurance Program: Adjuster Claims Manual at v-11 (rev. 2010) (clarifying that a - 13 - Both parties Nationwide, move for summary judgment relying on public land records, home was built in 1978, earlier than August 4, 1977, the date when the subdivision plat map by an agent, issue. contends that Davis's Davis, deceased this and that construction certainly began no for Davis's community was approved. a on insurance agent and relying on statements unidentified real estate contends that his home was built in 1974 or 1975. In evaluating each party's motion for summary judgment, Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. Civ. P. 56 (a); Celotex, showing has been made, 477 U.S. at 331. See Fed. R. Once that prima facie the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute of material See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. parts of materials in the record, stipulations stored (including only), admissions, Fed. Civ. R. P. those made interrogatory 56(c)(l)(A). to "particular including depositions, information, affidavits for or purposes answers, fact. at 331. Both the moving and nonmoving party may cite electronically the or documents, declarations, of other the motion materials." "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set "Post-FIRM Building" is one with a "[s]tart of construction . after the publication of the initial Flood Insurance Rate . . Map (FIRM)"), id=1584. available at http://www.fema.gov/library/viewRecord.do? - 14 - out facts that would be admissible in evidence, and show that the affiant or stated." declarant Fed. R. Civ. is P. competent to testify on the matters 56(c)(4). Generally speaking, evidence must be admissible at trial in order to be considered on summary judgment. A significant exception is affidavits; under Fed. R. Civ. P. 56{e), affidavits, although not themselves admissible at trial, may be offered in support of, or opposition to, summary judgment if they set forth facts that would be admissible under the Federal Rules of Evidence. Sook Yoon v. Md. Nov. 1, Sebelius, No. CBD-08-3173, 2010) 547 F.3d 220, 225 (citations omitted); (4th Cir. 2008) 2010 WL 4293513, at *5 (D. see also Ziskie v. Mineta, (holding that principles found in the Federal Rules of Evidence apply to summary judgment motions). 1. Davis's Motion for Summary Judgment Davis contends that he is entitled to summary judgment because his home was built before the May 16, 1977 FIRM effective date, and therefore it is not subject to the coverage limitations imposed by Articles III(A)(8) declarations and III(B)(3). page of Nationwide in 2002, a In support, homeowner's which states, home was built in 1974. ECF No. 49 attach. agent who sold him his home in 1979 PL's Mem. in Supp. of Mot. 15 1. to (unidentified) for Summ. - him the by that his He further states told him that But Davis also submits copies of his - issued submits in conclusory fashion, in his supporting memorandum that the 1975. policy Davis J. real estate it was built in 6-7, ECF No. 49. flood insurance application and certain city land records, all of which state that his home was built in 1978. memorandum, ECF No. 49 Davis concedes attachs. that 4-6. there is Mot. for Summ. J. 7-8, ECF No. 49. clearly failed to make a prima dispute of material fact judgment as a matter of law. 477 U.S. at 331. On some of it suggesting this and that Civ. in Supp. of record, showing See Fed. R. Accordingly, supporting See Pl.'s Mem. facie genuine his conflicting information regarding the construction date of his home, that his home is a post-FIRM building. In that he P. is Davis there has is no entitled to 56(a); Celotex, the Court will deny the plaintiff's motion for summary judgment to the extent Davis seeks a ruling that his home was built before the applicable FIRM effective date. 2. Nationwide's Motion for Summary Judgment In support of its position that Davis's home was constructed after May 16, 1977, Nationwide has submitted land records obtained from an online database maintained by the City of Poquoson.9 ECF 9 The Court notes that government records such as these, obtained from the website of the City of Poquoson Assessor's Office, are typically self-authenticating and not excluded by the hearsay rule, and they are therefore admissible evidence of the information contained therein. See Fed. R. Evid. 902(5) (selfauthentication of official publications); Fed. R. Evid. 803(8) (hearsay exception for public records and reports); see also Paralyzed Veterans of Am. v. McPherson, No. C 06-4670, 2008 WL 4183981, at *6-*7 (N.D. Cal. Sept. 9, 2008). Moreover, the information contained in such government records is generally admissible by judicial notice. See Fed. R. Evid. 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably - 16 - No. 51 attach. 7. These land records Built" for Davis's home.10 submitted: identify 1978 as the "Year From its own files, Nationwide has also (1) a copy of the flood insurance application submitted for Davis's property, which indicates a "Construction] Date/Permit Date" of April 15, correspondence, 1978, dated ECF No. November 51 11, attach. 2005, 8; (2) a forwarding copy the application form to Davis's insurance agent for his review, 51 attach. insurance 9; and (3) policy of same ECF No. a copy of the declarations page of the flood issued to Davis, "Post-Firm Construction," ECF No. which describes 51 attach. the home as 10.n be questioned."); see also Scott v. Hollister, No. 1:10-2517, 2011 WL 825746, at *1 & n.l (D.S.C. Feb. 7, 2011); Scott v. Stansbury, No. 2:10cv61, 2010 WL 5769521, at *2 n.4 (E.D. Va. Dec. 16, 2010). 10 Davis attempts to impeach the accuracy of this information by pointing to other information in the city land records that is allegedly incorrect. For example, Davis claims that, whereas the land records describe his home as having three bedrooms, two bathrooms, and wood siding, his home actually has four bedrooms, two-and-a-half bathrooms, and vinyl siding. PL's Mem. in Supp. of Mot. for Summ. J. 6, ECF No. 49. As Nationwide points out, Davis has submitted this information only in his unsworn memorandum, rather than by affidavit, declaration, or citation to documentary evidence in the record. Moreover, the Court notes that the features highlighted by Davis are all physical characteristics subject to modification by a homeowner over time. By contrast, the construction date of his home is an immutable characteristic of the property, and the city's this historical fact. 11 These additional land records documents are are competent evidence authenticated by of the declaration of a corporate representative of Nationwide who is also the custodian of records for Davis's claim file there. The declarant also states that these documents are true and correct copies of documents maintained by Nationwide for Davis's insurance claim under the SFIP issued by Nationwide. The Court notes that these two documents are therefore admissible as regularly kept business records, pursuant to the hearsay exception set out in Rule - 17 - Nationwide further relies on a stipulation that the City of Poquoson granted an Approval of Plat for the Roberts Landing subdivision, where Davis's home is located, on August 4, 1977. Final Pre-Trial fact), ECF No. subdivision Order para. 1(A)(1) 45; see also ECF No. plat, approved (stipulation of 51 attach. and recorded 11 See undisputed (Roberts Landing August 4, 1977). Nationwide submits additional documents to demonstrate that a cityordinance in effect at the time provided that the City of Poquoson would not issue a building permit for the construction of any building within a subdivision until a subdivision plat had first been approved by the City Manager. ECF No. 51, attachs. 12, 13.12 These documents suggest that the earliest possible date upon which construction of Davis's home could have begun was August 4, 1977, the date when the subdivision plat for his community was approved 803(6) of the Federal Rules of Evidence. See Nader v. Blair, 549 F.3d 953, 963 {4th Cir. 2008) (business records admissible under Fed. R. Evid. 803(6) constituted "appropriate summary judgment evidence"). 12 Although this historical city ordinance is not available on the internet, the document submitted is nevertheless selfauthenticating and not excluded by the hearsay rule, and it is therefore admissible evidence of the provisions of the ordinance itself. See Fed. R. Evid. 902(5) (self-authentication of official publications); Fed. R. Evid. 803(8) (hearsay exception for public records and reports). Moreover, the specific provisions of the subdivision ordinance itself are admissible by judicial notice. See Fed. R. Evid. 201 (b) . The Court further notes that the contemporary version of the Subdivision Ordinance of the City of Poquoson, Virginia, which is readily accessible online, is substantively identical to the 1976 subdivision ordinance in all material respects. See Poquoson, Virginia, Ordinance No. 461, §§ 3-1, 4-2, 4-4 (1981), available at http://library.municode.com/ h tml/11443/level2/PTIlCOOR_APXBSU.html. - 18 - and recorded, and thus the first date when a building permit could have been issued. Nationwide has cited a substantial body evidence to establish that Davis's home was time after May 16, the area where Nationwide has 1977, documentary constructed at some the effective date of the initial FIRM for Davis's met of its property initial is burden located. of Accordingly, making a prima facie showing that it is entitled to summary judgment on this issue. burden thus shifts to Davis genuine dispute of material to demonstrate the existence The of a fact. In response to Nationwide's evidence, Davis relies on: (1) the declarations page of a separate homeowner's policy issued to him by Nationwide in 2002, which states, home was built in 1974, ECF No. the home was built in 1975, in conclusory fashion, 49, attach. 1; of Mot. for Summ. J. 6-7, ECF No. in 1979, 49; and related to a flood claim filed by his neighbor, pre-FIRM construction attach. upon 7. which material for his neighbor's PL's Mem. (3) a in document which indicates a home, ECF No. 49, None of these documents constitutes admissible evidence Davis may rely to establish a genuine dispute of fact. First, policy date a statement that made to Davis by an unidentified real estate agent when he sold the home to Davis Supp. (2) that his Davis issued to submits the declarations page of a homeowner's him Nationwide by - 19 - in 2002, which contains a conclusory statement that his home was built in 1974, 1978. the Bill Ward, homeowner's rather than the insurance agent who prepared and presented policy to Davis, is reportedly therefore unavailable to offer testimony at trial. deceased and Davis instead seeks to rely on the declarations page itself to establish a preFIRM construction date for his home. But this document constitutes inadmissible hearsay which cannot be relied upon to demonstrate the existence of a material Davis's home. 225. See Fed. Moreover, R. Evid. as to 802; the construction date see also Ziskie, of 547 F.3d at none of the established exceptions to the hearsay rule appear to apply. Second, dispute See Fed. Davis suggests, R. Evid. 803, 804.13 in his supporting memorandum, that he was told by an unidentified real estate agent in 1979 that his home 13 Although Davis does not raise this argument, the Court notes that the alleged construction date set out in this particular document also is not admissible as an admission by party-opponent pursuant to Rule 801(d)(2) of the Federal Rules of Evidence. This is due to the fact that the document contains double hearsay, or hearsay within hearsay. Davis describes Ward as a "Nationwide insurance agent" and Nationwide does not contradict this characterization. But even assuming that Ward was an agent for Nationwide capable of making a statement which would be admissible as a party-opponent admission, the statement itself is based on hearsay. There is nothing to suggest that Ward had personal knowledge with respect to the construction date of Davis's home, and Davis admits that he does not know where Ward obtained this information. Therefore, this secondary level of hearsay cannot be attributed to Nationwide, and the document is inadmissible. Vazquez v. Lopez-Rosario, 134 F.3d 28, 34 (1st Cir. 1998) ("[U]natributed statements repeated by party-opponents cannot be admissible. As the original declarant is unknown, it is impossible to determine whether the original declarant also fits within the party-opponent definition."). - 20 - had been built in 1975. But absent an affidavit or declaration by the real estate agent, made on personal knowledge, this statement as relayed by Davis himself is inadmissible hearsay, to which none of the established exceptions to the hearsay rule appear to apply. See Fed. R. Third, Evid. 802, 804. Davis submits a document related to a flood claim filed by his neighbor, which indicates a pre-FIRM construction date for his neighbor's home. own 803, affidavit that ECF No. this 49 attach. document is 7. Davis states in his "accurate, " but fails to provide any information to establish his personal knowledge with respect to the authenticity of this document, home other than his own. as the declarations See ECF No. page 55. addressed which pertains Moreover, above, this to a much the same unattributed statement regarding the construction date of a neighboring home is inadmissible hearsay, subject to none of the established exceptions to the hearsay rule. See Fed. F.3d at 34. Finally, R. Evid. 802, 803, 804; Vazquez, 134 the construction date of a neighboring home simply is not relevant to the question of whether the plaintiff's home was built before or after the May 16, 1977 FIRM effective date.14 In any event, the Court notes that land records pertaining to the neighbor's home, copies of which were submitted by the plaintiff himself, identify the neighboring home as having been built in 1978 as well. ECF No. 49 attach. 8-9. To the extent that Nationwide has misclassified the neighboring home as a pre-FIRM building and paid flood damage claims submitted by the plaintiff's - 21 - Ultimately, the only admissible evidence submitted on this point establishes that Davis's home was constructed at some date after the applicable FIRM effective date of May 16, has failed to cite any admissible evidence to 1977. Davis demonstrate a material dispute of fact that would require the submission of this issue to Lobby, FINDS a Inc., that respect to Nationwide issue. finder of 477 U.S. there the is is no entitled which at 242, trial.15 249 See Anderson v. (1986). genuine post-FIRM Specifically, III(B)(3), fact to Accordingly, the Court of fact with and that law on this dispute construction judgment of as Liberty material Davis's a matter home, of the Court FINDS that Articles III(A)(8) limit coverage with respect and to property located below the lowest elevated floor of an elevated post-FIRM building, apply to limit coverage with respect to the flood losses claimed by Davis. C. DAVIS'S REMAINING CLAIMS Davis concedes that if his home FOR COVERAGE is indeed a post-FIRM neighbor without asserting the same post-FIRM coverage limitations as it did with respect to Davis's claim, this suggests only that Davis's neighbor may have benefited from a windfall due to Nationwide's misclassification of that property as pre-FIRM. It does not in any way support the plaintiff's claim that his home should be similarly classified as pre-FIRM. 15 The Court notes that, even if the documents submitted by Davis were admissible, summary judgment for Nationwide on this point would be appropriate nonetheless, as the information cited by Davis is at best "a mere scintilla of evidence that is not significantly probative and would not allow a reasonable factfinder to return a verdict in [his] favor." See Textron Inc. v. Barber-Coleman Co., 903 F. Supp. - 1546, 22 - 1558 (W.D.N.C. 1995). building, properly coverage denied for by some portion Nationwide. of But his claimed Davis losses contends was that he nevertheless is entitled to coverage for $16,253.00 in losses that were improperly denied by Nationwide. In particular, Davis argues that certain of the items of property classified by Nationwide as located below the lowest elevated floor of Davis's therefore not covered pursuant to Articles III(A)(8) home, and and III(B)(3), should be covered because some undamaged portion of each of these items extends argues above the lowest that certain additional scope of the limited elevated items coverage floor. Davis further of property fall within the afforded to items of property specified in Article III(A)(8). 1. Items Both Above and Below the Lowest Elevated Floor Davis contends that Nationwide improperly denied coverage with respect to several items of property two insulated steel overhead garage doors, an insulated steel back entry door to sheets of drywall affixed to wall studs in the garage, tools and equipment sitting on the floor of the the garage, and various garage16 which Davis contends lie both above and below the lowest elevated floor of his home. resultant elevated items Mot. Davis concedes flood damage, floor of his that did not home, rise but he the to flood waters, the level argues of that, and the the lowest because some 16 Davis provides a detailed list of these personal property in his memorandum in support. for Summ. J. 4-5, ECF No. - 49. 23 - See PL's Mem. in Supp. of undamaged portion of each of these items extends above the lowest elevated floor, entire item, coverage should be afforded with respect to the including the damaged portion located below the lowest elevated floor. Generally, loss by or from location . contact the . with . SFIP provides flood [and] the to . . . [t]he policy for dwelling "direct at the physical described [a]dditions and extensions attached to and in dwelling by means solid load-bearing interior wall, or a roof."17 coverage of a rigid a stairway, exterior wall, an elevated walkway, 44 C.F.R. pt. 61 app. A(l), arts. Ill(A)(1)-(2) . provides limited coverage for a flood losses to The certain specifically identified items of "building property"18 and "personal property"19 below the lowest elevated floor of an elevated post-FIRM building. See id. arts. III(A)(8), III(B){3). 17 Based on the documentary evidence submitted by the parties, it appears that Davis's attached garage is an "addition [or] extension" to the dwelling, covered under Article III(A)(2) of the SFIP. See ECF No. 8 attach. 2, at 6. If the attached garage is not correctly considered an "addition [or] extension," however, it nevertheless would be considered an intrinsic part of the dwelling itself, subject to coverage under Article III(A)(1). See 44 C.F.R. pt. 61 app. A(l), art. III(A)(2). Davis's attached garage is covered under Coverage A in any event, so this distinction is not material to the current dispute. 18 For example, coverage is 19 For example, coverage is provided for central air window air conditioners, electrical outlets and switches, heat pumps, and certain other fixtures attached to real property, provided they are installed in their functioning locations. provided for conditioning units, clothes washers and dryers, and certain other moveable items of property, provided they are installed in their functioning locations. - 24 - Pursuant to Articles III(A)(8) and III(B){3) of the SFIP, Nationwide denied Davis's coverage claim for flood losses to the overhead garage doors, in the garage the back entry door to the garage, garage, and various floor. ECF No. 51 tools and attach. equipment 6. In drywall sitting doing so, on the Nationwide relied on two reports by an independent adjuster, who observed that flood waters reached a depth of approximately two feet, the lower number portion of tools of and the garage supplies submerged in flood waters. walls sitting ECF No. waters did not rise to the level of the home. of on as well as a the garage floor 51 attachs. 4 & 5. The flood and the lowest elevated floor of the flood waters the lowest elevated floor, but rather, each of these items of property was not floor" doors, Id. Davis does not contend that level and damaging rose above he contends the that "below the lowest elevated as set forth in Articles III(A)(8) and III(B)(3) of the SFIP because some portion of each item extends above the lowest elevated floor as well. Because the flood damage required the replacement of undamaged portions of the lowest elevated these items of property extending above floor, he argues that each item should be considered "above" the lowest elevated floor rather than below it, and thus coverage should respond for each of these items of language of property in its entirety. While creative, Davis's construction - 25 - of the Articles III(A)(8) and III(B)(3) is not a reasonable one, and it is contrary to the plain meaning of these provisions. the overhead garage doors, With respect to the back entry door to the garage, and damaged drywall in the garage, Nationwide agreed to "insure against direct physical [building] loss property by in a or from flood building to ... below enclosure [i]terns the of lowest elevated floor of an elevated post-FlRM building," subject to the caveat types that of this "[c]overage building Ill{A)(8). is limited property. 44 C.F.R. to" pt. 61, enumerated app. A(l) art. With respect to the tools and equipment sitting on the garage floor, Nationwide agreed to "insure against direct physical loss by or from flood to personal property," that certain B[c]overage for items of [personal] subject to the caveat property in a building enclosure below the lowest elevated floor of an elevated post-FIRM building ... property. Id^ arts. from Flood" property, physical is limited to" certain enumerated types of personal III(B) (1)&{3) . "Direct is defined in the SFIP as directly caused by a changes Loss by or w[l]oss or damage to insured flood. to the property." Physical There must be evidence of Id_^ art. II(B)(12) (emphasis added). The Court Considering ordinary the sense, finds this words the of Court language these to be clear and unambiguous. provisions concludes that in the their SFIP plain affords and full coverage only for direct physical damage to property located at or - 26 - above the lowest elevated floor of an elevated post-FlRM building, and limited coverage (i.e., coverage only for the listed items) with respect to direct physical damage to property below the lowest elevated floor of an elevated post-FlRM building. Standard Fire Ins. {"[Wjhere the unambiguous Co., language it is popular sense."). coverage for to 414 F. and be Supp. meaning understood Concomitantly, indirect losses to 2d 567, [of a in its the 571 See Thomas v. (E.D. policy] is 2006) does clear and ordinary plain, SFIP Va. and not provide insured property at or above the lowest elevated floor caused by flood damage to uninsured property below the elevated floor. As Davis concedes, See id. the portions property directly damaged by of flood are each of located below elevated floor of his home. The portions doors, the garage drywall, the garage entry door, these of items the of lowest the overhead garage and the tools and equipment stored on the garage floor that extend above the lowest elevated floor were only indirectly damaged by flood insofar as the damage to the uninsured lower replacement of the entire item. no direct physical overhead drywall garage damage doors, in the garage, garage floor, to the portion of each item required Davis concedes that there has been the insured, back entry upper portions door to the of garage, the the or the tools and equipment sitting on the situated above the lowest elevated floor of his home; physical damage from flood waters was limited to uninsured portions - 27 - of the property located below the lowest elevated floor. the clear and unambiguous 1KB) (12), III (A) (8), Nationwide's denial policy language and III(B)(3) of coverage contained in Articles directly, for Applying each it of is evident these items that was entirely appropriate.20 20 The Court further notes that this reading of the policy language is entirely consistent with FEMA's own publicly available guidance with respect to these coverage provisions: Full coverage for post-FIRM elevated buildings begins at the lowest elevated floor. This is the lowest floor raised above the ground .... The coverage restrictions [of Articles III(A){8) and III(B)(3)] apply to any area of an elevated building that is lower than the lowest elevated floor. Coverage will respond for the building and personal property items listed in the policy [at Articles III(A)(8) and III(B){3)], provided that these items are connected to a power source [if necessary] and functioning locations .... If a post-FIRM elevated installed building in located their in [a Special Flood Hazard Area] has an attached garage with a floor lower than the lowest elevated floor, the coverage restrictions apply to that area. Any contents located above the level of the lowest elevated floor (such as hanging from the ceiling or on the garage walls) are covered. Fed. Emergency Mgmt. Agency, National Flood Insurance Program: Adjuster Claims Manual at VTII-6 (rev. 2010), available at http://www.fema.gov/library/viewRecord.do?id=1584; see also Elevated Building Coverage, 53 Fed. Reg. 27,989, 27,989 (July 26, 1988) (to be codified at 44 C.F.R. pt. 61) ("The [post-FIRM elevated building] coverage limitation exclude[s] flood insurance coverage under the elevated the SFIP floors of for the such contents buildings, - 28 - in enclosed areas below and the enclosed areas Accordingly, the Court FINDS that there is no genuine dispute of material fact with respect to the fact that any direct physical losses garage, to the overhead garage doors, the drywall in the the back entry door garage, and the various to the tools and equipment sitting on the garage floor was limited to portions of these items of property located below the lowest elevated floor of Davis's home, and that the losses claimed with respect to insured property located above the lowest elevated floor of Davis's were only indirectly caused by flood. Nationwide issue, is entitled to judgment home The Court further FINDS that as a matter of law on this as coverage for flood losses to property located below the lowest elevated floor of an elevated post-FIRM building is limited to certain enumerated items specified in Articles themselves, retaining coverage only for essential other elements in such enclosed areas."). III(A)(8) and foundation and It is also consistent with the stated purpose of the National Flood Insurance Program to "guide the development of proposed future construction, where practicable, away from locations which are threatened by flood hazards." See 42 U.S.C. § 4001(c)(2); see also Coverage, Sales and Eligibility Provisions, 48 Fed Reg. 39,066, 39,067 {Aug. 29, 1983) (to be codified at 44 C.F.R. pts. 59 & 61) ("FEMA is convinced that the financial exposure does not warrant continuation of coverage for . . . enclosures (and contents) beneath the first floor of elevated structures."); cf. Insurance Coverage and Rates, 65 Fed. Reg. 60,758, 60,761 2000) (to be codified at 44 C.F.R. pts. 59 & 61) offering coverage for additional types of property (Oct. 12, (noting that in basements "might be at odds with the NFIP's floodplain management efforts: The NFIP would on the one hand be trying to guide development and occupancy away from the riskier such uses with its coverage."). - flood-prone 29 - areas while inviting III{B)(3) of the SFIP, none of which applies to these items. 21 2. Termite Treatment Davis contends that Nationwide improperly denied his claim for coverage with respect to post-flood termite treatments. 21 The Court notes that, He argues in passing, Davis states that "the drywall and studs are part of the system to support a building, " PL's Mem. in Supp. of Mot. for Summ. j. 4, ECF No. 49, apparently suggesting that the damaged drywall in the garage should be covered as an enumerated item specified in Article III(A)(8), which provides that coverage will be afforded for "direct physical loss by or from flood to ... [f]ootings, foundations, posts, pilings, piers, or other foundation walls and anchorage systems required to support a building." 44 C.F.R. pt. 61 app. (A)(1), art. Ill(A) (8) (a) (17) . The Court further notes that drywall or gypsum wallboard is typically used for the finish construction of interior walls and ceilings, with sheets of drywall fastened to or hung from wall or ceiling studs. Greater New Plasterers' 7076, the 2005 York, See generally Drywall Tapers & Pointers of Local & Cement Masons' WL 638006, traditional at 'sheetrock.' walls Co., v. Int'l Ass'n, F.2d presently used in of Nos. the Mar. finishing interior walls 17, 2005) which is also referred to as is the material 800 over U.S. (7th Cir. 70 percent used for Gypsum Co. 1967) ("Drywall of Operative 93-CV-0154 (E.D.N.Y. Drywall 799, 530 *2 in modern construction."); 387 Local for process with gypsum wallboard, as 1974 & 98-CV- ("Taping is constructed 'drywall' most v. and interior Nat'l Gypsum construction residential is construction. Large sheets of wallboard are nailed to studding to form interior walls."); Dictionary of Architecture & Construction 485 (Cyril M. Harris ed., 4th ed. 2006) (noting that gypsum wallboard is "used primarily as an interior surfacing in a building"); 1 Cal. Ins. Law Dictionary & Desk Reference § D78:l (2011) ("Drywall is a common manufactured building material used globally for the finish construction of interior walls and ceilings. . . . Drywall is commonly known as gypsum board, wallboard, [or] plaster board."). Davis provides no support whatsoever for his suggestion that the damaged drywall in his garage somehow constitutes an "anchorage system[] required to support a building." In any event, this conclusory statement is insufficient to support or defeat summary judgment. United States, 2010); Cir. Va. See Erwin v. Galindo 1985); v. Precision Am. JTH Tax, Inc. v. 591 F.3d 313, Corp., Lee, 514 - - 2007). 30 754 F. F.2d Supp. 319 1212, 2d 818, (4th Cir. 1221 821 (5th (E.D. that the termite treatment was necessary to protect elevated floor and the walls of his dwelling. of Mot. for Summ. J. 3-4, Priority Pest Services, claim. Meanwhile, ECF No. 49. the Pl.'s Mem. lowest in Supp. Other than an estimate by Davis cites no evidence in support of his Nationwide has submitted a report by an independent adjuster which suggests that the home was not treated for termites attach. prior the November 2009 flood. See ECF No. 51 5. Coverage A of direct physical C.F.R. to pt. the SFIP provides loss 61 app. a service, by A(l), or from art. for coverage with respect flood III(A). not an item of property. to building property. Termite to 44 treatment itself is In the absence of any evidence of direct physical damage to previously treated building property by or from flood such that retreatment of necessary, the insured property is Davis has no colorable claim to coverage under Coverage A.22 Termite treatment does not fall within the scope of any of the three other Coverage parts of the SFIP.23 Moreover, the SFIP 22 The Court expresses no opinion as to whether coverage would respond for post-flood re-treatment of previously treated building property, but in the absence of any evidence of prior treatment, is that clear an initial, preventative treatment is not it covered under Coverage A. 23 Coverage B of the SFIP provides for coverage with respect to direct physical C.F.R. pt. 61 loss app. by or A(l), from flood to personal art. III(B). Coverage provides for coverage with respect to debris avoidance measures (e.g., sandbags, pumps), - 31 - property. C of the 44 SFIP removal, flood loss removal of insured expressly excludes coverage for economic losses. ("We only pay means you for direct that we do not pay you for loss . . . by or from art. V(A)(7) flood, which [a]ny other economic loss suffer."). Accordingly, of physical Id. material fact the Court FINDS that there is no genuine dispute with post-flood termite Nationwide is issue, least respect to treatments. entitled to Davis's The judgment claim Court as a for coverage further matter FINDS of law that on this as the SFIP provides no coverage for termite treatments, in the absence of any direct physical of at damage to previously treated building property by or from flood. 3. Vapor Barrier Davis contends that Nationwide improperly denied his claim for coverage with respect to the removal and replacement of a vapor barrier located on the earthen floor of the crawl space below his home.24 Davis argues that the vapor barrier was necessarily removed property to a place of safety, and condominium loss assessments. Id. art. III(C). Coverage D of the SFIP provides for coverage with respect to the increased costs of repair or reconstruction of flood-damaged buildings incurred due to compliance with state or local floodplain management laws. id. art. Ill(D). 24 It is the Court's understanding that a vapor barrier may be installed across a crawl space floor to prevent soil moisture from a vapor migrating into the crawl space, but that in some cases, barrier may also be installed across the "ceiling" of a space, and covering the joists beneath the elevated floor crawl any insulation installed between them, to further insulate the floor above. See generally U.S. Dep't of Energy, Energy Savers: Crawl Space Moisture Control, http://www.energysavers.gov/your_home/ insulation_airsealing/index.cfm/mytopic=11780 - 32 - (last updated Feb. 9, and replaced space and to clean to permit therefore covered as the SFIP. Davis out debris and salt the ground below the "clean-up" pursuant to Article III (A)(8)(b) of of Mot. for Summ. and that crawl is in Supp. dry out, from it PL's Mem. to water J. 3, ECF No. 49. further argues that the vapor barrier serves to protect the lowest elevated floor of his dwelling presumably by keeping the crawl The Court notes that from moisture space itself dry. the vapor barrier is and mold, See id. clearly below the lowest elevated floor of an elevated post-FlRM building, and that it is not one of the several specified types of property for which limited coverage is afforded by Article III(A)(8). pt. 61 app. A(l), art. Ill(A) (8) (a) . See 44 C.F.R. Nevertheless, the limited coverage afforded by the SFIP to items of property below the lowest elevated floor of an elevated post-FIRM building includes coverage for the cost contends that necessary crawl to of "clean-up." removal and accomplish See id. art. replacement covered of Ill (A) (8) (b) . the "clean-up" vapor with Davis barrier respect to was the space beneath his home. The term "clean-up" dictionary definition of is not defined in the SFIP. "clean-up" is "an act or The standard instance of 2011); U.S. Dep't of Energy, Energy Savers: Crawl Space Insulation, http://www.energysavers.gov/your_home/insulation_airsealing/index. cfm/mytopic=11480 (last updated Feb. 9, 2011). In this case, it is clear that the vapor barrier at issue was installed across the crawl space floor. See PL's Mem. in Supp. of Mot. for Summ. J. 3, ECF No. 49; ECF No. supplemental report). 51 attach. - 33 - 5 (independent adjuster's cleaning." The Court Webster's Ninth New Collegiate Dictionary 247 further notes impurities, that "to clean" or extraneous matter." means Id. "to rid of in the act elevated removal of of of dirt, Pursuant to the SFIP provides coverage for costs incurred cleaning floor dirt, The Court concludes that the policy language at issue is clear and unambiguous. Article III(A)(8)(b), (1989). an flood-damaged property below elevated post-FlRM building, impurities, or extraneous the lowest including matter deposited whether removal the by flood waters .25 In this case, however, it is unclear and replacement of the vapor barrier installed across the earthen floor of the crawl space beneath Davis's home was necessary to the act of cleaning the facts demonstrate to crawl space its area. Neither entitlement submits only his own unsworn, to party of Mot. for Summ. J. 3 sufficient summary judgment. Davis conclusory allegations in support of his motion for summary judgment on this point. Supp. cites See PL's Mem. in ("The moisture barrier under the house had to be removed and replaced to clean the debris and salt water from under the house and [so that] fans to let the ground dry out."), air ECF No. could be 49. circulated with Nationwide does not 25 The Court notes that this is consistent with FEMA's own interpretation of the term "clean-up." See Insurance Coverage and Rates, 65 Fed. Reg. 60,758, 60,763 (Oct. 12, 2000) (to be codified at 44 C.F.R. pts. 59 & 61) ("'Clean-up' includes the removal of muck from the interior of the insured building, cleaning the floodsoiled surfaces of the insured building, and the removal of debris from the insured property."). - 34 - even address this issue in its brief, and the only evidence it submits is an independent adjuster's report containing a vague and conclusory covered," statement that the vapor barrier is "simply not apparently because the n[v]apor barrier is not insulation when on the ground/floor of the crawl space." ECF No. 51 attach. 5. Accordingly, the demonstrated that Court FINDS the floor constitutes covered the SFIP. of the law with respect damages with party to respect to has fact as the vapor barrier installed space beneath Davis's home pursuant to Article III(A) (8)(b) neither party is The Court further notes in of crawl "clean-up" As a result, matter of neither there is no genuine dispute of material to whether removal and replacement across that this entitled to of judgment as a issue. that Davis removal claims and a total replacement of of $760.00 the vapor barrier. 4. Foundation Vents Davis contends that Nationwide improperly denied his claim for coverage with respect to the repair and replacement of vents in the foundation walls Davis argues foundation cemented beneath that walls, into the foundation vents is these noting the lowest vents in are elevated an particular foundation walls, and floor integral that that of his part these of vents damage home. to the were these therefore covered as a specifically enumerated - 35 - item of property to which limited coverage is extended pursuant to Article Summ. III(A){8) J. 3, of ECF No. the SFIP. Pl.'s Mem. in Supp. of Mot. for 49. Pursuant to Article III(A)(8), limited coverage is afforded to specified types of property located below the lowest elevated floor of an elevated post-FIRM Building. the SFIP provides flood to other ... coverage [f]ootings, foundation walls for "direct Court this policy language vents this in home's question pt. 61 app. however, are his its own it indeed foundation walls. demonstrate only case, posts, and anchorage systems 44 C.F.R. In physical foundations, building." finds Among these covered categories, art. Mot. for Summ. foundation wall the wall and J. covered as summary conclusory was water of ("The [sic] by breaking salt 3 an air integral part support of a the The foundation walls building."), ECF judgment. in that are air 49. 36 - the facts Davis to submits support See Pl.'s Mem. of his in Supp. cemented in the from caused by the debris vents and anchorage No. - The of damaged and some were pulled away flood. or foundation sufficient allegations vents the has [sic] replaced by cutting them out and cementing them back in. are part piers, Ill(A)(8)(a)(17). the concrete which was the from required to support a unclear whether motion for summary judgment on this point. of or to be clear and unambiguous. is to by pilings, Neither party cites entitlement unsworn, A(l), loss to be The vents system required to Nationwide does not even address this is independent an issue in its brief, adjuster's conclusory statement covered," apparently elements." The constructed perimeter or Agency, the attach. that flood. Tech. substantially available Although 2, at this 6-7 FEMA 1, § 76). [hereinafter, openings See but regulation was 51 not Fed. also possible Tech. vents it to be is solid designed to be damaged or Fed. FEMA, fail Emergency Mgmt. Tech. and Walls Bull. promulgated until it Reg. that 1986, No. 1], may also flood openings. 30,290, pts. See National 30,296, 59, these vents Bull. No. 1, serve the latter rather whether this unclear at - 7. 37 - several is nonetheless possible that 60, 30,308 61, Davis's than 65, (Aug. 70, 73, are mere ventilation intended to facilitate air flow in the crawl FEMA, these is newly with in Foundation Walls (to be codified at 44 C.F.R. It require http://www.fema.gov/library/viewRecord.do?id=1579. Flood Insurance Program, & foundation to relieve hydrostatic 60.3(c)(5); after Davis's home was built, 1986) not spaces these walls Openings (2008) and "simply not buildings enclosing crawl 44 C.F.R. No. vague are regulations improved these vents are designed to serve as 25, are in the foundation walls See Bull. "vents a 5. current foundation walls Enclosures years 51 containing "foundation vents" that might otherwise cause during a of the report because notes with flood openings loads that ECF No. Court and the only evidence it submits brief the space area. suggests that former purpose, distinction is material, particularly in cemented into light the the demonstrated that whether by or from a matter of The Court allegation Court that these vents were FINDS that to foundation vents of Davis's home constitutes to As neither party has is no genuine dispute of material damage flood FIRM building. as there flood foundation walls the foundation walls. Accordingly, to of ... of neither party is law with respect further notes to into "direct physical foundation walls" a result, cemented fact an as the loss elevated post- entitled to judgment this issue. that Davis claims a total of $785.00 in damages with respect to repair and replacement of the foundation vents. IV. For the CONCLUSION foregoing reasons, Davis's Motion for Summary Judgment (ECF No. 48) is DENIED and Nationwide's Motion for Summary Judgment (ECF No. 50) is GRANTED in part and DENIED in part. the Court grants of Davis's claims replacement of crawl space vents in the The summary judgment except for beneath his home foundation walls Clerk is DIRECTED to Nationwide with respect damages the vapor barrier In particular, related to the the repair and removal and the floor of installed across and to all the replacement of of his home. to set a bench remaining claims. - 38 - trial date for Davis's The Clerk is and Order IT to Davis IS SO further DIRECTED to mail and to counsel a copy of this Opinion for Nationwide. ORDERED UNITED STATER MAGISTRATE JUDGE Norfolk, September Virginia \ , 2011 - 39 -
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