by R. Jason Richards

Page 8

In recent years, the doctrine of preemption has taken on a life of its own, becoming one of the most widely used and controversial defenses in litigation.¹ Derived from the Supremacy Clause of the U. S. Constitution, preemption is the constitutional notion that federal law can supersede or “preempt” any inconsistent state law.² In practice, preemption serves to disallow state court causes of action when the federal government regulates the product or service provided. For this reason, preemption is a favorite defense for industry defendants. By the same token, plaintiffs seek to avoid a finding of preemption for the purpose of availing themselves of state court remedies — such as fraud, misrepresentation, and unfair and deceptive trade practices — that often provide for more robust recovery.³

While preemption decisions involving ERISA,⁴ federal banks,⁵ and medical device litigation⁶ have captured the news headlines in recent years, the devastation left behind by the hurricanes along the Gulf Coast in 2004 and 2005 has spawned a renewed interest in the preemption controversy as it relates to flood policies. This debate stems from the federal regulation that provides for exclusive federal court jurisdiction on “all disputes arising from the handling of any claim” under the Standard Flood Insurance Program (SFIP).⁷

But what does “handling of any claim” mean in this context? Does it prohibit state courts from hearing cases relating to claims of negligence or misrepresentation arising from the procurement of a flood policy? For example, assume an insurance agent selling a flood insurance policy tells a customer that she cannot obtain flood insurance for her home because she rents rather than owns the property. If the agent is mistaken, and flood insurance can be sold to renters, is the agent’s mistake actionable? Or, suppose a customer seeking flood insurance tells her agent at the time of purchase that she wants the maximum amount of coverage she can obtain for her dwelling. Despite the agent’s assurances that she will provide the requested coverage, the agent fails to do so. Does the fact that the agent failed to procure the requested coverage — leaving the policyholder uninsured or underinsured at the time of loss — preclude an action against the agent for negligent procurement, misrepresentation, or similar action? Are these the type of claims intended by Congress to warrant exclusive federal court jurisdiction?

In March 2007, Judge Collier of the U. S. District Court for the Northern District of Florida shed some light on this debate, becoming the first federal court judge in the state to recognize a difference between “policy procurement” and “claims handling” issues as it relates to flood insurance. The case, Greenfield v. Hickey, et al., Case No. 3:05cv470 (N.D. Fla. March 19, 2007),⁸ provides important guidance to courts and attorneys in Florida and elsewhere on the reach of federal preemption in cases involving the National Flood Insurance Program (NFIP).

A Brief History of Federal Flood Insurance
The National Flood Insurance Act (NFIA) was adopted in 1968 as a reaction to private insurers charging unreasonably large premiums for flood insurance.⁹ This act established the NFIP and made flood insurance affordable to the general public.¹⁰ From 1968 to 1977, the program operated primarily through a pool of private insurers under the supervision of, and with financial support from, the Department of Housing and Urban Development. In 1977, however, this relationship ended and the Federal Emergency Management Association (FEMA) became primarily responsible for its operation.¹¹

Under the NFIA, flood insurance policies can be issued by FEMA directly or by private insurers called write your own (WYO) companies, who issue flood policies in their own names, collect premiums under segregated accounts, and pay claims.¹² In the event there are insufficient funds in the segregated accounts to pay potential outstanding claims, WYO companies must cease writing flood insurance altogether.

Policies issued under the NFIP are single-risk insurance policies that insure against all “direct physical loss by or from flood.” This requires evidence of physical changes to the structure and/or personal contents, directly caused by flood.¹³ The SFIP is promulgated as a regulation in the Federal Register and is annually published at 44 C.F.R. Pt. 61, App. A(1). Part 61 of Title 44 of the Code of Federal Regulations describes the limits of coverage available under the NFIP.¹⁴ Insurance is available for structures and for contents, whether the customer is an owner or renter.¹⁵

Lawsuits arising under federal flood polices — whether issued by FEMA or WYO insurers — are different from typical insurance cases because such claims must be brought in federal court applying federal law within one year of denial of the claim, whereas most litigation arising out of homeowners’ claims are brought in state court.¹⁶ The jurisdiction and statute of limitations for claims made under flood policies are set out in 42 U.S.C. §4072: “Upon the disallowance . . . of any . . . claim . . . the claimant, within one year . . . may institute an action . . . on such claim in the United States district court . . . , and original exclusive jurisdiction is hereby conferred upon such court to hear and determine such action.”¹⁷

The regulations further provide: “This policy and all disputes arising from the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.), and federal common law.”¹⁸

Federal Preemption at a Glance
Under the Supremacy Clause, the “Constitution and the laws of the United States. . . shall be the supreme law of the land . . . anything in the constitutions or laws of any State to the contrary notwithstanding.”¹⁹ In other words, any federal law trumps any conflicting state law. In fields traditionally occupied by the states, such as insurance regulation, there is a strong presumption against federal preemption.²⁰ Thus, there must be “clear” evidence that Congress intended that preemption apply.²¹

Preemption can be either express or implied. In cases of express preemption, Congress explicitly defines the manner in which its enactments preempt state law and the only issue for courts is whether the challenged state law is one that the federal law is intended to preempt.²²

Implied preemption, sometimes referred to as “field” preemption or “conflict” preemption, refers to situations in which state law “regulates conduct in a field that Congress intended the [f]ederal [g]overnment to occupy exclusively.”²³ Implied preemption occurs 1) “where it is impossible for a private party to comply with both state and federal requirements,” or 2) where state law would frustrate the objectives of Congress’ federal legislation.²⁴

Implied preemption implicates difficult questions, as courts must look beyond the express terms of the federal law to determine whether Congress has “occupied the field” in which the state is attempting to regulate. However, such intent can sometimes be inferred when federal law is pervasive or when federal interest dominates.²⁵ Even when it is relatively certain that Congress intended to occupy the field, state law is preempted only to the extent that it actually conflicts with federal interests.²⁶ This is consistent with the Supreme Court’s view that “a court should not find preemption too readily in the absence of clear evidence of a conflict.”²⁷

The Facts of Greenfield v. Hickey, et al.
On September 16, 2004, Hurricane Ivan, a category 4 hurricane, caused substantial flood and wind damage to hundreds of homes and businesses along the Gulf Coast of the United States. The plaintiff in Greenfield sustained both wind and flood damage as a result of Ivan, and made a claim with her insurer (Nationwide Insurance Company of Florida) for the loss. However, Nationwide denied her flood contents claim on the basis that she did not have contents coverage.²⁸ The facts of the case revealed that, while Greenfield’s insurance agent provided her with a wind and flood policy in 2003, the policy issued did not include flood insurance for the contents of her home.²⁹ Greenfield failed to notice the coverage error, however, because she did not read the insurance policy’s declarations page mailed to her by her insurance carrier.

Greenfield’s State Court Action
Following the denial of her claim, Greenfield sued her insurance agent and Nationwide in state court. The complaint alleged that, despite her request that she receive “full coverage” under the policy, her agent failed to procure flood contents coverage, leaving her partially uninsured for her flood losses.³⁰ The complaint included claims for misrepresentation, promissory estoppel, negligence, breach of fiduciary duty, breach of implied contract, and negligent hiring, retention, and supervision of an employee.³¹

The defendants moved to dismiss, arguing that the federal courts have original exclusive jurisdiction to hear all disputes relating to the provision of flood insurance under the NFIP.³² In support, the defense relied upon a state court decision by Florida’s First District Court of Appeal, Seibels Brice Ins. Co. v. Deville Condominium Ass’n, 786 So. 2d 616 (Fla. 1st DCA 2001).

In Seibels, a condominium home-owner purchased a flood insurance policy under the NFIP from his independent insurance agent.³³ Thereafter, the federal flood insurance regulators increased the maximum coverage for residential condominiums, but the insurance company’s agent did not notify the plaintiff of the availability of this additional coverage.³⁴ Flooding from Hurricane Opal then damaged the plaintiff’s residence, and he made a claim for the damage.³⁵ After not being allowed an adjustment to effect an increase in coverage, the plaintiff brought an action against two flood insurers for negligent procurement and breach of contract.³⁶ The flood insurers moved to dismiss the action for lack of subject matter jurisdiction, claiming that state courts do not have jurisdiction to hear cases arising under the NFIP. In arguing against federal court jurisdiction, the plaintiff asserted that the NFIA does not prohibit state courts from hearing cases arising out of an insurer’s claims handling practices. Plaintiff further claimed that Congress specifically contemplated that state law actions of this kind could be brought because the NFIA failed to include any provision for holding agents harmless for their errors or omissions in writing flood insurance coverage.³⁷

Recognizing the case as a “matter of first impression for any Florida appellate court,” the Seibels court analyzed the federal statute as well as the various state and federal court cases that had considered the issue. In doing so, the court concluded that the “plain language of the NFIA, the legislative history of the NFIA, the special nature of the NFIP, the . . . reasoning [of state court decisions] and the federal cases which have squarely decided this issue,” clearly evidences an intent by Congress to occupy the field of flood insurance.³⁸ “Surely, this orphaning of the ‘child of Congress’ to 50 state court jurisdictions was not the intention of Congress in establishing ‘a pervasive and comprehensive scheme of federal regulations setting forth the rights and responsibilities of insureds and insurers under the NFIP,’” said the court.³⁹

On the authority of Seibels, Nationwide claimed that all of Greenfield’s state law claims — whether sounding in contract, tort, or otherwise — were preempted.⁴⁰ Greenfield countered that her claims neither involved the interpretation of the flood statute nor a dispute of a flood “claim.”⁴¹ Rather, her claims derived strictly under state tort law arising from errors committed by her insurance agent in the procurement phase of obtaining coverage — that is, conduct occurring outside of the policy itself.⁴² Consequently, much like the plaintiff in Seibels, she argued there was no reason to believe that federal funds would be paid out if the defendants were held liable because the flood statute did not allow reimbursement for a WYO agent’s errors and omissions.⁴³

The state court rejected Greenfield’s argument, reasoning that even if Greenfield was not provided with the flood contents coverage requested, she was provided with a flood policy, and all coverages (or lack of coverages) were clearly listed on the insurance policy’s declarations page of the policy, of which she was provided a copy but failed to read. The court, thus, held that Seibels was controlling and dispositive on the issue of subject matter jurisdiction and served to preempt Greenfield’s state law claims, regardless of whether they were pled in contract, tort or otherwise.⁴⁴

Greenfield’s Federal Court Action
Her state court claims having been dismissed, Greenfield refiled her complaint in the U.S. District Court for the Northern District of Florida. In response, Nationwide filed a motion for summary judgment, arguing that Greenfield’s claims were barred by reason of her failure to read the policy or the policy coverages outlined in her insurance policy’s declarations page (which is considered part of the policy itself).⁴⁵ Nationwide’s argument was not unique; it had been used as a basis for dismissing federal flood insurance claims in other federal courts across the country.⁴⁶ Most of the cases in which this argument had been successfully argued relied upon two landmark Supreme Court decisions: Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947), and Heckler v. Community Health Services of Crawford Co., 467 U.S. 51 (1984). These cases stand for the proposition that all citizens seeking to benefit from a federal program are charged with knowledge of the law regarding the program, regardless of any agent’s representations to the contrary. While neither Merrill nor Heckler involved flood insurance, courts routinely use the general principles laid down in these cases as a basis for dismissing claims on the basis of preemption.

In Merrill, the plaintiff sued the Federal Crop Insurance Corporation (FCIC) based on the alleged misrepresentations of the FCIC’s agent that their entire crop was covered by federal crop insurance when, in fact, it was not.⁴⁷ In refusing coverage for the farmer, the Supreme Court found that the farmer was not justified in relying on the misrepresentations of the government agent because the wheat regulations specifically limited the liability of the government under such circumstances.⁴⁸ The Court noted that an insured is charged with knowledge of the policy provisions, which are published in the Federal Register, “regardless of the actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.”⁴⁹ This is true even when the insured claims that he or she did not receive a copy of the policy.

In Heckler, the Court expanded upon its Merrill decision. Those who seek to participate in federal insurance programs, the Court said, do so under the legal duty to “familiarize” themselves with the requirements of those programs.⁵⁰ The Court explained that those who “seek public funds [must] act with scrupulous regard for the requirements of the law.”⁵¹ For this reason, a party “could expect no less than to be held to the most demanding standards in its quest for public funds.”⁵²

Nationwide further relied upon two unpublished federal court decisions from Pennsylvania and Louisiana, which applied Merrill and Heckler to preempt flood policy procurement claims. In Deverant v. Selective Ins. Co. Inc., 2004 WL 1171333 (E.D. Pa. March 25, 2004), the plaintiff alleged fraud and negligent misrepresentation in the procurement of her flood policy. Specifically, she alleged that her agent misrepresented the process by which she was to make a claim for damage under the SFIP. The court held that the plaintiff’s reliance on her insurance agent’s misrepresentations was unreasonable because the insured was charged with knowledge of the terms of the SFIP, notwithstanding the oral representations of the agent. The court reasoned as follows:

These fraud and negligent misrepresentation allegations are insufficient. They do not evince a critical element of both claims — reasonable reliance — in that an insured is charged by law with constructive knowledge of the contents of the SFIP, which are published at 44 C.F.R. Part 61, Appendix A, 42 U.S.C. §§4013 and 4019. Even assuming, as the amended complaint asserts, that defendant’s agents intentionally misrepresented the scope of the available coverage under the SFIP and the procedure for making a claim, plaintiff was not entitled to rely on those misrepresentations.⁵³

Similarly, in Larmann v. State Farm Ins. Co., 2005 WL 357191 (E.D. La. Feb. 11, 2005), a federal judge in New Orleans dismissed all state law claims against an insurance company and the company’s agent who had allegedly misrepresented the scope of coverage available under the SFIP. The plaintiffs asserted they should have been paid more money under their flood policy because the agent “assured them that their home was sufficiently covered for the lower levels of their house.”⁵⁴ The defendants countered that they were not required to pay for the flood damage to the lower level of the house because property below the base flood elevation was specifically excluded under the terms of the SFIP.⁵⁵ In finding that the plaintiffs’ claims were preempted, the Larmann court stated: “[A] citizen seeking to benefit from a federal benefit program is charged with the responsibility of familiarizing himself with the requirements of that program.”⁵⁶

On the basis of this authority, Nationwide asserted that Greenfield’s failure to read her policy was immaterial because she was presumed to know what it said and what coverages she had or did not have. For that reason, any reliance on the agent’s alleged statements that were contrary to the actual terms of the flood policy were unreasonable as a matter of law.

Greenfield countered that the NFIA contains no express preemption of state law tort claims for errors and omissions committed by WYO carriers related to the procurement of flood policies. Nor was there any evidence that Congress intended to occupy the field of flood insurance because there was no actual conflict between the state law claims and the federal flood regulations. In fact, the NFIA expressly provides, in §4081(c), that FEMA “may not hold harmless or indemnify an agent broker for his or her error or omission.”⁵⁷ This implies that Congress intended that WYO insurers remain liable for their own tortious conduct. It also means that federal funds are not at stake. Additionally, Greenfield claimed that the Supreme Court’s decisions in Merrill and Heckler were not dispositive, because neither case involved a claim brought against a private insurer. As the Merrill court specifically recognized, “we assume that recovery could be had against a private insurance company [based on the misrepresentations of an agent]. But the [c]orporation is not a private insurance company.”⁵⁸ Finally, Greenfield argued, her failure to read the terms of the insurance policy is not a defense to an action for misrepresentation under Florida law.⁵⁹

Judge Collier’s Decision
Judge Collier, rejecting the defendants’ argument that the claims were preempted, recognized that district courts across the country have “uniformly drawn a distinction” between cases involving claims handling, which are preempted, and those involving the actual procurement of coverage, which are not. Citing the seminal case of Spence v. Omaha Indem. Ins. Co., 996 F.2d 793 (5th Cir. 1993), among others,⁶⁰ the court observed that “[c]laims of tortious misrepresentation by an agent during the procurement of a policy, since they are not tied to the contract itself, are not preempted.”⁶¹ “The underlying rationale is that, because government funds are not at stake when WYO insurers are sued for procurement fraud, these actions do not impede the objectives of the federal statute.”⁶²

In Spence, the plaintiff obtained a flood policy from a WYO insurer. The insured suffered flood damage and filed a claim with his carrier. After the WYO carrier denied the insurer’s claim based on an exclusion in the policy, the insured brought state law claims for breach of contract and fraud. His fraud claim was based on alleged misrepresentations made by the insurer concerning the scope of insurance provided under the NFIP.⁶³ The plaintiff asserted that he bought the policy in reliance on representations made by Omaha Indemnity’s agents that the basement of his residence would be covered for flood damage when, in fact, it was not.

The Fifth Circuit found that the breach of contract action was time barred, but not the state law claim for fraudulent misrepresentation. In allowing the plaintiff to proceed on the fraud claim, the court distinguished between claims that arise out of the contract and those that are extracontractual in nature. The court observed that while the plaintiff’s breach of contract claim was tied to the terms of the policy, the action for fraud was not. Contractual claims are, in effect, actions against FEMA, and federal funds must be paid in the event the insurer is found liable. Conversely, in an action for fraud, the agreement between the WYO insurer and FEMA does not permit the WYO insurer to be indemnified from federal funds for its own fraudulent activity.⁶⁴ Further, FEMA accords “substantial autonomy” to its private insurers in policy procurement and claims adjustment.⁶⁵ Finally, regulatory language provides that “WYO companies shall not be agents of the federal government.”⁶⁶ For all those reasons, the federal interest in seeing preemption apply in extracontractual claims is much less than when the claims arise out of the policy itself. The Spence court, thus, concluded that while federal law governs claims under the NFIP’s flood insurance policies, federal law does not control in actions for tortious misrepresentations against NFIP insurers.⁶⁷

Having determined that the claims were not derived from the contract itself, Judge Collier found that no federal funds were at stake.⁶⁸ “Nor is this a case in which [Greenfield’s] constructive knowledge of the SFIP contract would affect the outcome of the case since she has no dispute over any contractual terms or any federally imposed policy limitations,” said the court.⁶⁹ Rather, Greenfield merely asserts that her agent was at fault for failing to procure the proper coverage, and Florida law clearly supports her claim.⁷⁰ Relying upon what he deemed the “sound” reasoning of a “growing legion of district courts,” Judge Collier found subject matter jurisdiction lacking.⁷¹ Without any other basis for federal court jurisdiction, the court denied as moot Nationwide’s motion for summary judgment and dismissed the case.⁷²

With her case having been dismissed for lack of subject matter jurisdiction by both the state and federal courts, Greenfield, on the authority of Judge Collier’s decision, filed a motion to re-open her state court claim. She argued that fundamental due process and matters of judicial equity dictated that she be allowed to pursue her claim. The state court judge granted the motion. The parties subsequently settled the case, bringing an end to a jurisdictional debate lasting more than two-and-a-half years.

Other Federal Court Decisions
Numerous other federal court decisions bearing on the controversy over policy procurement versus claims handling have been decided in recent years. The cases holding that procurement claims under the NFIA are not preempted invariably trace back to the Fifth Circuit’s decision in Spence or its progeny.

For instance, in Houck v. State Farm Fire and Cas. Co., 194 F. Supp. 2d 452 (D.S.C. 2002), the plaintiffs brought a cause of action against a WYO insurance company alleging, among other things, breach of contract and negligent misrepresentation in relation to the procurement of a flood insurance policy. The WYO company removed the case to federal court and the plaintiffs sought remand. Although the plaintiffs alleged breach of contract, they did not allege breach of the terms of the flood insurance policy. Instead, they alleged that the WYO company improperly steered them to purchase flood coverage that was more expensive and in excess of what they needed. After a lengthy analysis, including consideration of the WYO company’s reliance on the First Circuit’s decision in Seibels, the district court granted the plaintiffs’ motion to remand the case to state court. In doing so, the court recognized the “critical distinction” made by the court in Spence with respect to claims seeking recovery under the flood insurance policy and those arising from alleged misrepresentations made during the procurement of the policy.⁷³ Thus, because the “instant case only involves state law causes of action relating to policy procurement” rather than issues relating to policy procurement and coverage issues, federal jurisdiction was lacking.⁷⁴ The court further distinguished between cases that directly involve federal funds from those that do not. Unlike lawsuits that “directly involve federal funds and the extensive regulatory regime” under the NFIP, procurement disputes present only a “slight risk that the federal funds or federal regime are implicated.”⁷⁵ The court concluded that “while the NFIP is central to this case factually, the legal issues in this case deal predominately with state law.”⁷⁶

Similarly, in Seruntine v. State Farm Fire & Cas. Co., 444 F. Supp. 2d 698 (E.D. La. 2006), the defendant insurer and insurance agents’ motion to remove a claim brought in Louisiana state court was denied. Recognizing that courts within the district had uniformly held that claims relating to the procurement of flood policies do not give rise to federal court jurisdiction, the court found no justifiable reason to depart from these decisions.⁷⁷

Judge Senter reached a similar result against State Farm a few months later in Cossey v. State Farm Fire & Cas. Co., 2006 WL 3694602 (S.D. Miss. Dec. 13, 2006). There, the plaintiff brought suit to enforce an alleged agreement he had with his agent to change one of his insurance policies to provide for flood contents coverage up to the policy limit. The plaintiff sued both State Farm and the agent involved. State Farm sought to remove the case to federal court based on misjoinder of a nondiverse party. In finding that federal court jurisdiction was lacking, the court observed that the “relevant cases draw a sharp distinction” between claims based on policy procurement and claims handling.⁷⁸

Although several federal courts have suggested or held that procurement-based claims are preempted by the NFIA,⁷⁹ a review of the most recent decisions clearly shows that the emerging trend among federal courts is to find that procurement-based claims are not preempted by the NFIA.⁸⁰

Conclusion
The Greenfield case concerns the threshold question of federal court jurisdiction in matters involving the NFIP. This decision is important for what it says and what it does. Following the reasoning provided in Spence, the decision recognizes a distinction between the adjustment or administration of a flood insurance policy, which falls within the federal court’s exclusive jurisdiction, and misconduct in the procurement of a flood insurance policy, which does not. In doing so, the court joins the majority line of federal cases, including federal courts sitting in Louisiana,⁸¹ Mississippi,⁸² Texas,⁸³ South Carolina⁸⁴ and Maryland,⁸⁵ all of which have been handed down since the First District’s opinion in Seibels was decided in 2001. At the same time, the Greenfield decision creates a jurisdictional quagmire between a state court and federal court sitting within the same jurisdiction. This is because Seibels cannot be reconciled with Greenfield. Each case reaches sharply different conclusions based on the same legal principles. In fact, the Seibels court specifically rejects the legal authority cited and approved by the Greenfield court in articulating its decision.⁸⁶

While it is difficult to know whether the First District would decide Seibels differently today, clearly the growing trend among federal courts is to recognize the distinction between “claims handling” and “policy procurement” as it relates to flood policies issued under the NFIP. Until this jurisdictional conflict is resolved, however, practitioners and judges alike should be cognizant of these divergent opinions, and practitioners in particular should be cognizant of the costly and time-consuming jurisdictional battle that will likely ensue in such cases.

¹ Carmel Sileo, State Legislators Call Preemption a Growing Problem, 42 Trial 18 (June 2006).
² U.S. Const. art. VI, Cl. 2. The Supremacy Clause provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”
³ Craig Collins, Flood Insurance Is Not All Created Equal, 74 N.D. L. Rev. 35, 36 (1998).
⁴ See, e.g., Aetna Health Inc. v. Juan Davila, 542 U.S. 200 (2004).
⁵ See, e.g., Moskowitz v. Washington Mutual Bank, FA, 329 Ill. App. 3d 144 (2002).
⁶ See Donna B. DeVaney & Patrick A. Hamilton, The 10,000 Pound Gorilla: Federal Preemption in Class III Medical Device Litigation, 80 Fla. B. J. 52 (Oct. 2006).
⁷ The SFIP provides: “This [flood] policy and all disputes arising from the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.), and Federal common law.” 44 C.F.R. Part 61, App. A(1) art. IX.
⁸ The author was counsel for the plaintiff in Greenfield v. Hickey, et al., which is the subject of this article.
⁹ 42 U.S.C. §§4001-129.
¹⁰ See Peal v. N.C. Farm Bureau Mut. Ins. Co., 212 F. Supp. 2d 508, 512-13 (E.D.N.C. 2002).
¹¹ 42 U.S.C. §4071. See generally Berger v. Pierce, 933 F.2d 393 (6th Cir. 1991).
¹² See id.; 44 C.F.R. §§61.13(f), 62.23(a); C.F.R. Pt. 62, App. A, arts. II(E), III(D), III(E).
¹³ 44 C.F.R. Pt. 61 App. A(1), art. II, B, 12.
¹⁴ See 44 C.F.R. §61.4.
¹⁵ See id. at §61.3.
¹⁶ Collins, Flood Insurance Is Not All Created Equal, 74 N.D. L. Rev. at 36.
¹⁷ See 44 C.F.R. §62.22.
¹⁸ 44 C.F.R. Pt. 61, App. A(3), art. 10.
¹⁹ U.S. Const. art. VI, Cl. 2.
²⁰ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
²¹ Id.
²² English v. General Elec. Co., 496 U.S. 72, 78 (1990).
²³ Id. at 79.
²⁴ Id.
²⁵ Id.
²⁶ Id.
²⁷ Geier v. American Honda Motor Co., 529 U.S. 861, 885 (2000).
²⁸ Greenfield, No. 3:05-cv470, at p. 2.
²⁹ Id.
³⁰ Complaint, at 3, Nancy Greenfield v. Dave Hickey, individually; DHL Enterprises, Inc.; and Nationwide Insurance Company of Florida, First Judicial Circuit, Santa Rosa County, Florida (No. 05-314).
³¹ See generally id.
³² Defendants’ Memorandum of Law in Support of Their Motion to Dismiss Complaint, at 2, Nancy Greenfield v. Dave Hickey, individually; DHL Enterprises, Inc.; and Nationwide Insurance Company of Florida, First Judicial Circuit, Santa Rosa County, Florida (No. 05-314).
³³ Seibels, 786 So. 2d . at 617.
³⁴ Id. at 618.
³⁵ Id.
³⁶ Id.
³⁷ Id. at 619.
³⁸ Id. at 623.
³⁹ Id.
⁴⁰ Defendants’ Memorandum of Law In Support of Their Motion to Dismiss Complaint, at 3, Nancy Greenfield v. Dave Hickey, individually; DHL Enterprises, Inc.; and Nationwide Insurance Company of Florida, First Judicial Circuit, Santa Rosa County, Florida (No. 05-314).
⁴¹ Plaintiff’s Opposition to Defendants’ Motion to Dismiss Complaint, at 3-4, Nancy Greenfield v. Dave Hickey, individually; DHL Enterprises, Inc.; and Nationwide Insurance Company of Florida, First Judicial Circuit, Santa Rosa County, Florida (No. 05-314).
⁴² Id. at 4.
⁴³ Id.
⁴⁴ Order, at 1, Nancy Greenfield v. Dave Hickey, individually; DHL Enterprises, Inc.; and Nationwide Insurance Company of Florida, First Judicial Circuit, Santa Rosa County, Florida (No. 05-314).
⁴⁵ 44 C.F.R. Pt. 61, App. A(1) §10.
⁴⁶ See, e.g., Chatmar, Inc. v. Bankers Ins. Co., 2005 WL 588511 (N.D. Cal. Feb. 11, 2005); Kerr v. FEMA, 113 F.3d 884 (8th Cir. 1997).
⁴⁷ Merrill, 332 U.S. at 382-83.
⁴⁸ Id. at 385.
⁴⁹ Id. at 384-385.
⁵⁰ Heckler, 467 U.S. at 64.
⁵¹ Id. at 63.
⁵² Id.
⁵³ Deverant v. Selective Ins. Co., Inc., 2004 WL 1171333 at *1 (E.D. Pa. March 25, 2004).
⁵⁴ Larmann v. State Farm Ins. Co., 2005 WL 357191 *1 (E.D. La. Feb. 11, 2005).
⁵⁵ Id.
⁵⁶ Id. at *4 (citing Heckler, 467 U.S. at 63).
⁵⁷ 42 U.S.C. §4801(c).
⁵⁸ Merrill, 332 U.S. at 383.
⁵⁹ See Blumberg v. American Fire & Caus. Co., 51 So. 2d 182, 184 (Fla. 1951) (insured’s failure to read policy does not bar recovery); Providence Washington Insurance Co. v. Rabinowitz, 227 F.2d 300, 302 (Fla. 5th Cir. 1955) (citing Blumberg for same proposition). The 11th Circuit has adopted as binding precedent all of the decisions of the former Fifth Circuit rendered prior to October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
⁶⁰ See Landry v. State Farm Fire & Cas. Co., 428 F. Supp. 2d 531 (E.D. La. 2000); Davis v. Travelers Prop. & Cas. Co., 96 F. Supp. 2d 995 (N.D. Cal. 2000).
⁶¹ Greenfield, No. 3:05-cv470, at 3.
⁶² Id. at 3-4.
⁶³ Spence v. Omaha Indem. Ins. Co., 996 F.2d 793, 794 (Fla. 5th Cir. 1993).
⁶⁴ Id. at 796 (citing 44 C.F.R. §62.23(a)).
⁶⁵ Id. (citing 44 C.F.R. §62.23(e)).
⁶⁶ Id. (citing 44 C.F.R. §62.23(g)).
⁶⁷ Spence, 996 F.2d at 796.
⁶⁸ Greenfield, No. 3:05-cv470, at 4.
⁶⁹ Id.
⁷⁰ Id.
⁷¹ Id.
⁷² Id. at 4-5.
⁷³ Houck v. State Farm Fire and Cas. Co., 194 F. Supp. 2d 452, 461 (D.S.C. 2002).
⁷⁴ Id. at 468.
⁷⁵ Id. at 464-465.
⁷⁶ Id. at 469. See also Waltrip v. Brooks Agency, 2006 WL 268880, at *3-4 (E.D. Va. Feb. 1, 2006) (“[F]ollowing the persuasive reasoning provided in Houck, the court determines that the legal issues in dispute implicate primarily state law because plaintiffs’ allegations do not involve a claim under an SFIP, the interpretation of an SFIP, or a dispute related to the NFIP rules and regulations, but rather primarily focus on the procurement of an insurance policy and the alleged wrongful conduct of the agent.”).
⁷⁷ Seruntine v. State Farm Fire & Cas. Co., 444 F. Supp. 2d 698, 701 (E.D. La. 2006).
⁷⁸ Cossey v. State Farm Fire & Cas. Co., 2006 WL 3694602, at *4 (S.D. Miss. Dec. 13, 2006).
⁷⁹ See, e.g., Scritchfield v. Mutual of Omaha Ins. Co., 341 F. Supp. 2d 675, 680 (E.D. Tex. 2004) (suggesting procurement based claims would be preemption under federal law); Moffett v. Computer Sciences Corp., 457 F. Supp. 2d 571, 587-588 (D. Md. 2006) (claims of fraud in the procurement of NFIP policies were barred by reason of conflict preemption); Mason v. Witt, 74 F. Supp. 2d 955, 963 (E.D. Cal. 1999) (holding that state-law claims against insurer were preempted by NFIA).
⁸⁰ See Reeder v. Nationwide Mut. Fire Ins. Co., 419 F. Supp. 2d 750, 760 (D. Md. 2006) (reviewing federal court decisions and finding that most hold procurement claims are not preempted by the NFIA).
⁸¹ See, e.g., Seruntine v. State Farm Fire & Cas. Co., 444 F. Supp. 2d 698 (E.D. La. 2006).
⁸² Cossey v. State Farm Fire & Cas. Co., 2006 WL 3694602 (S.D. Miss. Dec. 13, 2006).
⁸³ DeLoach v. Hood, 2003 WL 21077411, at *2 (W.D. Tex. April 22, 2003).
⁸⁴ Houck v. State Farm Fire and Cas. Co., 194 F. Supp. 2d 452, 463 (D.S.C. 2002).
⁸⁵ Reeder v. Nationwide Mut. Fire Ins. Co., 419 F. Supp. 2d 750, 763 (D. Md. 2006).
⁸⁶ See, e.g., Davis v. Travelers Prop. & Cas. Co., 96 F. Supp. 2d 995 (N.D. Cal. 2000).

R. Jason Richards is an associate at Aylstock, Witkin, Kreis & Overholtz, PLLC, in Pensacola. Mr. Richards holds two baccalaureate degrees from the University of Alabama at Birmingham, a master’s degree from the University of Colorado, a law degree from the John Marshall Law School, and a master of laws degree from DePaul University.