Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31212

Summary Calendar

CHRIS V WIENTJES; JO ANN C WIENTJES

Plaintiffs - Appellants

v.

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana 

USDC No. 2:07-CV-3762

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Appellants Chris and Jo Ann Wientjes appeal the district court’s grant of

summary judgment in favor of Appellee American Bankers Insurance Company

of Florida on their claims for additional flood proceeds under their Standard

Flood Insurance Policy. The district court concluded that the Wientjeses were

not entitled to additional benefits due to their failure to submit a sworn proof of

loss with respect to the specific damages at issue. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2009

Charles R. Fulbruge III

Clerk
No. 08-31212

2

The Wientjeses’ dispute with their flood insurance carrier is for damages

to their Metairie, Louisiana home caused by Hurricane Katrina. They received

both an initial and a supplemental payment from American Bankers. The

Wientjeses then sought additional benefits for damages to their foundation and

to the home’s exterior plywood sheathing. American Bankers denied this last

claim. The Wientjeses filed suit seeking its payment. Relying on the Wientjeses’

failure to submit a sworn proof of loss on the foundation and plywood sheathing

damage, the district court granted summary judgment in favor of American

Bankers. The Wientjeses timely appealed.

We review a grant or denial of summary judgment de novo, applying the

same standard as the district court. Noble Energy, Inc. v. Bituminous Cas. Co.,

529 F.3d 642, 645 (5th Cir. 2008). Summary judgment is proper when the

“pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

The Wientjeses argue that they were not required to submit a proof of loss

prior to filing suit on their claims. Initially, they argue that a press release

issued by the Federal Emergency Management Agency on September 20, 2005,

waived the proof-of-loss requirement for recovery of damages caused by

Hurricane Katrina. That FEMA press release stated that the National Flood

Insurance Program “has waived the usual requirement that the policyholder

must submit a proof-of-loss and instead where the policyholder agrees, will rely

on a report by the claims adjuster.” 

The Wientjeses allege that this statement is an unconditional waiver of the

ordinary proof-of-loss requirement. In their view, a report by the claims adjuster

is a proper substitute for a sworn proof of loss, even if the carrier does not agree

to pay part of a submitted claim. Thus, because the initial adjuster’s report for

their house included repair estimates for foundation and plywood sheathing
No. 08-31212

3

damage, that report would satisfy the proof-of-loss requirement for their claims,

despite the fact that American Bankers decided not to pay those estimated

amounts. 

The Wientjeses also suggest that the adjuster’s report satisfies the

primary purpose of a proof of loss, which is to provide notice to the insurer of the

claim. In making this argument, the Wientjeses attempt to distinguish FEMA’s

September 2005 press release from a FEMA memorandum dated August 31,

2005, which waived the proof-of-loss requirement under some circumstances and

extended the time for filing a proof of loss under others. The Wientjeses admit

that the earlier memo did not contain a complete waiver of the proof-of-loss

requirement. Instead, the August memorandum provided that the homeowners

are to submit a proof of loss when they disagree with an adjuster’s decision:

In the event a policyholder disagrees with the insurer’s adjustment,

settlement, or payment of the claim, a policyholder may submit to

the insurer a proof of loss within one year from the date of the loss.

The proof of loss must meet the requirements of VII.J.4 of the SFIP

Dwelling or General Property Form . . . . If the insurer rejects the

proof of loss in whole or in part, the policyholder may file a lawsuit

against the insurer within one year of the date of the written denial

of all or part of the claim . . . .

The Wientjeses argue that the later press release takes precedence over

the prior FEMA memorandum. Yet the Wientjeses acknowledge that this court

has previously held that the August 2005 FEMA memo did not “render

permissive the requirement to file a proof of loss prior to filing suit.” Marseilles

Homeowners Condo. Ass’n, Inc. v. Fid. Nat’l Ins. Co., 542 F.3d 1053, 1057 (5th

Cir. 2008). Like the memo, the press release states that an adjuster’s report will

satisfy the ordinary proof-of-loss requirement only “where the policyholder

agrees.” The Wientjeses did not agree with American Bankers’s adjustment,

settlement, and payment of their claims. As such, they were required to submit

a timely proof of loss as a prerequisite to filing suit.
No. 08-31212

4

The Wientjeses next allege that if the proof-of-loss requirement has not

been waived, it deprives them of a meaningful opportunity to contest American

Bankers’s adjustment of their claims. The Wientjeses explain that the August

2005 FEMA memo requires the filing of a proof of loss within one year of the

date of the loss. An insurer could simply spend more than one year adjusting an

insured’s claims, thereby leaving the insured with no avenue to challenge its

adjustment decisions. That is what the Wientjeses claim happened. American

Bankers did not make a final coverage determination until May 9, 2007, more

than one year after the date of loss. That delay allegedly made it impossible to

comply with the one-year proof-of-loss requirement, as they did not know that

coverage for their foundation and exterior plywood sheathing damage would be

denied until more than a year after the loss occurred.

It is true that the Wientjeses did not receive notice of the final adjustment

of their claims until after the one-year deadline for filing a proof of loss had

passed. Importantly, though, they knew of their disagreement with the payment

of their claims well before that date. The initial adjuster’s report in December

2005 stated that the foundation damage was excluded from coverage under their

flood policy. The Wientjeses admit that the initial payment they received in

December 2005 did not include any amount for foundation repair or the repair

of the exterior plywood sheathing. Accordingly, by December 2005, the

Wientjeses knew of a disagreement regarding the payment of their claims. They

had ample opportunity to file a proof of loss within the one-year deadline. 

The Wientjeses next argue that application of the one-year proof-of-loss

requirement violates their constitutional rights, including their rights to equal

protection and due process. They argue that FEMA enforces the proof-of-loss

requirement arbitrarily, granting waivers to some, but not others. Such FEMA

conduct treats holders of federally funded flood insurance policies differently

without a rational basis. Moreover, the one-year time limitation for filing a proof
No. 08-31212

5

of loss violates due process by foreclosing judicial review of adjustment decisions

made more than one year after a loss. 

For these fairly bold arguments, the Wientjeses cite no legal authority. We

find none to support these propositions. The few district courts to have reached

similar issues have concluded that the proof-of-loss requirement did not violate

the constitutional rights of the insured. See, e.g., Dupuy v. Fid. Nat’l Prop. &

Cas. Ins. Co., No. 07-4661, 2009 WL 82555, at *3 n.5 (E.D. La. Jan. 12, 2009);

Howell v. State Farm Ins. Cos., 540 F. Supp. 2d 621, 633 (D. Md. 2008);

Schumitzki v. Dir., FEMA, 656 F. Supp. 430, 433 (D.N.J. 1987). The Wientjeses

have not offered anything to convince us to hold otherwise.

Finally, to the extent that the Wientjeses are arguing that American

Bankers waived the proof-of-loss requirement or that American Bankers or

FEMA should be equitably estopped from enforcing such requirement, their

arguments are foreclosed by a recent decision of this court. See Marseilles

Homeowners Condo. Ass’n, Inc., 542 F.3d 1053. 

We hold that the proof-of-loss requirement applied to the Wientjeses’

claims. That requirement was not met. Consequently, we need not address the

Wientjeses’ arguments with respect to the merits of their coverage dispute. 

The judgment of the district court is AFFIRMED.