IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30342

ALICE GINART, wife of/and; MICHAEL C. GINART, JR.,

Plaintiffs - Appellants

v.

STATE FARM FIRE & CASUALTY COMPANY,

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:07-CV-06841

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:

*

Plaintiffs seek reimbursement under their Standard Flood Insurance

Policy (SFIP) for costs they incurred in raising their property from its required

Base Flood Elevation (BFE) to an Advisory Base Flood Elevation (ABFE). The

district court granted summary judgment in favor of Defendant, concluding that

Plaintiffs’ claim did not fall within the coverage of their SFIP. Plaintiffs appeal.

We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

September 2, 2010

Lyle W. Cayce

Clerk

 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.

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BACKGROUND

“The Federal Emergency Management Agency (FEMA) operates the

[National Flood Insurance Program (NFIP)], which is supported by the federal

treasury.” Marseilles Homeowners Condo. Ass’n, Inc. v. Fid. Nat’l Ins. Co., 542

F.3d 1053, 1054 (5th Cir. 2008). “A policy issued under the NFIP is called a . . .

SFIP.” Id. “A SFIP is ‘a regulation of [FEMA], stating the conditions under

which federal flood-insurance funds may be disbursed to eligible policyholders.’”

Id. (alteration in original) (quoting Mancini v. Redland Ins. Co., 248 F.3d 729,

733 (8th Cir. 2001)). “SFIPs may be issued directly by FEMA or through private

insurers,” like Defendant. Id.

Plaintiffs own a rental property insured under a SFIP written by

Defendant. In 2006, following Hurricane Katrina, Plaintiffs elevated that

property from its existing BFE to a proposed ABFE. They claimed this expense

under their SFIP and Defendant disallowed the claim, leading to the instant

litigation.

Plaintiffs concede that there is only one provision of their SFIP, known as

the “Increased Cost of Compliance” (ICC) provision, that could cover their

claimed costs. It states that the SFIP will “pay[] you to comply with State or

local floodplain management laws or ordinances that meet the minimum

standards of the National Flood Insurance Program. . . . We pay for compliance

activities that exceed these standards under [certain] conditions.” Those

conditions include, in relevant part:

Elevation or floodproofing in any risk zone to preliminary or

advisory base flood elevations provided by FEMA which the State

or local government has adopted and is enforcing for flood-damaged

structures in such areas. (This includes compliance activities in B,

C, X, or D zones which are being changed to zones with base flood

elevations. This also includes compliance activities in zones where

base flood elevations are being increased, and a flood-damaged

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structure must comply with the higher advisory base flood

elevation.)

Plaintiffs also concede that the St. Bernard Parish Council, the controlling

local government authority for the property, did not adopt the proposed ABFEs

as the elevation levels required of property within the Parish until April 2007,

when it passed an ordinance providing that the ABFEs would only be enforced

starting June 2007. Plaintiffs note, however, that the Parish Council began

considering whether to adopt the ABFEs in 2006. Moreover, they emphasize that

while they were in the process of elevating their property, the Parish issued a

“Substantial Damage Determination” for the property. That document indicated

that the Parish found that the property had been “substantially damage[d] due

to flooding” and thus it “may be required to be demolished or rebuilt.” It further

stated that “[a]ll substantially damaged structures which do not meet Base

Flood Elevations (BFE) established by FEMA will be required to meet certain

BFE standards.”

Based on the foregoing, the district court granted summary judgment in

favor of Defendant. It stated that “[t]he policy language unequivocally restricts

authorized coverage for compliance activities when the local government is

currently, not prospectively, enforcing the ABFEs.” Because, at the time

Plaintiffs elevated their property, the Parish Council had not adopted the

ABFEs, the court concluded that the SFIP did not cover Plaintiffs’ expenses. The

court acknowledged that the policy’s parenthetical statement, indicating that it

would cover compliance activities in zones “where base flood elevations are being

increased,” suggested coverage might exist in some circumstances even if the

ABFEs had not yet been adopted. However, that same parenthetical indicated

that such coverage could only extend to property that “must comply with the

higher advisory base flood elevation.” Plaintiffs, the court explained, introduced

no evidence indicating they were made to comply with the ABFE. In fact, the

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Substantial Damage Determination indicated that they only needed to comply

with the current BFE. Lest there be any doubt regarding these conclusions, the

court pointed to a November 15, 2005 memorandum from FEMA, which stated,

“If the community adopts and enforces the FEMA provided ABFEs, [ICC]

benefits will be available to elevate buildings to the ABFEs. If the community

does not adopt and enforce the ABFEs, ICC benefits will only pay to elevate to

the BFE.”

Plaintiffs filed a Rule 59(e) motion to alter or amend the judgment. The

district court denied that motion, finding no manifest error of law or fact. It

reiterated that “the unambiguous language of the SFIP” indicates Plaintiffs are

not entitled to reimbursement.

STANDARD OF REVIEW

This court reviews grants of summary judgment de novo. Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538 (5th Cir. 2004).

“[E]ach movant bears the burden of establishing that no genuine issue of

material fact exists and that it is entitled to judgment as a matter of law.” Id.

at 538-39. “We must review the evidence, as well as the inferences that may be

drawn from the evidence, in the light most favorable to the party that opposed

the motion for summary judgment.” Little v. Liquid Air Corp., 952 F.2d 841, 847

(5th Cir. 1992).

DISCUSSION

In Hanvor Building Materials, Inc. v. Guiffrida, this court stated that

when disputes arise regarding the “interpretation of flood-insurance policy

provisions[,] . . . they are resolved under federal law ‘by drawing upon standard

insurance law principles.’” 748 F.2d 1011, 1013 (5th Cir. 1984) (quoting West v.

Harris, 573 F.2d 873, 881 (5th Cir. 1978)). These principles include “that, ‘if the

language of a policy is clear and unambiguous, it should be accorded its natural

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meaning.’” Id. (quoting Landress Auto Wrecking Co., Inc. v. U.S. Fid. & Guar.

Co., 696 F.2d 1290, 1292 (5th Cir. 1983)).

Because we conclude that the SFIP provision at issue unambiguously

excludes coverage for Plaintiffs’ claim, we affirm the judgment below largely for

the reasons stated by the district court. For elevation expenses to fall within the

policy coverage for compliance with “the minimum standards of the National

Flood Insurance Program” or for “[e]levation . . . to preliminary or advisory base

flood elevations,” the policy clearly states that “State or local floodplain

management laws or ordinances” must first have begun to enforce those

elevation levels. At the time Plaintiffs’ insurance claim for raising their home

from the BFE to the ABFE accrued, they acknowledge, the local government

authority had not adopted the ABFE. To the extent that the policy can be read

as providing coverage “where base flood elevations are being increased” by the

local government authority, it also unambiguously limits such coverage to

instances where the local government required the policy holder to “comply with

the higher advisory base flood elevation.” That is clearly not the case here. The

Substantial Damage Determination introduced by Plaintiffs demonstrates that

they only needed to comply with the BFE.

Plaintiffs—whose property is in Zone B—imply that because the ICC

provision’s parenthetical statement indicates coverage exists for “compliance

activities in B, C, X, or D zones which are being changed to zones with base flood

elevations” and does not link that coverage with those elevations being adopted

or enforced, at the very least this statement encompasses their claim. However,

the cited parenthetical sentence clearly and specifically references the earlier

terms and conditions of the ICC provision. The cited sentence begins with the

phrase “[t]his includes,” the “this” referring back to the scope of coverage

established earlier in the paragraph, which was limited to where the “local

government has adopted and is enforcing” the elevation levels. Therefore, as we

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find the SFIP language unambiguous, we must afford it that meaning, and

conclude that Plaintiffs’ claim, by their own admission, does not fall within the

policy’s terms.

Plaintiffs make much of the fact that in 2008, well after they elevated their

home and filed the instant suit, they obtained a letter from David Paysse, Legal

Counsel to the Parish President, stating that the Substantial Damage

Determination required Plaintiffs “to meet or exceed the ABFEs.” This

after-the-fact conclusory assertion does not alter the plain language of the 2006

Substantial Damage Determination, also relied upon by Plaintiffs, which states

that Plaintiffs were only “required to meet current BFE standards.” Therefore,

we conclude that the Paysse letter is insufficient to establish a genuine issue of

material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The

mere existence of a scintilla of evidence in support of the plaintiff[s’] position will

be insufficient [to establish a genuine issue of material fact]; there must be

evidence on which the jury could reasonably find for the plaintiff[s].”).

Plaintiffs also suggest that they are entitled to coverage because they

complied with the FEMA directions for obtaining such coverage. Plaintiffs’ Br.

22-23. However, again, the evidence introduced by Plaintiffs, the directions,

undermines this argument. The form indicates that to obtain “Increased Cost of

Compliance” coverage the expenses incurred must be to “mitigat[e]” a

Substantial Damage Determination. In other words, the costs must be required

by the Substantial Damage Determination in order to avoid the consequences of

the determination, namely demolition. Here, the Substantial Damage

Determination did not require Plaintiffs to raise their property to the ABFE, but

rather only to the BFE. Thus, Plaintiffs did not in fact comply with the directions

and their argument must fail.

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CONCLUSION

Fore the foregoing reasons we AFFIRM the grant of summary judgment

in favor of Defendant.

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