IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31125

ELVIN CUMMINGS, 

 Plaintiff - Appellee

v.

FIDELITY NATIONAL INDEMNITY INSURANCE COMPANY, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:13-CV-5301

Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:*

The issue before the court is whether Plaintiff and Appellee, Elvin 

Cummings, is entitled to recover damages pursuant to his National Flood 

Insurance Program (“NFIP”) Standard Flood Insurance Policy (“SFIP”). The 

district court entered a judgment in favor of Cummings. For the following 

reasons, we REVERSE. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 15, 2016

Lyle W. Cayce

Clerk

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No. 14-31125

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BACKGROUND

In August 2012, Hurricane Isaac caused damage to Cummings’s home in 

LaPlace, Louisiana. Thereafter, Cummings submitted a flood loss claim to the 

Defendant-Appellant, Fidelity National Indemnity Insurance Company 

(“Fidelity”), who assigned an independent adjuster, Chris Beauvais, to inspect 

the flood damage. 

Cummings’s SFIP required him to submit a proof of loss. On March 6, 

2013, with the assistance of Beauvais, Cummings signed a proof of loss in the 

amount of $42,140.21. That figure was based upon the recommended payment 

suggested by Beauvais as part of his inspection. On March 11, 2013, Fidelity 

paid Cummings pursuant to Coverage A of his policy for building damage in 

the amount of $42,140.21―the exact amount he requested on his proof of loss. 

Along with the March 6, 2013 proof of loss, Cummings also submitted a 

four-page list to Fidelity detailing the contents that he claims were damaged 

in the flood and claiming a total replacement cost of $104,390.00. Cummings, 

however, never submitted a proof of loss for the claimed damage to the contents 

of his home and he did not include the amount of $104,390.00 on the front page 

of his proof of loss. Fidelity denied Cummings’s claim for content loss and has 

not made any payments to Cummings under Coverage B. The letter partially 

denying Cummings’s claim states that Fidelity required “additional proof (i.e. 

photos or receipts) which [would] assist in proof of damage and ownership of 

the contents being claimed.” The letter did not tell Cummings to submit an 

additional signed and sworn proof of loss, but directs him to review his 

Standard Flood Insurance Policy Dwelling Form and the Insuring Agreement 

of his policy. 

Cummings filed suit for the contents he claimed were damaged in the 

flood. After a bench trial, the district court awarded Cummings $25,000.00 plus 

interest for contents loss. The district court determined that Cummings had 

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submitted sufficient proof regarding his loss in the form of photographs, 

testimony, and a written statement. Thereafter, Fidelity appealed the district 

court’s judgment. 

STANDARD OF REVIEW

The NFIP is controlled by federal regulations. See 44 C.F.R. § 61.4. This 

court’s review of a district court’s interpretation of a statute or regulation is de 

novo. Monistere v. State Farm Fire & Cas. Co., 559 F.3d 390, 393 (5th Cir. 2009)

(citing Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002)).

ANALYSIS

Federal law governs claims under the NFIP and the program is 

administered by the Federal Emergency Management Agency (“FEMA”). 

Wright v. Allstate Ins. Co., 415 F.3d 384, 386 (5th Cir. 2005) (citing 44 C.F.R. 

§§ 61.4(b), 61.13(d)). The federal treasury ultimately makes payments on SFIP 

claims. Id. (citing Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998)). The 

SFIP requires the insured to notify the insurer of the loss and submit a 

complete signed and sworn proof of loss setting out the nature, cause, and value 

of the loss. Gowland, 143 F.3d at 954. Specifically, the SFIP’s proof of loss 

requirement states:

In case of a flood loss to insured property, you [insured] must: [. . 

.]

4. Within 60 days after the loss, send us a proof of loss, which is 

your statement of the amount you are claiming under the policy 

signed and sworn to by you, and which furnishes us with the 

following information:

a. The date and time of loss;

b. A brief explanation of how the loss happened;

c. Your interest (for example, “owner”) and the interest, if any, of 

others in the damaged property;

d. Details of any other insurance that may cover the loss;

e. Changes in title or occupancy of the covered property during the 

terms of the policy;

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f. Specifications of damaged buildings and detailed repair 

estimates;

g. Names of mortgages or anyone else having a lien, charge, or 

claim against the insured property;

h. Details about who occupied any insured building at the time of 

loss and for what purpose; and

i. The inventory of damaged personal property described in J.3 

above.

44 C.F.R. § 61, app. A(1), art. VII(J)(4) (emphasis added). Moreover, the SFIP 

states, “You may not sue us to recover money under this policy unless you have 

complied with all the requirements of the policy.” 44 C.F.R. § 61, app. A(1), art. 

VII(R) (emphasis added). 

The issue before the court is whether Cummings’s failure to submit a 

signed and sworn proof of loss for damages to the contents of his home prevents 

him from recovering an additional amount. This court recently noted in 

Ferraro v. Liberty Mutual Fire Insurance Company, that“[w]hether an insured 

must submit an additional proof of loss to recover an additional amount on a 

preexisting claim is a question of first impression in this circuit.” 796 F.3d 529, 

532 (5th Cir. 2015) (citing Rogers v. S. Fid. Ins. Co., No. 13–5695, 2014 WL 

3587379, at *4 (E.D. La. July 18, 2014) (“As this Court has previously pointed 

out, the Fifth Circuit has not directly addressed this issue.”)). In Ferraro, the 

insured parties signed a proof of loss and handwrote on their form that they 

would send a supplement at a later date. 796 F. 3d at 530. They then hired a 

public adjuster who issued a report valuing their loss at over three times the 

amount included in their initial proof of loss. Id. They submitted the report to 

their insurance carrier, but they failed to submit a second signed and sworn 

proof of loss. Id. The court determined that the insureds were required to 

submit an additional proof of loss to recover an additional amount on a 

preexisting claim under a SFIP. Id. at 532. The court concluded that “[a]n 

insured’s failure to strictly comply with the SFIP’s provisions—including the 

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proof-of-loss requirement—relieves the federal insurer’s obligation to pay the 

non-compliant claim.” Id. Therefore, because the insured’s additional claim 

was neither signed nor sworn-to, it could not serve as a proof of loss under the 

plain terms of the SFIP. Id.1

The Fifth Circuit stated in a similar case that “it is clear that giving 

notice of loss and providing a sworn proof of loss statement are separate and 

distinct requirements of the policy.” Gowland, 143 F.3d at 954. The court 

stated:

As the provisions of an insurance policy issued pursuant to a 

federal program must be strictly construed and enforced, we hold 

that an insured’s failure to provide a complete, sworn proof of loss 

statement, as required by the flood insurance policy, relieves the 

federal insurer’s obligation to pay what otherwise might be a valid 

claim.

Id. at 954.

The court is sympathetic to Cummings’s plight. Nevertheless, “a policy 

of ‘insurance issued pursuant to a federal program must be strictly construed 

and enforced. . . .’” Monistere, 559 F.3d at 394 (citing Gowland, 143 F.3d at 

954). “Because insurance companies act as ‘fiscal agents’ of the government 

under the National Flood Insurance Program, all policy awards deplete 

federally allocated funds.” Id. (citing In re Estate of Lee, 812 F.2d 253, 256 (5th 

Cir. 1987)). Accordingly, “‘not even the temptations of a hard case’ will provide 

 

1 The court agreed with the approach taken by both the First and Eighth Circuit Court 

of Appeals. The First Circuit Court of Appeals rejected the argument that simply providing 

an insurance company with notice of a claim satisfies the condition precedent to suit. DeCosta 

v. Allstate Ins. Co., 730 F.3d 76, 85 (1st Cir. 2013) (citing Evanoff v. Standard Fire Ins. Co., 

534 F.3d 516, 520–21 (6th Cir. 2008); Mancini v. Redland Ins. Co., 248 F.3d 729, 734–35 (8th 

Cir. 2001)). Likewise, the Eighth Circuit Court of Appeals determined that a second proof of 

loss is required in scenarios akin to this case. See Gunter v. Farmers Ins. Co., 736 F.3d 768, 

773 (8th Cir. 2013) (insured parties failed to file a supplemental proof of loss and thus did 

not satisfy the prerequisites for suing on their additional claim because of the language of 

the SFIP). 

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a basis for ordering recovery contrary to the terms of a regulation, for to do so 

would disregard ‘the duty of all courts to observe the conditions defined by 

Congress for charging the public treasury.’” Id. (quoting Forman v. Fed. 

Emergency Mgmt. Agency, 138 F.3d 543, 545 (5th Cir. 1998)). See generally 

Richmond Printing LLC v. Dir. Fed. Emergency Mgmt. Agency, 72 F. App’x 92, 

97 (5th Cir. 2003) (citing Kerr v. FEMA, 113 F.3d 884 (8th Cir. 1997) (finding 

that completion of the proof of loss is the insured’s own responsibility and “any 

reliance on statements made by the adjuster that contradicted the terms of the 

SFIP was unreasonable as a matter of law; the insured had a duty to read the 

policy and acted unreasonably in relying on adjusters provided only as a 

‘courtesy’”); see also Gowland, 143 F.3d at 955 (quoting Fed. Crop Ins. Corp. v. 

Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 3-4, 92 L.Ed. 10 (1947) (“Requiring 

[insured parties] to turn square corners when dealing with the Treasury ‘does 

not reflect a callous outlook. It merely expresses the duty of all courts to 

observe the conditions defined by Congress for charging the public treasury.’”). 

Accordingly, since Cummings failed to submit a signed proof of loss for 

damages sustained to the contents of his home, it was improper for the district 

court to award him damages. Therefore, the court also finds that the district 

court’s award of pre-judgment interest was also in error.

CONCLUSION

For the above described reasons, we REVERSE. 

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