IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30251

JAMES MILLER; VICTORIA MILLER, 

 Plaintiffs–Appellants,

v.

AMERICAN STRATEGIC INSURANCE CORPORATION; LIGGIO 

INSURANCE AGENCY, INCORPORATED, 

 Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:13-CV-2658

Before KING, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

James and Victoria Miller (the Millers) appeal the district court’s 

dismissal of their claims against American Strategic Insurance (American 

Strategic) and Liggio Insurance Agency (Liggio). We affirm.

I

The Millers obtained an insurance policy from Liggio that American 

Strategic had issued pursuant to the National Flood Insurance Program 

 

* 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

December 6, 2016

Lyle W. Cayce

Clerk

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(NFIP). The Millers’ house was partially built on piers, leaving a “crawlspace” 

underneath the floor of the home. While the insurance policy was still in effect, 

a heavy rain caused flood water to enter a crawlspace beneath the Millers’ 

house, but the water stopped rising before reaching the house’s threshold. The 

Millers contacted Liggio, which advised the Millers that they had not 

experienced a flood event. A few months later, Victoria Miller fell through the 

floor of her house. The Millers again contacted Liggio, which advised the 

Millers that foundation issues were not covered under the policy. After repairs 

to the floor were made, the Millers, believing that the damage to the house was 

“consistent with flood damage,” filed a flood-damage claim with American 

Strategic. American Strategic sent an adjuster, who, after inspecting the 

property, prepared a proof of loss for the Millers for post-flood cleaning only. 

The Millers did not sign nor submit this proof of loss, and, as a result, 

American Strategic closed their claim on September 13, 2012. The Millers

submitted a proof of loss a month and a half later in support of their flooddamage claim. American Strategic acknowledged receipt of this proof of loss 

but reiterated that the Millers’ only covered loss was for cleaning expenses. 

American Strategic did not reopen the Millers’ claim. The Millers appealed 

this determination to the Director of Claims for the NFIP, who upheld 

American Strategic’s determination that the Millers’ loss was limited to 

cleaning expenses.

On September 13, 2013, the Millers filed suit against American Strategic 

in the Western District of Louisiana. American Strategic asserted, among 

other defenses, that the Millers had failed to comply with the policy’s proof of 

loss requirement and moved for summary judgment. While this motion was 

pending, the district court, on January 29, 2015, allowed the Millers to amend 

their complaint to join Liggio as a defendant. Liggio promptly moved to 

dismiss for failure to state a claim. The district court first granted American 

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Strategic’s summary judgment motion on the basis that the Millers submitted 

an inadequate proof of loss and then granted Liggio’s motion to dismiss, 

holding that the applicable peremptive period under Louisiana law barred the 

Millers’ claim. The Millers moved for a rehearing or new trial regarding 

American Strategic on the basis that the district court did not address the 

Millers’ equitable estoppel claim that they had raised in their summary 

judgment briefing. After the district court denied this motion, the Millers 

appealed all three decisions.

II

A

“We review a grant of summary judgment de novo, applying the same 

standard that the district court applied.”1 We will affirm a grant of summary 

judgment if, construing the facts in the light most favorable to the non-moving 

party, “the pleadings, the discovery and disclosure material on file, and any 

affidavits show that there is no genuine dispute as to any material fact and 

that the movant is entitled to judgment as a matter of law.”2

The Millers have limited their appeal as it pertains to American 

Strategic to two issues: (1) whether American Strategic violated a purported

right conferred by 42 U.S.C. § 4072, and (2) whether equitable estoppel 

precludes summary judgment. The Millers, however, did not argue before the 

district court that America Strategic violated a right conferred by § 4072, and 

they may not assert it for the first time on appeal.3 Accordingly, we limit our 

review to the second issue presented.

 

1 Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016).

2 EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

3 See, e.g., Wilcox v. Wild Well Control, Inc., 794 F.3d 531, 539 (5th Cir. 2015).

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B

American Strategic issued this insurance policy pursuant to the NFIP, 

which Congress established “to provide insurance coverage at or below 

actuarial rates.”4 The NFIP empowers the Federal Emergency Management 

Agency (FEMA) to issue an insurance policy, called a Standard Flood 

Insurance Policy (SFIP), either directly or, as here, through private issuers 

known as “Write Your Own” (WYO) companies, which are statutorily 

authorized to act as fiscal agents of the United States.5 FEMA, through 

regulation, creates the Standard Flood Insurance Policy, which establishes

“the conditions under which federal flood-insurance funds may be disbursed to 

eligible policyholders”6 and cannot “be altered, varied, or waived without the 

express written consent of [FEMA’s] Federal Insurance Administrator.”7

Because any payment of a claim under a Standard Flood Insurance Policy is “a 

direct charge on the public treasury,”8 “[a]n insured’s failure to strictly comply 

with the SFIP’s provisions—including the proof-of-loss requirement—relieves 

the federal insurer’s obligation to pay the non-compliant claim.”9 Notably, the 

Standard Flood Insurance Policy allows suit only if the claimant has “complied 

with all the requirements of the policy.”10 

 

4 Marseilles Homeowners Condo. Ass’n v. Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1054 

(5th Cir. 2008) (per curiam).

5 42 U.S.C. § 4071(a)(1); Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir. 1998).

6 Marseilles, 542 F.3d at 1054 (internal quotation marks omitted) (quoting Mancini v. 

Redland Ins. Co., 248 F.3d 729, 733 (8th Cir. 2001)); see also 44 C.F.R. § 61.4(b) (stipulating 

that the Federal Insurance Administrator promulgates “the terms and conditions of the 

Standard Flood Insurance Policy”); 44 C.F.R. pt. 61 app. A(1) (containing the SFIP).

7 Gowland, 143 F.3d at 953; accord 44 C.F.R. § 61.13(d); see also 42 U.S.C. § 4129 

(noting that the Federal Insurance Administrator is part of FEMA).

8 Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531-32 (5th Cir. 2015) (internal 

quotation marks omitted) (quoting Gowland, 143 F.3d at 955).

9 Id. at 534.

10 44 C.F.R. pt. 61 app. A(1) art. VII pt. ¶ R (emphasis added).

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The Millers do not challenge the district court’s holding that they 

provided an inadequate proof of loss. Instead, they argue that American 

Strategic is estopped from asserting that their proof of loss is inadequate 

because American Strategic considered the merits of the Millers’ proof of loss. 

Even if we assume that the Millers have presented facts that would estop a 

private litigant, we are “powerless to uphold a claim of estoppel” against a 

Write Your Own company “because such a holding would encroach upon the 

appropriation power granted exclusively to Congress by the Constitution.”11 In 

fact, we have foreclosed the Millers’ argument with even more specificity, 

holding that “there can be no estoppel of the Proof of Loss requirement.”12 

Because the Millers do not contest that they have not complied with all 

the requirements of the Standard Flood Insurance Policy, and because we 

cannot estop American Strategic from asserting the Millers non-compliance

with the Standard Flood Insurance Policy as a defense, there is no genuine 

dispute of material fact, and American Strategic is entitled to judgment as a 

matter of law.

III

A

“We review a district court’s grant of a motion to dismiss de novo.”13 We 

accept the plaintiff’s well-pleaded facts and view those facts in the light most 

favorable to the plaintiff.14 If the facts alleged do not state a claim that is 

 

11 Gowland, 143 F.3d at 955; see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 

434 (1990) (“As for monetary claims, it is enough to say that this Court has never upheld an 

assertion of estoppel against the Government by a claimant seeking public funds. In this 

context there can be no estoppel . . . .”). 12 Forman v. FEMA, 138 F.3d 543, 546 (5th Cir. 1998).

13 Reece v. U.S. Bank Nat’l Ass’n, 762 F.3d 422, 424 (5th Cir. 2014) (internal quotation 

marks omitted) (quoting Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir. 

2014)). 

14 Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 510 (5th Cir. 2016).

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plausible on its face, then dismissal is proper.15 “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.”16 

A statute of limitations defense is an adequate basis for dismissal if “it is 

evident from the plaintiff’s pleadings that the action is barred and the 

pleadings fail to raise some basis for tolling or the like.”17

B

The Millers have asserted only a state-law negligence claim against 

Liggio, a claim which is constrained by a one-year peremptive statute of 

limitation.18 The peremptive period expires “within one year from the date 

that the alleged act, omission, or neglect is discovered or should have been 

discovered.”19 The peremptive period “may not be renounced, interrupted, or 

suspended,”20 and “relation back of an amended or supplemental pleading is 

not allowed.”21 Although the Louisiana Supreme Court has not yet determined

what suffices to trigger the peremptive period for a claim against an insurance 

agent, it has done so for the legal malpractice peremptive period,22 holding that 

“the date of discovery is the date the negligence was discovered or should have 

been discovered by a reasonable person in the plaintiff’s position.”23 The 

 

15 Id.

16 Gearlds v. Entergy Servs., Inc, 709 F.3d 448, 450 (5th Cir. 2013) (internal quotation 

marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009)).

17 King–White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015) (internal 

quotation marks omitted) (quoting Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003)).

18 LA. STAT. ANN. § 9:5606.

19 § 9:5606(A). 20 § 9:5606(D).

21 Udomeh v. Joseph, 103 So. 3d 343, 348 (La. 2012) (internal quotation marks and 

alterations omitted) (quoting Naghi v. Brener, 17 So. 3d 919, 925 (La. 2009)).

22 LA. STAT. ANN. § 9:5605.

23 Jenkins v. Starns, 85 So. 3d 612, 621 (La. 2012); see also Hemphill v. State Farm 

Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015) (noting that in the absence of controlling 

precedent from a state’s highest court, federal courts must “determine . . . how that court 

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Louisiana court has held that a peremptive period commences “when a 

claimant knew or should have known of the existence of facts that would have 

enabled him to state a cause of action.”24

The Millers maintain that their claim is timely because they filed the 

claim against Liggio within one year of discovering that Liggio’s actions—its

statements that the Millers had not experienced a flood event and that the 

Standard Flood Insurance Policy did not cover foundation damage or failures—

would likely harm them. This discovery, the Millers assert, occurred on 

September 3, 2014, when American Strategic allegedly “first indicated its 

position that the Millers’ flood claim [was] untimely and that untimeliness is 

dispositive to the claim.” 

Nevertheless, the Millers should have known of Liggio’s alleged 

negligence earlier. The Millers admit in their complaint that American 

Strategic closed their claim on September 13, 2012 “for failure to provide a 

proof of loss.”25 This event demonstrates that the Millers should have known 

that the untimely provision of a proof of loss could preclude their recovery. The 

Millers should also have been aware of any cause of action for negligence that 

it could assert against Liggio for allegedly causing the delay that resulted in 

the Millers failure to file the proof of loss at that time. Even if the Millers did 

not comprehend, as they should have, that Liggio might have caused their 

delayed filing when American Strategic closed their claim, the Millers 

articulated the facts underlying their cause of action against Liggio in their 

initial complaint on September 13, 2013. Because it is clear that, at least by 

this point, a reasonable person would have discovered that Liggio might have 

 

would resolve the issue if presented with the same case” (internal quotation marks omitted) 

(quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007))).

24 Jenkins, 85 So. 3d at 621.

25 The Millers acknowledge in their complaint that their claim “remain[ed] closed”

even after filing the proof of loss that the district court held was inadequate. 

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been negligent in giving advice that caused a delayed filing, the peremptive 

period expired before the Millers initiated suit against Liggio on January 29, 

2015. Accordingly, the Millers have failed to assert a plausible claim for relief, 

and dismissal is appropriate.

* * *

For the foregoing reasons, we AFFIRM the district court’s judgment.

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