* 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. 07-30271

LAMAR M RICHARDSON, JR

Plaintiff - Appellant

v.

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:06-CV-1745

Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:*

Attorney Lamar Richardson purchased a flood insurance policy through

American Bankers Insurance Company of Florida. After Hurricane Katrina

damaged Richardson’s property, he filed a claim under his flood insurance policy

and an adjuster determined that he was owed $16,125.50. Richardson believed

he was owed more and told American, but he never submitted a formal Proof of

Loss (POL). After he was denied additional payments, Richardson, proceeding

pro se, sued American and David Paulison, acting director of the Federal

United States Court of Appeals

Fifth Circuit

F I L E D

February 27, 2008

Charles R. Fulbruge III

Clerk
No. 07-30271

1 By consent of the parties, and on motion of the plaintiff, the district court dismissed

defendant David Paulison because FEMA was not a proper party defendant pursuant to 44

C.F.R. § 62.23.

2

Emergency Management Agency (FEMA).1 Richardson and American crossmotioned for summary judgment. The district court granted summary judgment

to American, holding that because Richardson did not submit a sworn POL

within one year of the date of his loss, the suit was precluded as a matter of law.

Richardson appeals. We affirm.

1. Richardson owns property in Mandeville, LA, which has been

insured at all relevanttimes by American through a StandardFlood

Insurance Policy. In August 2005, Katrina flooded his property and

covered the ground with debris. Richardson subsequently filed a

claim under his policy. American’s adjuster determined that he was

owed $16,125.50 and American paid that sum to Richardson in

December 2005.

Richardson disagreed with American’s interpretation of the

policy and sought additional benefits. He obtained invoices and

estimates, which he provided to defendant’s adjuster and requested

in writing that he be paid an additional $12,900.00. But he never

submitted a sworn POL for the additional sums. American denied

any additional payment on February 28, 2006. 

On April 3, 2006, Richardson filed the instant suit, seeking

the additional $12,900. The following month, Richardson and

American’s attorney had a phone conversation in which Richardson

claims he was told that “proof of loss was not and would not be an

issue in this lawsuit.” American’s counsel denies that he made this

statement. On July 10, 2006 American’s attorney wrote Richardson

to discuss voluntary dismissal of state claims against American and
No. 07-30271

3

said that American “has no problem with you seeking additional

[policy] benefits and exercising your right to bring a lawsuit seeking

such benefits.” Richardson interprets this letter as confirming the

earlier conversation by implying that POL would not be an issue.

Richardson could read this statement as affirming prior

conversations where he and defense counseltalked aboutthe merits

of his claim, but it provides no independent support for his

argument that defense counsel said POL would not be raised as a

defense. The phrase “proof of loss” or “POL” does not appear once

in the letter. And the subject matter of the letter is Richardson’s

voluntary dismissal of extra-contractual claims, which is distinct

from a discussion about his claims under the policy. 

On January 12, 2007, more than one year after Richardson’s

house was flooded, American moved for summary judgment based

solely on the grounds that Richardson did not support his current

claim for additional benefits with a sworn POL. The district court

granted American’s motion for summary judgment. 

2. We review the district court’s grant of summary judgment de novo.

Texas Indus., Inc. v. Factory Mut. Ins. Co., 486 F.3d 844, 846 (5th

Cir. 2007). Summary judgment is appropriate if the record shows

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

movant is entitled to a judgment as a matter of law.” FED. R. CIV.

P. 56(c). 

3. Richardson’s claim involves the National Flood Insurance Program

(NFIP), which Congress created to provide insurance coverage at or

below actuarial rates. Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir.

1998). FEMA operates the program, and it is supported by the

federaltreasury. Id. Flood insurance policies can be issued directly
No. 07-30271

4

by FEMA or through private insurers known as “Write Your Own”

(WYO) companies. Id. American issued the policy to Richardson as

a WYO company. By statute, WYO companies are fiscal agents of

the United States. 42 U.S.C. § 4071(a)(1).

FEMA fixes the terms and conditions of all federal flood

insurance policies, including the policy issued to Richardson.

Policies must be issued in the form of a Standard Flood Insurance

Policy (SFIP) and no provision of the policy can be altered, varied,

or waived without the express written consent of the Federal

Insurance Administrator. 44 C.F.R. § 61, app. A(2), art. VII.D. A

NFIP participant cannot file a lawsuit seeking further federal

benefits under the SFIP unless the participant can show prior

compliance with all policy requirements. 44 C.F.R. § 61, app. (A)(1),

art. VII.R. The particular condition precedent American asserts

Richardson did not satisfy is the requirement to submit a sworn

proof of loss. See 44 C.F.R. § 61, app. A(2), art. VII.J. 

After Hurricane Katrina struck the Gulf Coast, the Acting

Federal Insurance Administrator issued a waiver to create a system

for expedited payment of claims and, for contested claims, waived

the 60-day deadline for a proof of loss and instead imposed a oneyear deadline.

4. Richardson argues that the district court erred in applying a strict

proof of loss requirement in a case in which he submitted a claim for

losses under his policy, the insurer paid the claim, and the only

issue in dispute is the amount of payment. Essentially, Richardson

believes that he could bring suit without ever submitting a sworn

proof of loss for the additional sums he claims he is owed under the

policy. 
No. 07-30271

5

Richardson’s position is contrary to federal statutory law, the

Administrator’s Waiver, and our precedent. Pursuant to the waiver,

after Katrina, insureds with SFIP coverage could receive payment

for losses based on an adjuster’s report without submitting a sworn

POL within the normal 60-day statutory period. But if the

policyholder disagreed with the insurer’s calculation of the amount

owed, the policyholder had to submit to the insurer a sworn POL

within one year of the date of loss. 

This is a strict requirement. The regulations say that a NFIP

participant cannot file a lawsuit seeking further federal benefits

under the SFIP unless the participant can show prior compliance

with all of the policy’s requirements, including the POL

requirement. 44 C.F.R. § 61, app. (A)(1), arts. VII.J, VII.R. In

Gowland, we explained that the POL requirement—contained in a

provision of an insurance policy issued pursuant to a federal

program—must be “strictly construed and enforced.” 143 F.3d at

954. In a recent case, the Eleventh Circuit responded to a similar

claim by an insured who failed to submit a POL within the one-year

period mandated by a waiver (substantively identical to the one

here) issued after Hurricane Ivan. Shuford v. Fidelity Nat’l Prop.

& Cas. Ins. Co., 508 F.3d 1337 (11th Cir. 2007). The Eleventh

Circuit described the “rejection of a timely proof of loss [under the

waiver as] a condition precedent for the filing of a lawsuit . . . .” Id.

at 1342. Richardson was required to submit a sworn POL within

one year of the date of his loss. 

5. Richardson also says that we should deem his submissions to

American to be legally sufficient substitutes for a sworn POL under

theories of substantial compliance or repudiation. His theory of
No. 07-30271

6

substantial compliance is contrary to binding precedent in this

circuit. In Gowland, we said that because “the provisions of an

insurance policy issued pursuant to a federal program must be

strictly construed and enforced, . . . 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.” 143 F.3d at 954. 

Richardson also claims that he should be excused from

submitting a sworn POL because American repudiated the flood

insurance policy when it denied him coverage for the amount he

claimed for debris removal. He cites Studio Frames, Ltd. v.

Standard Fire Ins. Co., 369 F.3d 376, 380–83 (4th Cir. 2004), where

the WYO carrier repudiated the entire policy because the would-be

insured did not own the building that it tried to insure and the

insurer refunded the premiums paid. Studio Frames in inapposite.

In our case, American merely denied coverage for Richardson’s

claim but did not repudiate the policy, and the Supreme Court long

ago held that denial of a claim for benefits under an insurance policy

does not constitute a repudiation. New York Life Ins. Co. v. Viglas,

297 U.S. 672, 56 S. Ct. 615 (1936). 

6. Finally, Richardson contends that American waived or should be

equitably estopped from raising POL as a defense because its

attorney told Richardson that POL would not be raised as a defense

in the lawsuit. Richardson says this is important because when the

representation was made he still had time to file a sworn POL. 

Even assuming that the representations were made, waiver

would still be inappropriate. In Gowland, we held that a WYO

company could not waive the POL requirement because “the federal
No. 07-30271

7

regulations provide that no provision of the policy may be altered,

varied, or waived withoutthe express written consent of the Federal

Insurance Administrator.” 143 F.3d at 954 (citing 44 C.F.R. §

61.13(d)). Here, there is no such waiver from the Administrator. In

fact, the waiver provided after Katrina specifically reaffirms the

POL requirement if an insured disagrees with the insurer’s

adjustment. 

Richardson says that because of its attorney’s promises,

American should be equitably estopped from asserting the POL

defense. The Supreme Court has not announced a per se rule that

equitable estoppel is never available against the government, but it

has held in denying an equitable estoppel claim that “this Court has

never upheld an assertion of estoppel against the Government by a

claimant seeking public funds.” Office of Pers. Mgmt. v. Richmond,

496 U.S. 414, 434, 110 S. Ct. 2465, 2476 (1990). And in Wright v.

Allstate Ins. Co., we held that “as in Gowland, . . . the doctrine of

equitable estoppel” is unavailable in a claim by an insured against

a WYO carrier asserting a POL defense. 415 F.3d 384, 387 (5th Cir.

2005). Other courts have denied equitable estoppel claims against

WYO carriers. See, e.g., Shuford, 508 F.3d at 1342–43. Equitable

estoppel is not appropriate in this case. Assuming the attorney

acted as Richardson claims, Richardson perhaps has a claim

independent from this lawsuit, but there is no claim here.

AFFIRMED