1Plaintiff erroneously identified defendant as “State Farm

Insurance Companies,” which defendant corrected its Answer. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin B. Bevis

v. Civil No. 07-cv-370-JM

State Farm Fire and

Casualty Company1

O R D E R

Plaintiff Kevin B. Bevis owns property in a Special Flood

Hazard Area on the banks of Baboosic Lake, in the Town of

Amherst, New Hampshire. In May 2006, excessive rain caused the

lake waters to breach and flood his property. Plaintiff filed a

claim for the resulting damage with defendant, State Farm Fire

and Casualty Company, which insured the property under a “writeyour-own” Standard Flood Insurance Policy (“SFIP”), issued

pursuant to the National Flood Insurance Act of 1968 (“NFIA”), 42

U.S.C. § 4001, et seq. The claim was not fully paid, and this

breach of contract action followed. Currently before the court

is defendant’s motion for summary judgment (document no. 13)

which, for the reasons set forth below, is granted.

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 1 of 17
2

Background

On May 14, 2006, when flooding rains severely damaged

plaintiff’s property, the property was insured under an SFIP

issued by defendant, a participant in the federal National Flood

Insurance Program (“NFIP”), which was instituted pursuant to the

NFIA. See Def. Mem. in Support of M. for Summ. J. (“Def.’s Summ.

J. Mem.”), Aff. of James D. Murphy (document no. 9.2) (“Murphy

Aff.”), ¶ 5. Like other private insurance companies, defendant

carries the SFIP as part of an arrangement with the Federal

Emergency Management Agency (“FEMA”), which runs the NFIP. See

id. ¶ 6. All of defendant’s flood insurance policies are SFIP

policies, issued in accordance with the NFIP. See id. ¶ 8. 

Plaintiff’s policy was specifically for property in a “Flood

Hazard Zone” and provided three distinct types of coverage: 

Coverage A for Buildings, up to $88,000; Coverage B for Contents,

up to $66,000; and Coverage D for Increased Cost of Compliance

costs, up to $30,000, depending on a variety of factors detailed

in the policy. See Def.’s Summ. J. Mem., Policy Number 29-RA2535-8 (document no. 9.3) (“Pl.’s Policy”). 

Plaintiff notified defendant about the flood damage on May

15, 2006, and one of defendant’s adjusters, Eric Geissenhainer,

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 2 of 17
3

met with plaintiff to review the claim. A few days later,

plaintiff informed Geissenhainer that he had spoken to a

contractor about the necessary repair work, and had realized that

the sub-floor of his home may contain asbestos. See Murphy Aff.

¶¶ 14 & 15. Geissenhainer responded to plaintiff, by letter

dated May 26, 2006, that plaintiff’s SFIP did not provide

coverage for the removal of asbestos in the sub-floor, so no

payments would be made for any costs associated with asbestos

removal. Id. Geissenhainer also explained that if plaintiff

were to pursue the denial of coverage in a lawsuit, the action

would need to be commenced within one year of the written denial

of all or part of the claim. Id. 

On May 25, 2006, plaintiff submitted a Proof of Loss (“PoL”)

form to claim the flood damages. See Def.’s Summ. J. Mem. at 7;

Def.’s Reply Mem. at 4; see also Pl.’s Mem. in Supp. of Obj. to

Summ. J. Mot. (“Pl.’s Obj.”) at 2, & Aff. of Kevin Bevis

(document no. 13.1)(“Bevis Aff.”) ¶ 6. Geissenhainer concluded

that plaintiff was entitled to $34,470.76 under the building

coverage, and $6,859.75 under the contents coverage of the

policy, and defendant paid plaintiff $41,330.51. Id.; see also

Murphy Aff. ¶ 13. 

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 3 of 17
2It is unclear whether Exhibit A’s list of itemized costs

was part of the June 15, 2006 ICC claim, which constituted its

own PoL, or whether the June 15, 2006 ICC claim and Exhibit A

were supplements to the original PoL, submitted on May 25, 2006. 

The record contains only one PoL form, dated 12/21/06, which

states that an ICC claim was filed on June 15, 2006. See Def.’s

4

The Town of Amherst assessed the damage to plaintiff’s home

and determined the house was more than 50% destroyed, which

rendered it eligible for “mitigation” under Coverage D of the

policy. Plaintiff decided that, because of the extensive flood

damage and the need to comply with applicable state and local

floodplain management regulations, he would rebuild his home at a

new site on the property rather than repair his home in its

existing location. See Bevis Aff. ¶ 7. On June 15, 2006,

plaintiff filed an Increased Cost of Compliance (“ICC”) claim,

under Coverage D, which stated that the mitigation option

selected was “relocation.” See Def.’s Reply Mem., Ex. 1

(document no. 16-2) (12/21/06 Proof of Loss (“PoL”) form). 

Plaintiff next submitted an itemized list of the costs of

demolishing the structure and bringing the property into

compliance with applicable regulations, which reflected a total

loss claimed of $38,864. See Bevis Aff. ¶ 8; see also Def.’s

Summ. J. Mem., Pl.’s Answers to Def.’s First Set of

Interrogatories (document no. 9.7), Ex. A.2

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 4 of 17
Reply Mem., Att. 1 (document no. 16.2). This discrepancy in the

record, however, is not material to plaintiff’s claims. 

3Plaintiff has claimed damages for these unpaid claims in

alternate amounts, either $20,000 or $16,319. Cf. Compl. ¶ 13

with Pl.’s Inter. Ansr. No. 3. 

5

Defendant paid plaintiff only $14,205 of the claimed $38,864

in itemized ICC expenses, explaining that plaintiff’s costs

incurred in connection with relocating the septic system were not

covered by the policy. See Murphy Aff. ¶ 13; Bevis Aff. ¶ 12. 

On December 11, 2006, Geissenhainer wrote plaintiff to explain

his SFIP coverage excluded costs associated with moving his

underground septic system, even if the relocation was

necessitated by current law. See Murphy Aff., ¶ 16; Bevis Aff. ¶

13; see also Def.’s Summ. J. Mem., Geissenhainer letter dated

12/11/06 (document no. 9.5). Plaintiff then filed an ICC PoL

form on December 21, 2006. See Document no. 16.2. No further

payments were made. Plaintiff commenced this action on November

13, 2007, to recover the unreimbursed septic system expenses3,

which plaintiff incurred to bring his property into compliance

with applicable floodplain management ordinances and regulations

and which, he contends, fell within Coverage D of the policy, for

ICC expenses. See Bevis Aff. ¶ 12; see also Pl.’s Inter. Ansr.

Nos. 2, 3 & 5. 

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 5 of 17
6

 Discussion

I. Standard of Review

A. Summary Judgment

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248. In ruling on a motion for

summary judgment, the court construes the evidence and all

inferences reasonably drawn therefrom in the light most favorable

to the nonmovant. See Navarro v. Pfizer Corp., 261 F.3d 90, 94

(1st Cir. 2001); Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53

(1st Cir. 2000). 

The party moving for summary judgment bears the initial

responsibility of demonstrating the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 6 of 17
7

(1986). Once the moving party has met its burden, the burden

shifts to the nonmovant to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for it; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v. Bristol

Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing Celotex,

477 U.S. at 323 and Anderson 477 U.S. at 249). Neither

conclusory allegations, improbable inferences, nor unsupported

speculation are sufficient to defeat summary judgment. See

Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir. 2002); see

also Price v. Canadian Airlines, 429 F. Supp. 2d 459, 461 (D.N.H.

2006). Summary judgment provides the means to “pierce the

boilerplate of the pleadings” and “dispos[e] of cases in which no

trial-worthy issue exists.” Quinn v. City of Boston, 325 F.3d

18, 28 (1st Cir. 2003) (citing Suarez, 229 F.3d at 53). 

B. The NFIA

The NFIA was passed to provide insurance for properties

located in flood-prone areas that were uneconomical to insure. 

See 42. U.S.C. § 4001(b) (2203); see also Phelps v. FEMA, 785

F.2d 13, 14 (1st Cir. 1986) (explaining why Congress established

the NFIP). To that end, FEMA administers the NFIP, “which

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 7 of 17
8

provides flood insurance below actuarial rates to the public.” 

Rockland Fed. Credit Union v. Witt, 853 F. Supp. 14, 16 n.1 (D.

Mass. 1994); see also Gowland v. Aetna, 143 F.3d 951, 953 (5th

Cir. 1998) (discussing policy reasons behind the NFIP). While

the NFIA was enacted to insure flood victims were protected, the

terms of SFIPs are strictly enforced because of “‘the duty of all

courts to observe the conditions defined by Congress for charging

the public treasury.’” Phelp, 785 F.2d at 18 (quoting Schweiker

v. Hansen, 450 U.S. 785, 788 (1980) to deny an equitable estoppel

claim). 

FEMA determines the terms and conditions of insurability,

which are set forth in the Code of Federal Regulations (“CFR”). 

See Rockland, 853 F. Supp. at 16 n.1 (citing 42 U.S.C. §

4013(a)). “The actual language of an SFIP is uniformly set forth

in the [CFR] appearing in Appendix A(1) of 44 C.F.R. Part 61,” 

id., and, consequently, the meaning of the policy provisions are

standardized by federal law. See id. The NFIP requires that

only the published SFIP form be used, the terms and provisions of

which cannot be altered, varied or waived except by the express

written consent of FEMA. See 44 C.F.R. §§ 61.13(a), (b), (d) &

(e) (2007); see also Gowland, 143. F.3d at 953. As a result, all

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 8 of 17
9

SFIP provisions must be strictly construed and enforced, because

they are dictated by federal law and federal funds are at stake. 

See id.

When the insurer is a private company issuing a “write your

own” SFIP, like defendant here, the same provisions control, and

the insurer is simply substituted for FEMA, acting as a fiscal

agent for the United States. See Gowland,143 F.3d at 953; see

also 44 C.F.R. § 61.13(f) & § 4071(a). Here, because the facts

surrounding the denial of coverage are undisputed, whether

plaintiff’s claims are covered by the policy presents a question

of law for the court to decide. See Atlas Pallet v. Gallagher,

725 F.2d 131, 134 (1st Cir. 1984) (treating an SFIP like all

other insurance contracts where scope of coverage presents a

question of law for the court). Although federal law controls

disputes over SFIP coverage, standard insurance law principles

still apply, including the rule that, “because insurance policies

are contracts, basic contract rules govern the interpretation of

a policy’s terms.” Id. at 135. 

II. Defendant’s Arguments

1. Conditions Precedent to Recovery

Plaintiff’s SFIP provides that an action to recover money

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 9 of 17
10

under the policy cannot be brought unless plaintiff has “complied

with all the requirements of the policy.” See Pl.’s Policy at

14, § VII, R (“Suit Against Us”). Presumably relying on that

provision, defendant argues that plaintiff’s claim should be

dismissed because plaintiff first failed to properly file a PoL

form, and also failed to commence this suit within the statutory

one year time period to bring an action. See id., § VII, J & R. 

Both arguments are unavailing on summary judgment, however,

because the record is missing critical documents that would

demonstrate whether or not plaintiff satisfied these conditions

precedent to consideration of the merits of his claim. 

The record does not contain copies of either the May 25 or

the June 15, 2006 PoL forms that were filed, which prevents me

from determining whether plaintiff complied with the requirements

for filing his PoL set forth in § VII, J. Likewise, without the

May 25, 2006 PoL, it is impossible to determine whether plaintiff

in fact filed a claim for asbestos removal. A mere inquiry about

the scope of coverage under the policy does not constitute the

filing of a claim for coverage. If plaintiff never made a claim

for asbestos removal, then defendant’s May 26, 2006 letter

explaining that asbestos removal was not covered by the policy

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 10 of 17
4For ease of reference, cites to plaintiff’s SFIP will be

referred to as “Pl.’s Policy” followed by the appropriate

11

cannot be considered a denial of coverage for purposes of

triggering the statute of limitations. 

These issues are not material to the disposition of this

case, however, because, as discussed below, plaintiff’s SFIP does

not cover the expenses he is claiming here. Accordingly, no

further analysis of either the PoL filing requirements or the

statute of limitations is warranted.

2. The Scope of Coverage

Plaintiff’s SFIP provides standardized coverage for Building

and Personal Property, coverages A and B, respectively, “Other

Coverage” listed as coverage C and not relevant here, and

“Increased Cost of Compliance” coverage set forth in section D. 

At issue here is whether the costs plaintiff incurred in

relocating his septic system and well fall within Coverage D, as

ICC expenses. Plaintiff relies heavily on the ICC provisions

that allow reimbursement for costs incurred in bringing the

covered property into compliance with floodplain management laws. 

See Pl.’s Mem. in Supp. of Obj. to M. for Summ. J., NFIP Dwelling

Form, SFIP (document no. 13.2) at 6, § III, D.1 & D.3(b); see

also 44 C.F.R. Pt. 61, App. A(1), III, D (ICC provision).4

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 11 of 17
section, since it is identical to the corresponding CFR

provision. 

12

Plaintiff argues that both the NFIP and local ordinances required

him to move his septic system and well, to conform with current

floodplain management regulations designed to prevent flood

waters from infiltrating sewerage systems, citing 44 C.F.R. §

60.3. He now contends that because he was required by law to

relocate the system, his SFIP should reimburse him for those

expenses under its ICC coverage. 

Although Coverage D clearly provides reimbursement for

expenses incurred to bring covered property into compliance with

the floodplain regulatory scheme, a close reading of the policy

demonstrates that it is limited to specific types of property,

which does not include septic systems and wells. Several

sections of the policy support a reading that excludes coverage

for septic systems and wells. 

The first provision in Coverage D for ICC coverage, provides

generally:

This policy pays you to comply with a State

or local floodplain management law or ordinance

affecting repair or reconstruction of a structure

suffering flood damage. Compliance activities

eligible for payment are: elevation, floodproofing, 

relocation, or demolition (or any combination of

these activities) of your structure.

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 12 of 17
5Other sections of the regulations use the term to describe 

buildings. For example, SFIP coverage for contents provides: 

“whenever a structure is subject to imminent collapse or

subsidence as a result of erosion or undermining caused by waves

or current of water . . ..” See 44 C.F.R. § 63.5.

13

Eligible floodproofing activities are limited to:

a. Nonresidential structures.

b. Residential structures with basements

 that satisfy FEMA’s standards published

 in [44 C.F.R. 60.6(b) or (c)].

Pl.’s Policy at 6, § III, D.1 (emphasis added). Although the

policy does not include the term “structure” in its definition

section, see id. § II., it defines a “building” as “a structure

with two or more outside rigid walls and a fully secured roof,

that is affixed to a permanent site,” id. § II, B.6, which

suggests that the term “structure” was intended to cover

buildings and similar objects that have been or are being

constructed.5 The definition of “building” also explicitly

excludes a “gas or liquid storage tank,” id., which a septic

system and well more closely resemble. 

The policy also explicitly provides for the type of property

that is eligible for ICC coverage:

A structure covered under Coverage A - Building

Property, sustaining a loss caused by a flood

as defined by this policy must

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 13 of 17
14

(1) Be a “repetitive loss structure” . . .; or 

(2) Be a structure that has had flood damage

 in which the cost to repair equals or

 exceeds 50 percent of the market value

 of the structure at the time of the flood.

 The State or community must have a substantial

 damage provision in its floodplain management

 law or ordinance being enforced against the

 structure.

Pl.’s Policy at 7, § III, D. 3 (ICC coverage eligibility

provision). Plaintiff’s property was eligible for ICC coverage

because the damage to his home exceeded 50% of its market value.

See id. This provision further supports a reading of the term

structure to be a building or something similarly constructed,

that can be ascribed a distinct market value, rather than an

underground septic system or well, which generally does not have

a market value separate from the property itself. 

Next, the policy sets forth a detailed list of costs that

are excluded from coverage, including in relevant part:

Under this Coverage D - Increased Cost of 

Compliance, we will not pay for: . . .

(b) The cost associated with enforcement

of any ordinance or law that requires 

any insured or others to test for,

monitor, clean up, remove, contain,

treat, detoxify or neutralize, or in

any way respond to, or assess the 

effects of pollutants.

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 14 of 17
15

. . . 

(g) Any compliance activities needed to

bring additions or improvements made

after the loss occurred into compliance

with State or local floodplain management

laws or ordinances.

Pl.’s Policy, § III, 5 (exclusions). The costs plaintiff

incurred relocating his septic system and well to comply with the

Town of Amherst’s floodplain regulations, which in turn are

federally mandated in order to participate in the NFIP, fall

within these subsections, which explicitly exclude coverage.

Finally, the last subsection of Coverage D, for ICC

expenses, provides: “All other conditions and provisions of this

policy apply.” Pl.’s Policy at 8, § III, D.6.b. The very next

section of the policy sets forth “Property Not Covered.” See

id., § IV. The language is unambiguous and clear:

We do not cover any of the following property:

. . .

8. Underground structures and equipment, 

 including wells, septic tanks, and

 septic systems.

Id. at 8-9, § IV, 8 (emphasis added). Also in this § IV, for

“Property Not Covered,” is an “Exclusions” provision, that

explicitly excludes from coverage any costs incurred to comply

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 15 of 17
16

with “any ordinance or law requiring or regulating the

construction . . . renovation, or repair of the property,” unless

the activity was specifically described as eligible for ICC

coverage in Section D. See id. at 9, § V, 6.

The above-cited provisions of plaintiff’s SFIP dictate the

result here. All of the costs plaintiff incurred to relocate the

septic system and the well on his property to bring them into 

compliance with current floodplain management regulations are not

eligible ICC expenses and are not covered by the policy. The

terms of the SFIP are clear and definite, and nothing in the

record suggests that these unambiguous provisions were waived or

altered to effect another result. Defendant properly denied

plaintiff’s claim for reimbursement. 

Conclusion

For the reasons set forth above, defendant’s motion for

summary judgment (document no. 9) is granted. The clerk is

ordered to close the case.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 16 of 17
17

Date: December 2, 2008

cc: Jon H. Levenstein, Esq.

Dennis T. Ducharme, Esq.

Case 1:07-cv-00370-JM Document 21 Filed 12/02/08 Page 17 of 17