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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RASHAD BARMIL,

 Plaintiff,

v.

THE STANDARD FIRE INSURANCE 

COMPANY,

 Defendant.

Civil Action No.: 11-2377 (JLL)

OPINION

LINARES, District Judge.

This matter comes before the Court by way of Defendant Standard Fire Insurance 

Company (“Defendant”)’s Motion for Partial Judgment on the Pleadings pursuant to Fed. 

R. Civ. P. 12(c), seeking judgment on Plaintiff Rashad Barmil (“Plaintiff”)’s flood claim 

as stated in Count III of his Amended Complaint. [Docket Entry No. 26]. The Court has 

considered the submissions made by both Parties. No oral argument was heard pursuant 

to Fed. R. Civ. P. 78. Based on the following reasons, Defendant’s Motion is granted. 

I. BACKGROUND

Defendant Standard Fire Insurance Company is a private insurance company and 

member of the Write-Your-Own (“WYO”) Program created by FEMA to allow private 

companies to issue, under their own names as insurers, Standard Flood Insurance Policies 

(“SFIP”s). Plaintiff Rashad Barmil is the named insured in a SFIP issued by Defendant 

to insure the single family residence that he purchased in 2005, located at 106 Riverlawn 

Drive in the Township of Wayne, County of Passaic, New Jersey. (Am. Compl., ¶¶ 2-4). 

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Since the residence was in a flood zone, Plaintiff was required to purchase and maintain 

flood insurance on the premises, and he accordingly purchased Flood Dwelling Policy

Number 6010064905 from Defendant, renewed annually beginning March 30, 2006 

through and including March 30, 2011. (Id., ¶¶ 3-4). The aforesaid SFIP afforded 

coverage for flood damage up to $225,000.00 for the structure and $50,000 for contents 

in 2010; and for $250,000.00 for the structure and $50,000 for contents in 2011. (Id., ¶ 

5). 

On or about March 17, 2010, the Passaic River flooded and Plaintiff’s property 

sustained water damage alleged by Plaintiff to amount to approximately $200,000.00 in 

material and labor to repair. (Id., ¶ 6). On April 26, 2011, Plaintiff filed a Complaint 

with this Court claiming that Defendant breached its legal obligations under Plaintiff’s 

Policy to promptly assess his flood claim and compensate him for the entire loss he 

suffered as a result of the March 17, 2010 flooding event. [Docket No. 1]. However, on 

or about March 7, 2011, the Passaic River flooded again, and Plaintiff’s property 

sustained water damage alleged by Plaintiff to amount to approximately $300,000.00 in 

material and labor to repair. Following the March 7, 2011 flooding event, Plaintiff 

submitted a Proof of Loss form on May 7, 2011. (Pl. Opp’n Def. Mot. J. Pleadings, at ¶ 

10). Plaintiff then filed an Amended Complaint on May 27, 2011. [Docket No. 7]. The 

Amended Complaint incorporating an additional count, Count III, claiming that 

Defendant again breached its legal obligations under Plaintiff’s Policy when it did not 

indemnify Plaintiff for the full extent of his loss and damage despite Plaintiff having 

submitted a timely Proof of Claim to Defendant in the amount of $300,000.00. (Am. 

Compl., Count III, ¶¶ 1-6). Defendant filed an Answer to Count III of the Amended 

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Complaint on July 29, 2011, denying any liability as to that additional claim. [Docket 

No. 15].

Defendant brought this Motion for Partial Judgment on the Pleadings only as to 

Count III of Plaintiff’s Amended Complaint, claiming that Plaintiff’s claim regarding the 

May 27, 2011 flooding event is invalid for two reasons: 1) Plaintiff failed to timely file 

his Proof of Loss on or before the sixty-day deadline required under 44 C.F.R. Pt. 61, 

App. A(1), Art. VII(J); and 2) Plaintiff’s Proof of Loss as untimely filed failed to provide 

specifications of the damaged buildings and detailed repair estimates as required under 44 

C.F.R. Pt. 61, App. A(1), Art. VII(J)(4). (Def. Mot. J. Pleadings, at 6). 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) provides: “After the pleadings are closed—

but early enough not to delay trial—a party may move for judgment on the pleadings.” 

Fed. R. Civ. P. 12(c). Under Rule 12(c), a court must view the facts in the pleadings and 

any inferences drawn therefrom in the light most favorable to the nonmoving party, and 

the motion should not be granted “unless the moving party has established that there is no 

material issue of fact to resolve, and that it is entitled to judgment as a matter of law.” 

Perez v. Griffin, 304 Fed. Appx. 72, 74 (3d Cir. 2008)(citing Mele v. Fed. Reserve Bank 

of N.Y., 359 F.3d 251, 253 (3d Cir. 2004)). A court is not required to accept sweeping 

legal conclusions cast in the form of factual allegations, unwarranted inferences or 

unsupported conclusions in its Rule 12(c) review. Morse v. Lower Merion Sch. Dist., 

132 F.3d 902, 906 (3d Cir. 1997).

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III. DISCUSSION

All actions arising out of disputes over coverage under a SFIP are governed by the 

National Flood Insurance Act of 1968, 42 U.S.C. § 4001, et seq., the regulations 

promulgated thereunder by the Federal Emergency Management Act (“FEMA”), and the 

federal common law. 44 C.F.R. Pt. 61, App. A(1), Art. IX; Suopys v. Omaha Prop. & 

Cas., 404 F.3d 805, 807 (3d Cir. 2005). As stated infra, FEMA authorizes WYO 

Companies to issue SFIPs and adjust SFIP claims as fiscal agents of the United States. 

44 C.F.R. §§ 61.13(f), 62.23 and 42 U.S.C. § 4071(a)(1) (2003). A WYO Company must 

issue SFIPS “in the form and substance of the standard arrangement” as set forth in 44 

C.F.R. Part 61, Appendix A, and must handle SFIP claims by applying internal company 

standards in light of FEMA guidance. 44 C.F.R. § 62.23(a); Suopys, 404 F.3d at 807. 

“WYO carriers may not alter, amend, or waive any provision of condition of the SFIP 

absent express written consent from the Federal Insurance Administrator.” Suopys, 404 

F.3d at 807. As a prerequisite to bringing an action against a WYO Company to contest a 

denial of coverage, an insured must perfect his obligations under the SFIP. 44 C.F.R. Pt. 

61, App. A(1), Art. VII(R). The Third Circuit strictly construes a claimant’s obligations 

to comply with SFIP provisions: “Because any claim paid by a WYO Company is a 

direct charge to the United States Treasury, strict adherence to the conditions precedent to 

payment is required.” Suopys, 404 F.3d at 809 (citing Federal Crop Ins. Corp. v. Merrill, 

332 U.S. 380, 384-85 (1947)). The District Court of New Jersey has consistently 

followed the holding in Suopys, stating in Eodice v. Selective Insurance Company of 

America that “courts do not have the discretion to rewrite the SFIP’s filing 

requirements,” and reasserting the categorical rejection by the Suopys court of “the 

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contention that the representations of a WYO insurer or adjuster could waive the SFIP 

filing requirements.” 2010 U.S. Dist. LEXIS 13090 (D.N.J. Feb. 8, 2010), at * 18. 

All SFIPs require that the insured timely submit a signed and sworn Proof of Loss 

within sixty days of the claimed loss. 44 C.F.R. Pt. 1, App. (A)(1), art. VII(J). “The 

SFIP places the onus on the insured to file the proof of loss within 60 days regardless of 

the representations and assistance, or lack thereof, provided by the insurer or its adjuster.” 

Suopys, 404 F.3d at 810 (citations omitted). This jurisdiction has moreover “repeatedly 

rejected claims by policy holders that a WYO Company waived, or somehow extended, 

the 60-day requirement absent a written waiver from FEMA.” Sodi II, LLC v. Selective 

Insurance Company of America, 2008 U.S. Dist. LEXIS 2214 (D.N.J. Jan. 11, 2008), at 

*8. Therefore, an insured’s failure to comply with the proof of loss provision bars 

recovery on an otherwise valid claim. Suopys, 404 F.3d at 810.

Defendant argues that Plaintiff’s Proof of Loss filing regarding damages sustained 

in the March 17, 2011 flooding event must fail because Plaintiff did not file a timely 

Proof of Loss for any losses suffered on that date. Specifically, Defendant argues that 

any Proof of Loss form for said event needed to be filed on May 6, 2011, sixty days after 

the flooding event, but it was instead filed “after normal business hours on May 7, 2011.” 

(Def. Mot. J. Pleadings, at 14). In the alternative, Defendant argues that Plaintiff is not 

entitled to coverage because Plaintiff failed to provide “the required supporting 

documentation and itemization, including documents verifying the alleged flood damage 

from the 2011 flood and detailed repair estimates,” and Plaintiff also failed to provide 

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“required documentation that the repairs from [separate] 2010 and 2007 flood losses . . . 

had been made prior to the alleged 2011 flood event.” (Id., at 7).1 

Plaintiff does not contest that he filed the Proof of Loss form on May 7, 2011. 

(Pl. Opp’n Def. Mot. J. Pleadings, at ¶ 10). However, Plaintiff argues that the issue is 

“factual, rather than legal,” and provides evidence of notifications and e-mails between 

himself and the adjuster assigned to his claim by Defendant, Mr. Scott Swisher. 

Specifically, Plaintiff argues that he had been in consistent correspondence with Mr. 

Swisher to coordinate the preparation of the Proof of Loss form at least beginning in 

March 26, 2011, that Mr. Swisher had assured him that he had “completed [his] repair 

estimates,” and that he had been advised that he needed to “forward them to Keith 

Fountain for review prior to issuing . . . a proof of loss.” (Id., at ¶¶ 4-6). Despite this 

coordination, however, Plaintiff alleges he was eventually informed that “the carrier 

would not allow the adjuster to provide [all requested information regarding the loss] to 

[him] for review, execution and submission to Standard Fire.” (Id., at ¶9). After 

receiving a communication on April 29, 2011 from Ms. Susan Townley, the Claims 

Examiner at Flood Division Services for the Defendant, where Ms. Townley requested

additional materials to process his claim, Plaintiff “became convinced that neither the 

carrier, nor its adjuster had any intention of helping [him] and [he] submitted [his] own 

Proof of Loss by reply email on May 7, 2011.” (Id., at ¶¶ 10). 

Despite Plaintiff’s factual assertions regarding the context of the filing of his 

Proof of Loss claim, there is no dispute of material fact that Plaintiff submitted his Proof 

 

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Because the Court agrees with Defendant that Plaintiff’s claims are barred by the requirements of SFIP’s 

proof of loss provision, the Court does not reach Defendant’s arguments regarding other material not 

submitted as part of Plaintiff’s Proof of Loss form. The Court does however note that, at Point 5 next to the 

“Full Cost of Repair and Replacement” portion of the Proof of Loss form, Plaintiff clearly wrote “See 

Report Sent to Insurance,” a notation not addressed by Defendant.

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of Loss form on May 7, 2011, one day after the required sixty-day limit. The Third 

Circuit has clearly held that the sixty-day limit must be strictly construed, “regardless of 

the representations and assistance, or lack thereof, provided by the insurer or its adjuster.” 

Suopys, 404 F.3d at 810 (citations omitted). 

To the extent that Plaintiff’s recital of facts regarding his communications with 

his adjuster can be construed as an argument for estoppel based on representations made 

and advice given to Plaintiff by the adjuster and the carrier, that argument must also fail. 

The Third Circuit has held that a private party can only estop government agents from 

strictly enforcing the law in those extraordinary cases where the private party shows 

“affirmative misconduct on the part of the government officials.” United States v. 

Asmar, 827 F.2d 907, 912 (3d Cir. 1987); Miller v. Selective Insurance Company of 

America, 2009 U.S. Dist. LEXIS 116332 (D.N.J. Dec. 15, 2009), at * 15-16. In this case, 

Plaintiff cites to no facts demonstrating affirmative misconduct. On the contrary, all emails provided in Plaintiff’s exhibits demonstrate efforts by the adjuster and the carrier to 

resolve Plaintiff’s claims and request additional information needed to prepare his Proof 

of Loss form. It was only after additional information was requested by the Claim 

Examiner in Plaintiff’s case that Plaintiff decided to file his own Proof of Loss form. At 

most, the record supports the conclusion that the adjuster and other claim processors were 

communicating poorly or even engaged in negligent claim handling, but such conduct 

does not rise to the level of affirmative misconduct. See Phelps v. FEMA, 785 F.2d 13 

(1st Cir. 1986) (rejecting plaintiff’s estoppel claim despite the fact that government 

representatives erroneously assured plaintiff that he did not have to file a proof of loss); 

Crisci v. United States, 2009 U.S. Dist. LEXIS 86095 (W.D. Pa. Sept. 21, 2009)(noting 

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that affirmative misconduct is more than “mere omission, negligent failure, or erroneous 

oral advice”); Miller v. Selective Insurance Company of America, 2009 U.S. Dist. LEXIS 

1116332 (finding that plaintiff’s estoppel argument based on adjuster’s representations 

and advice failed because misrepresentations not egregious enough to estop government 

agents from strictly enforcing the law). 

As a result, under any theory proffered by Plaintiff, the uncontested fact that he 

failed to timely submit his Proof of Loss form to Standard Fire with respect to the March

7, 2011 damage—a condition precedent to Standard Fire’s obligations under the SFIP—

precludes Plaintiff’s claim for benefits under that claim as a matter of law.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Partial Judgment on the 

Pleadings with regard to Count III of Plaintiff’s Amended Complaint is GRANTED. An 

appropriate Order accompanies this Opinion.

DATED: November 28, 2011 /s/ Jose L. Linares_____________

United States District Judge

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