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Home Built Too Late for Flood Coverage

A Poquoson homeowner does not have coverage for certain flood damage to his elevated home near Roberts Creek, within a FEMA-designated Special Flood Hazard Area, because public records submitted by defendant insurance carrier establish that plaintiff’s home was built after May 16, 1977, the date the initial Flood Insurance Rate Map, took effect; the Newport News U.S. District Court grants judgment for the insurance carrier on all plaintiff’s claims except his claims for damages related to replacement of a vapor barrier and repair of foundation wall vents.

In denying coverage for a portion of the losses claimed by plaintiff, Nationwide relied on policy language limiting coverage for flood losses to property located below the lowest elevated floor of an elevated post-FIRM (Flood Insurance Rate Map) situated in a Special Flood Hazard Area. The effective date of the initial FIRM for the community where plaintiff’s property is located is May 16, 1977. A threshold issue is whether construction of plaintiff’s home was started on or after May 16, 1977.

Nationwide, relying on public land records, contends the home was built in 1978, and construction began no earlier than Aug. 4, 1977, the date when the subdivision plat map for the community was approved. Plaintiff, relying on statements by a deceased insurance agent and an unidentified real estate agent, argues his home was built in 1974 or 1975.

In support of its position that plaintiff’s home was constructed after May 16, 1977, Nationwide has submitted land records obtained from an online database maintained by the city of Poquoson, which identify 1978 as the “Year Built” for plaintiff’s home. From its own files, Nationwide also has submitted 1) a copy of the flood insurance application submitted for plaintiff’s property, which indicates a construction date/permit date of April 15, 1978; 2) a copy of correspondence dates Nov. 11, 2005, forwarding the same application form to plaintiff’s insurance agent for his review; and 3) a copy of the declarations page of the flood insurance policy issued to plaintiff, which describes the home as “post-firm construction.” Nationwide further relies on a stipulation that the city granted an approval of plat for the subdivision, where plaintiff’s home is located, on Aug. 4, 1977.

Nationwide has cited a substantial body of documentary evidence to establish that plaintiff’s home was constructed at some time after May 16, 1977, the effective date of the initial FIRM for the area where plaintiff’s property is located. The burden shifts to plaintiff to show the existence of a genuine dispute of material fact.

None of the documents submitted by plaintiff – the homeowners’ policy declarations page, the statement of an unknown real estate agent or a document related to a neighbor’s flood claim with a pre-FIRM construction date for the neighbor’s home – constitutes admissible evidence upon which plaintiff may rely to establish a genuine dispute of material fact.

The court finds that Articles II(A)(8) and III(B)(3), which limit coverage with respect to property located below the lowest elevated floor of an elevated post-FIRM building, apply to limit coverage with respect to the flood losses claimed by plaintiff.

The court also rejects plaintiff’s claim that he is entitled to coverage for $16,253 in losses that were improperly denied by Nationwide. Considering the clear and unambiguous policy language, the court concludes the Standard Flood Insurance Policy affords full coverage only for direct physical damage to property located at or above the lowest elevated floor of an elevated post-FIRM building, and limited coverage with respect to direct physical damage to property below the lowest elevated floor of an elevated post-FIRM building. It is evident Nationwide’s denial of coverage for each of these items was entirely appropriate.

The court grants judgment for Nationwide with respect to plaintiff’s claims for coverage of post-flood termite treatment.

However, neither party is entitled to judgment as a matter of law on plaintiff’s claim for $760 in damages for removal and replacement of a vapor barrier on the earthen floor of the crawl space below his home and his claim for $785 for repair and replacement of foundation vents.

Davis v. Nationwide Mutual Fire Ins. Co. (Stillman) No. 4:10cv101, Sept. 9, 2011; USDC at Newport News, Va.; Roman Davis, pro se; L. Steven Emmert for defendant. VLW 011-3-502, 40 pp.

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