Another federal district court in Florida has confirmed that in- sureds suing under a standard
flood insurance policy (“SFIP”) issued
under the National Flood Insurance Program (“NFIP”) may not be awarded attorneys’ fees under state law or interest on
their claim, and that they are not entitled
to a jury trial.
Berlin Sanchez and Sahily Soto sued
Selective Insurance Company of the
Southeast, alleging that Selective had
breached the insurance policy it had
issued to them by refusing to pay the
full amount of insurance proceeds they
sought for water damage suffered to their
The plaintiffs sought damages, plus interest, court costs, and reasonable attor-neys’ fees pursuant to Fla. Stat. § 627.428,
as well as a jury trial.
Selective filed a partial motion to dismiss. It argued that because it was a write-your-own (“WYO”) insurer participating
in the NFIP pursuant to the National
Flood Insurance Act of 1968 (“NFIA”)
and related regulations propagated by the
Federal Emergency Management Agency
(“FEMA”), and because it had issued an
SFIP to the plaintiffs, the plaintiffs were
not entitled to recover attorneys’ fees or
a jury trial.
The District Court’s Decision
The district court found Selective’s motion more akin to a motion to strike, and
then granted the motion.
In its decision, the district court first
agreed with Selective that the plaintiffs’
demand for statutory attorneys’ fees pur-
suant to Fla. Stat. § 627.428 was improper
because the terms of the SFIP issued to
the plaintiffs were set by Congress and
codified by regulation so as to preempt
any entitlement to attorneys’ fees under
Therefore, the district court ruled,
to the extent that the plaintiffs’ complaint sought attorneys’ fees under Fla.
Stat. § 627.428, that request had to be
stricken from their complaint. (For
the same reason, the district court, sua
sponte, also struck the plaintiffs’ request
The district court then agreed with Selective that the plaintiffs were not entitled
to a jury trial. It reasoned that a suit for
benefits under the NFIP raised the same
concerns as a suit against a governmental
entity because benefits under the NFIP
were paid by the federal treasury.
Accordingly, a suit under the NFIP,
despite the issuance of the SFIP by a private WYO carrier, amounted to a claim
against the United States Treasury, the
district court said.
Absent the federal government’s affirmative and unambiguous consent, it
added, the Seventh Amendment right
to trial by jury did not apply in actions
against the federal government. The district court pointed out that the NFIA did
not grant plaintiffs a right to a jury trial
and, accordingly, it struck the plaintiffs’
request for a jury trial.
The case is Sanchez v. Selective Ins. Co.,
No. 18-21472-Civ-Scola (S.D. Fla. Jan. 2,
Steven A. Meyerowitz, Esq.,
the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law
Report, and the founder and president
of Meyerowitz Communications Inc.
This story is reprinted with permission
from FC&S Legal, the industry’s
only comprehensive digital resource
designed for insurance coverage
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Claimants Should Beware of
Suing Under NFIP Policies
By Steven A. Meyerowitz