When a federal judge analyzes an insurance dispute and states that "pigs can fly and hell has frozen over," I pay attention. In Brooks v. Foglio,1 the Honorable Joseph Eron Irenas noted the following and explained the facts:
"In what is almost certainly the first lawsuit of its kind, Plaintiff Marjorie Brooks alleges that her insurance company paid her too much money after her home was damaged by Hurricane Sandy. The Court thus takes judicial notice of the following facts: pigs can fly and hell has frozen over.
On October 29, 2012, Plaintiff’s home sustained flood damage as a result of Hurricane Sandy. Plaintiff had flood insurance pursuant to the National Flood Insurance Program (“NFIP”).Plaintiff’s flood insurance policy was a Standard Flood Insurance Policy (“SFIP”) issued by Fidelity National Indemnity Insurance Company (“Fidelity”).
After Hurricane Sandy, Plaintiff made a flood loss claim to Fidelity. Plaintiff hired a public adjuster, namely, Dennis Molette of All Property Adjustment Services, Inc., to handle the details of the flood damage claim. Additionally, the Colonial Claims defendants were hired by Fidelity to adjust Plaintiff’s claim. At oral argument, Plaintiff’s attorney stated that the adjusters valued the damage to Plaintiff’s home at $80,000.00, and Plaintiff accepted this amount from Fidelity.
Plaintiff hired the Foglio Defendants to handle the repairs to her home. Plaintiff alleges that the Foglio Defendants ultimately walked off the job, leaving an enormous amount of debris both inside and outside of Plaintiff’s home, as well as an extensive amount of work in various stages of incompleteness.
Plaintiff filed her Complaint in the Superior Court of New Jersey, Cape May Division, alleging causes of action sounding in contract, fraud, and negligence against all defendants. As to the Molette Defendants and the Colonial Claims Defendants, Plaintiff alleges not that there was an underpayment of the policy, but rather an “overpayment by fraud.” At oral argument, Plaintiff’s attorney stated his client’s view that the damage to Plaintiff’s home only totaled approximately $5,000. Fidelity is not a party to this lawsuit." (citations omitted)
I have never seen a case like this, either. But, Superstorm Sandy has certainly generated unique experiences.
While the Court went on to analyze the nuances of federal jurisdiction, it did note that state law remedies are not available against adjusters hired to handle flood adjustment for Write Your Own carriers:
"Although the Court explains that preemption does not equate to jurisdiction under § 4072, the Court does agree with the Colonial Claims Defendants that state law causes of action against persons involved in the claims adjustment process are preempted by federal law…Thus, if the Court were to find that removal were proper in this case, it would dismiss the claims against the Colonial Claims Defendants."
All this makes me think about Maxwell, the flying GEICO pig:
1 Brooks v. Foglio, No. 13-2504, 2013 WL 3354430 (D. N.J. July 2, 2013).