Scherz

ORDER. GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND CAUSE OF ACTION

INTRODUCTION

As Justice Jackson once good-naturedly confessed, “[pjrecedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others.... Baron Bromwell extricated himself from a somewhat similar embarrassment by saying, ‘The matter does not appear to me now as it appears to have appeared to me then.’ ” McGrath v. Kristensen, 340 U.S. 162, 177-78 , 71 S.Ct. 224, 233 , 95 L.Ed. 173 (1950) (Jackson, J., concurring).

A little more than one year ago, in Cohen v. State Farm Fire and Cas., 68 F.Supp.2d 1151 (C.D.Cal.1999), in denying a motion to dismiss brought by a private “Write Your Own” (“WYO”) insurer that had issued a Standard Flood Insurance Policy (“SFIP”), this Court ruled that the insurer had not established that the National Flood Insurance Act (“NFIA”), 42 U.S.C. § 4001 et seq., preempted the insured’s claim for breach of the implied covenant of good faith and fair dealing. In this case, Defendant South Carolina Insurance Company presents the same issue in its motion to dismiss plaintiffs state law-based claims. Not…