FILED

NOT FOR PUBLICATION

NOV 18 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SURFSAND RESORT, LLC, an Oregon No. 18-35607 limited liability company, D.C. No. 3:17-cv-00866-BR Plaintiff-Appellant,

v. MEMORANDUM*

NATIONWIDE MUTUAL FIRE

INSURANCE CO., an Ohio company;

HARLEYSVILLE INSURANCE

COMPANY, a Pennsylvania company,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Argued and Submitted October 22, 2019 Portland, Oregon

Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.

Surfsand Resort claims that Nationwide owes $396,234.92 under an

insurance policy governed by the National Flood Insurance Act, but Surfsand

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. never filed a signed and sworn Proof of Loss for that amount, a condition

precedent to the recovery of funds under a Standard Flood Insurance Policy. Flick

v. Liberty Mutual Fire Ins. Co., 205 F.3d 386, 394–96 (9th Cir. 2000). Surfsand

contends that this failure should be excused through the doctrine of equitable

estoppel. The District Court did not consider whether Nationwide can be estopped

while acting as an agent of the federal government, but we may affirm the District

Court’s grant of summary judgment on any ground properly supported by the

record. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir.

2001).

Surfsand cannot meet the “stringent test” applicable to such claims. Wagner

v. Director, FEMA, 847 F.2d 515, 519 (9th Cir. 1988); see also Flick, 205 F.3d at

393 n.10 (explaining that a claim against a WYO insurer on a Standard Flood

Insurance Policy is, “in reality, a claim against the federal government”). None of

the statements purportedly attributable to Nationwide constitute “affirmative

misconduct going beyond mere negligence.” Wagner, 847 F.2d at 519 (citing

Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)). The Standard Flood

Insurance Policy imposes a nondelegable duty on Surfsand to submit a Proof of

Loss, which Surfsand cannot now avoid by pointing to Valencia’s equivocal

statements about how and when to submit it. Valencia, in fact, repeatedly

2 reminded Surfsand of its nondelegable duty. There remains no triable issue of

material fact.

The parties dispute whether the lowest level of the hotel is a “basement” and

therefore expressly excluded from coverage under the terms of the policy. We

need not resolve that question, since the failure to file a signed and sworn Proof of

Loss form defeats the claim for damages.

The District Court did not err. The record reflects that the only Proof of

Loss form submitted claimed $98,765.08. Nationwide promptly paid that amount,

even though the Proof of Loss was submitted after the required sixty (60) day

deadline. With respect to the $396,234.92, Surfsand failed to “comply strictly with

the terms and conditions that Congress has established for payment.” Flick, 205

F.3d at 395–96.

AFFIRMED.

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