McHugh
McHugh v. United Service Automobile Ass'n
Opinion
Dissenting Opinion
Graber, J.
dissenting:
I respectfully dissent. The majority s opinion is inconsistent with the record, conflicts with precedent on important matters of federal law, modifies a valid federal regulation, and reaches an unjust result.
THE INSURANCE POLICY AND THE
GOVERNING REGULATIONS
This appeal involves the interpretation of a Standard Flood Insurance Policy (SFIP), the wording of which is prescribed by the National Flood Insurance Act of 1968(Act) and by Federal Emergency Management Agency (FEMA) regulations, found at 44 C.F.R. Pt. 61, App. A(l). The Act grants to the Director of FEMA the authority to promulgate regulations pertaining to SFIPs. 42 U.S.C. § 4121 (a)(1). The SFIP is a single-risk insurance policy that “only provide[s] coverage for direct physical loss by or from flood.” 44 C.F.R. Pt. 61, App. A(l) (emphasis in original). 1 The emphasized phrase is defined as “any loss in the nature of actual loss of or physical damage, evidenced by physical changes, to the insured property (building or personal property) which is directly and proximately caused by a flood.” Id. (emphasis added; emphasis omitted).
FEMA regulations define the terms “flood” and “flooding” to include:
44…
Lead Opinion
Lay, J.
Opinion by Judge LAY; Dissent by Judge GRABER.
Frank and Mary McHugh filed a complaint for a declaratory judgment against the United Service Automobile Association insurance company (“USAA”) and the Director of the Federal Emergency Management Agency (“FEMA”) alleging that (1) their beach house which was insured by USAA under a Standard Flood Insurance Policy (“SFIP”) was damaged by a mudslide, (2) they made a claim to USAA under the SFIP, and (3) USAA improperly denied their claim. The district court granted summary judgment for USAA, holding that the damage to the McHughs’ home was caused by a landslide which is not covered by the policy. We reverse the decision of the district court.
BACKGROUND
Under the National Flood Insurance Act of 1968 (“Act”), codified at 42 U.S.C. §§ 4001 et seq. (1994), the FEMA is authorized to provide federally subsidized flood insurance to individual homeowners. The language of the SFIP is prescribed by the Act and FEMA regulations, although the policy itself is issued through a private insurer. Frank and Mary McHugh purchased a SFIP from USAA to provide coverage for their beach house located on the Hood Canal in Seabeck, Washington.