Richard Pecarovich v. Allstate Insurance Company

Opinion by Judge BROWNING; Dissent by Judge TALLMAN.

OPINION

Richard Pecarovich’s home suffered major damage after an El Nino rainstorm struck Southern California in 1998. He brought suit to collect under his Standard Flood Insurance Policy with Allstate, a private insurer under the National Flood Insurance Program. The district court granted summary judgment for Allstate on the ground that the damage was not caused by a covered “flood.” We reverse.

*654 I.

Pecarovich’s home sits at the base of a canyon in Laguna Beach, California. After he saw Allstate television advertisements warning of anticipated El Nino storms, Pecarovich purchased a flood insurance policy from Allstate under the National Flood Insurance Program.

On February 24-25, 1998, a torrential rainstorm struck the Laguna Beach area. Rain ran down the hill behind Pecarovich’s home, gushed out of a drainage collection system, flowed around his house and pooled in his backyard patio.

The concrete slab under his home developed major breaks and pulled away from a wall, rendering the home uninhabitable. Pecarovich reported the damage to Allstate and Allstate assigned an independent claims adjuster, Richard Rossi, to…

dissenting:

Because I believe Pecarovich’s claim is proeedurally barred under well settled law, I respectfully dissent.

A claimant must strictly comply with the terms of the Standard Flood Insurance Policy (“SFIP”). 1 Flick v. Liberty Mutual, 205 F.3d 386, 387 (9th Cir.2000) (concluding “that the strict compliance rule is applicable to policies written by private insurance companies under the National Flood Insurance Program”); Wagner v. FEMA, 847 F.2d 515 , 518 (9th Cir.1988) (“The SFIP’s procedural requirements must be taken seriously: They constitute conditions precedent to a waiver by the federal government of its sovereign immunity.”). See also Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 , 68 S.Ct. 1 , 92 L.Ed. 10 (1947) (recognizing the “duty of all courts to observe the conditions defined by Congress for charging the public treasury”). Thus, when seeking to avoid the procedural hurdles imposed by the SFIP, the claimant faces a “heavy burden.” Flick, 205 F.3d at 390 .

Pecarovieh did not meet the SFIP procedural requirements. He did not file a proof of loss within 60 days of the alleged flood as required by the SFIP; in fact, he *660 never filed a proof of loss.…

309 F.3d 652 Richard PECAROVICH, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee. No. 00-55400. United States Court of Appeals, Ninth Circuit. Submitted December 7, 2001. * Filed October 31, 2002. Robert S. Gerstein, Santa Monica, CA, Paul S. Sigelman, Beverly Hills, California, for the plaintiff-appellant. Peter H. Klee, Seth M. Friedman, Luce, Forward, Hamilton & Scripps, San Diego, CA, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV 99-02129-ABC. Before BROWNING, REINHARDT, and TALLMAN, Circuit Judges. Opinion by Judge BROWNING; Dissent by Judge TALLMAN. OPINION BROWNING, Circuit Judge. 1 Richard Pecarovich's home suffered major damage after an El Nino rainstorm struck Southern California in 1998. He brought suit to collect under his Standard Flood Insurance Policy with Allstate, a private insurer under the National Flood Insurance Program. The district court granted summary judgment for Allstate on the ground that the damage was not caused by a covered "flood." We reverse. I. 2 Pecarovich's home sits at the base of a canyon in…