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Is FEMA's Superstorm Sandy review process working?

Byline: Steven A. Meyerowitz, Esq., Director, FC&S Legal

This story is reprinted with permission from FC&&S Legal, the industry's only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.

A homeowner from Long Island is suing the Federal Emergency Management Agency (FEMA), various FEMA officials, and Wright National Flood Insurance Company, seeking payment of his Superstorm Sandy claim through FEMA's Superstorm Sandy Claims Review (SCR) process. Unhappy with what he said he has been offered under the SCR, the homeowner alleged in his lawsuit that the defendants' actions were "indefensible, arbitrary, capricious, and directly contrary" to his rights.

The complaint

David Clutter alleged in his complaint that he had purchased flood insurance on his home in Long Beach, N.Y., from Wright Flood, which had issued a flood insurance policy to him under the National Flood Insurance Program (NFIP). He contended that his home suffered "severe flood damage" when Superstorm Sandy struck on Oct. 29, 2012, causing "massive damage" to his home's foundation.

Clutter filed a claim with Wright, but contended that it underpaid his Superstorm Sandy claim by more than $160,000.

Clutter said that he participated in the SCR, which reopened his Superstorm Sandy claim for FEMA review.

He alleged that, in its review of his Superstorm Sandy claim as part of the SCR, FEMA determined that the damage to foundation of his property had not been caused by Superstorm Sandy, but by Hurricane Irene, in 2011.

Related: Couple sues FEMA over refusal to review Sandy damage claims

Damage from Hurricane Irene?

According to Clutter, FEMA and Wright had adjusted his flood insurance claim following Hurricane Irene, too, and they had found "no foundation damage to Mr. Clutter's foundation when he submitted his claim for Irene damage in 2011." Indeed, Clutter contended, FEMA and Wright had not paid Clutter "a penny for foundation damage after Irene."

Clutter's complaint also contended that FEMA and Wright had conceded that they owed Clutter at least $26,901.13 -- but that they had refused to pay him that amount unless he waived his right to pursue the balance of what he contended he was owed.

He sued for breach of contract (against Wright and FEMA's administrator, William B. Long) and relief under the Administrative Procedure Act (against FEMA; Long; FEMA's deputy associate administrator, Roy E. Wright; FEMA's assistant administrator, David Maurstad, and FEMA's director for Sandy claims, Matthew Behnke). He is seeking judgment for $168,175.63 or, in the alternative, an order directing FEMA to process his proof of loss for $26,901.13 and allow him a "new SCR neutral review hearing" before an "impartial third party."

Additionally, Clutter is seeking attorneys' fees and costs under the Equal Access to Justice Act.

The case is Clutter v. Long, No. 17-cv-4833 (E.D.N.Y.).

Related: N.Y. real estate management firm denied $3M in Sandy insurance coverage

Steven A. Meyerowitz, Esq., is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. Email him at

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Publication:Property and Casualty 360
Article Type:Reprint
Date:Aug 23, 2017
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