his estoppel claim under the four-part test set forth in Portmann.
The Seventh Circuit has suggested that a party seeking to assert estoppel against the government may also have to meet a fifth requirement, a showing of affirmative misconduct. Portmann, 674 F.2d at 1167; Azar, 777 F.2d at 1270-71. While the court in Azar held that a showing of affirmative misconduct was not necessary to prove estoppel, it emphasized that its holding was limited to "the unique situation in which a party seeks to estop the Postal Service from relying on the Express Mail insurance limits." Id. at 1271. In the Ninth Circuit, a party seeking to raise estoppel against the government must establish affirmative misconduct going beyond mere negligence. Wagner v. Director, Federal Emergency Mgmt. Agency, 847 F.2d 515, 519 (9th Cir. 1988). In Wagner, the claimant sought to estop FEMA from relying on the proof of loss requirement. The court concluded that "a mere failure to inform or assist does not justify application of equitable estoppel." Id., quoting Lavin v. Marsh, 644 F.2d 1378, 1384 (9th Cir. 1981). As in Wagner, Bullard bases his estoppel claim on FEMA's failure to remind him of the terms of his policy. It cannot be said that a failure to inform falls below "some minimum standard of decency, honor, and reliability" as would justify a finding of estoppel against the Government. Community Health Services, 467 U.S. at 61, 104 S. Ct. at 2224. See also Phelps, 785 F.2d at 18-19 (a FEMA agent's advice that the claimant need not file a written report was insufficient to estop the government). Were this Court to accept the Ninth Circuit's test, Bullard would not be able to satisfy the requisite showing of affirmative misconduct.
In reaching his decision, the Magistrate relied primarily on the Seventh Circuit's decision in Meister Brothers, Inc. v. Macy, 674 F.2d 1174 (7th Cir. 1982). In Meister Brothers, the claimant entered into a series of prolonged negotiations with the FEMA adjuster over the value of his claim. The claimant failed to execute a proof of loss until three months after the deadline for filing but, upon receipt of the proof of loss, FEMA paid a portion of the claim. Negotiations continued unsuccessfully on the value of the unpaid portion of the claim, and after the claimant filed suit, FEMA invoked the 60-day proof of loss requirement as a defense to any further liability. In finding that the government was estopped, the court relied chiefly on the fact that FEMA had already paid a portion of the claim prior to invoking the proof of loss requirement. The court noted that FEMA had the necessary information provided in a proof of loss and concluded that "the actions of paying part of the claim under a policy which the insurer has treated as being fully applicable to the entire claim, over many months of time, does not permit a withdrawal thereafter from the position clearly and unambiguously taken." Meister Bros., 674 F.2d at 1177. In Meister Brothers, the court emphasized that its decision was limited to the unique facts of the case and was not intended to provide an appropriate standard for resolution of future cases. Id.
The Court concludes that Meister Brothers is inapplicable to the present case.
Unlike the situation in Meister Brothers, FEMA has not paid any portion of Bullard's claim, nor did it discuss the claim with Bullard after the deadline had passed for the sworn proof of loss. In fact, FEMA stated in its letter of February 6 that the reason the file was closed was because of Bullard's failure to provide a proof of loss. In addition, despite Bullard's contention that FEMA has received the necessary information for processing his claim, he has failed to provide FEMA with the information which would have been provided by a sworn proof of loss. If the necessary information from the proof of loss had actually been provided as it was in Meister Brothers, this dispute may have been averted.
The information provided by the Notice of Loss was insufficient for at least two reasons: (1) The list submitted by Bullard contained only one total dollar amount and failed to specify values for any of the items; and (2) Bullard failed to provide a sworn statement. The terms of the policy specifically require that a proof of loss include the actual cash value of each damaged item.
Further, even had the defendants received the information required in the proof of loss, this would not obviate the need for a sworn statement as required by Article VIII of the SFIP. Plaintiff failed to swear under penalty of perjury concerning the truthfulness of the information provided. This requirement is important because it ensures that the plaintiff has carefully considered the information submitted to the government. See Strick, 607 F. Supp. at 447. Thus, unlike Meister Brothers, in the present case FEMA did not pay any portion of the claim, it did not discuss the claim after the deadline had passed for the proof of loss, and it did not receive the information which would have been provided in a proof of loss.
Plaintiff failed to submit a sworn proof of loss within the required 60-day time period as is required in order for him to recover. Furthermore, plaintiff's estoppel argument against the government fails because he was not ignorant of the proof of loss requirements set forth in his policy. Because there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law, summary judgment is granted in favor of defendants and against plaintiff.
DATED: April 4, 1989