(CN) – “Pigs can fly and hell has frozen over,” a federal judge remarked as he let a woman pursue claims that her insurer overpaid her for Hurricane Sandy damage.
U.S. District Judge Joseph Irenas noted last week that the protest from Marjorie Brooks “is almost certainly the first lawsuit of its kind.”
Brooks made a flood loss claim to Fidelity National Indemnity Insurance and hired a public adjuster, Dennis Molette of All Property Adjustment Services, to handle the details of the damage to her New Jersey home sustained on Oct. 29, 2012. Fidelity, in turn, hired David Brush and Ron Eubanks of the Dunedin, Fla.-based Colonial Claims to adjust Brooks’ claim.
Brooks then hired Leonard Foglio Jr. of Foglio’s Handyman and Carpentry Services to handle the repairs. She claims that Foglio ultimately walked off the job, however, leaving an enormous amount of debris both inside and outside of her home.
Plus, although the adjusters valued the damage to Brooks’ home at $80,000, she says it totaled only about $5,000.
Brooks sued Foglio’s, Molette and Colonial for breach of contract, fraud and negligence in the Superior Court of New Jersey, Cape May Division, on March 13, alleging “overpayment by fraud.” Fidelity is not a party to the action.
After Colonial removed the action to federal court – without Molette or Foglio’s consent – in April, Molette notified the court that the matter should be remanded. Colonial later moved to dismiss, and Brooks moved to remand and for attorneys’ fees and costs.
U.S. District Judge Joseph Irenas refused to dismiss and remanded the case to state court July 2.
The novelty of Brooks’ claim led the Camden judge to take “judicial notice of the following facts: pigs can fly and hell has frozen over.”
He then tossed aside Colonial’s claims that Section 4072 of federal law vested the U.S. District Court with original, exclusive jurisdiction, and that federal law pre-empts state-law claims brought against an adjuster.
“Although the court is aware of the possibility that Congress would have included overpayment within § 4072 if it ever thought a claimant would sue for receiving too much money, the fact remains that the language of § 4072 is clear, and does not provide jurisdiction over claims for overpayment,” Irenas wrote.
Although the National Flood Insurance Program of the Federal Emergency Management Agency governs Brooks’ standard flood insurance policy, the federal court lacks jurisdiction, the court found..
“Even if § 4072 applied to the instant case, the procedure for removal was improper,” Irenas wrote. “It is undisputed that the Molette and Foglio defendants did not consent to removal in the instant case, which violates the unanimity rule described in 28 U.S.C. § 1446(b)(2)(A). In addition, plaintiff objected to his procedural defect within thirty days. Thus, this court must remand the case to state court.”
The court also refused, however, to award attorneys’ fees and costs based on Brooks’ claim that Colonial unreasonably removed the case.
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