Plaintiff also alleges that Colonial separately made numerous oral agreements to pay D & S for all of the services provided, and this, D & S submits, “represented that any insurance claim submitted to The Foundry's insurer, or available disaster relief fund, would be accepted and full payment would be made to D & S.”ĭ & S calculates that it provided over $500,000 in negotiated services to the Foundry by the time it completed its work in January of 2013. D & S alleges that Wright, through its agent Colonial, agreed to pay D & S for all of the services and materials D & S provided. These newly negotiated services included the decontamination and repair of large parts of the Foundry's structures, such as the parking garage, mechanical rooms, elevator shafts, and other common areas. All involved agreed that D & S would not provide any additional services until an adjuster and a Wright representative approved the work.Īt a second meeting two days later, “representatives of efendants” instructed D & S to perform additional remediation and repair services that were substantially broader in scope than the initial emergency services.
Also present at this meeting was a representative of Colonial, an insurance adjuster, which D & S alleges was acting as an agent of Wright, the company that sold flood insurance to the Foundry. But after a week or so, D & S representatives met with both Foundry representatives and individual unit owners to discuss additional services. In the beginning, D & S merely pumped and removed floodwater from the building, set up drying equipment, and provided temporary power and lighting for the Foundry's common areas. Pursuant to this general agreement, D & S provided flood remediation services from October 2012 to January 2013. Additionally, the agreement included a “Responsibility of Payment” provision, in which the Foundry agreed to remit to D & S any payments made by an insurer. The contract stated that D & S would provide services and materials to the Foundry and, in return, the Foundry would compensate D & S for its work. D & S characterized this agreement as an “open services” contract governing their relationship. D & S and the Foundry entered into an agreement that failed to specify the scope of the services or materials that D & S would provide. D & S, a company that performs remediation services, was working at a nearby building when “a representative of the efendants” approached D & S to request emergency floodwater-pumping services at the Foundry. For the reasons that follow, we affirm.įollowing Hurricane Sandy, the Foundry at Hunters Point Condominiums (the Foundry) needed substantial work to repair damage to its structure and interior. § 4001, et seq., the district court granted judgment in favor of defendants pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c). Finding all of plaintiff's claims preempted by the National Flood Insurance Act of 1968 (NFIA), 42 U.S.C. (D & S), appeals the district court's dismissal of its claims against insurance adjuster Colonial Claims Corporation (Colonial) and flood insurance provider Wright National Flood Insurance Company (Wright). In this dispute involving flood insurance, plaintiff D & S Remodelers, Inc. 17-5554 Decided: February 14, 2018īEFORE: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges. WRIGHT NATIONAL FLOOD INSURANCE SERVICES, LLC, formerly known as Fidelity National Insurance Services, LLC COLONIAL CLAIMS CORPORATION, Defendants-Appellees.
United States Court of Appeals, Sixth Circuit.ĭ & S REMODELERS, INC., Plaintiff-Appellant, v.
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