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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moore v. Allstate Insurance Company (1/20/00) sp-5232

Moore v. Allstate Insurance Company (1/20/00) sp-5232

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


DEBRA R. MOORE,               )
                              )    Supreme Court No. S-8574
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-96-782 CI
                              )
ALLSTATE INSURANCE COMPANY    )
and LARRY HEAL,               )    O P I N I O N
                              )
             Appellees.       )    [No. 5232 - January 21, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                        Eric Smith, Judge.


          Appearances:  Sanford M. Gibbs, Brown, Waller
& Gibbs, Anchorage, and P. Dennis Maloney, P. Dennis Maloney, P.C.,
Anchorage, for Appellant.  Audrey H. Faulkner, Wilkerson &
Associates, Anchorage, for Appellees.  


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          Debra Moore bought a house on the Matanuska River, and
insured it under the National Flood Insurance Program (NFIP, or
"the Program") through Allstate Insurance Company.  Fearing her
house would be condemned due to rising waters of the Matanuska
River, Moore moved her house and filed for compensation.  Moore
received forty percent of the house's market value.  Asserting that
she had been promised more, she sued Allstate and its agent in
state court on a variety of claims, including misrepresentation and
fraud.  The superior court, holding that federal courts have
exclusive jurisdiction over NFIP claims, granted summary judgment
and attorney's fees to Allstate and its agent.  We reverse because
the federal government has not retained exclusive jurisdiction over
fraud and misrepresentation claims against flood insurers.
II.  FACTS AND PROCEEDINGS
          In the late summer and fall of 1992 Debra Moore
negotiated the purchase of a house on the Matanuska River, near
Palmer.  Because of the inherent flood risks, Moore sought flood
insurance.  After one insurer apparently turned her down, she
purchased insurance from Larry Heal, an Allstate agent who was then
servicing the previous owners.  According to Moore, Heal told her
that if she suffered a loss due to flood or erosion, Allstate's
policy would cover her "for [the] full replacement value of the
house." Moore then purchased the house in November 1992.
          In June 1994 the Matanuska River began eroding the land
near Moore's house, and Moore decided to relocate her home.  She
first made a claim under her policy for relocation relief, which
the Federal Emergency Management Agency (FEMA) denied. [Fn. 1]  She
then requested that the Matanuska-Susitna Borough condemn her
house, and when it did so, she appealed the denial of her FEMA
claim.  This time her claim was successful.  On August 8, 1995,
FEMA granted Moore benefits equal to forty percent of the fair
market value of her house.
          Disappointed with this award, Moore filed suit against
Heal and Allstate in state superior court on September 27, 1996.
She sought damages on various theories: breach of contract, bad
faith, failure to refund her premium (which she considered to be an
overcharge), intentional or negligent misrepresentation, unfair
trade practices, negligence, respondeat superior, estoppel, and
exemplary damages.
          When Heal and Allstate moved for summary judgment, the
superior court dismissed Moore's claims for lack of subject matter
jurisdiction, holding that the federal district court had original
exclusive jurisdiction over her claims.  It awarded Allstate
$18,287.50 in attorney's fees and $4,345.15 in costs.
          Moore appeals the dismissal of her claims, and the
attorney's fees award. [Fn. 2]
III. DISCUSSION
     A.   Standard of Review
          The standard of review for an appeal from summary
judgment is de novo. [Fn. 3]   We will affirm a summary judgment if
there are no genuine issues of material fact and if the moving
party is entitled to judgment as a matter of law. [Fn. 4]  When
making this determination, we draw all reasonable inferences in
favor of the non-moving party. [Fn. 5]   If in reviewing a summary
judgment we must answer questions of law, we will adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy. [Fn. 6]  Moreover, we may affirm a grant of summary
judgment on grounds other than those advanced by the lower court or
parties. [Fn. 7] 
     B.   Federal Jurisdiction
          This case hinges on the scope of the National Flood
Insurance Act (NFIA, or "the Act"). [Fn. 8]  In an effort to
provide flood insurance at reasonable rates to people living in
flood-prone areas, Congress enacted the Act in 1968. [Fn. 9]  The
Act created the National Flood Insurance Program under which the
government works with private insurers to subsidize the cost of
flood insurance. [Fn. 10]  For the first decade of its existence,
the Program was operated under Part A of the Act [Fn. 11] and
"through a pool of private insurers under the supervision of and
with financial support from the Department of Housing and Urban
Development."[Fn. 12]   In 1978 Part A was phased out and Part B
of the Act [Fn. 13] was implemented, bringing about two important
changes: (1) the federal government took on a greater portion of
the financial burden of the insurance coverage, [Fn. 14] and (2)
the Federal Emergency Management Administration assumed managerial
responsibility for the payment of all flood insurance claims. [Fn.
15]  In 1983 FEMA created the misleadingly named "Write Your Own"
program (WYO), under which private insurance companies may sell a
FEMA-drafted Standard Flood Insurance Policy (SFIP). [Fn. 16]  The
Federal Emergency Management Administration and the federal
government continue to bear the primary financial burden of the
program, but under the WYO program, private insurers are allowed to
make money by facilitating the sale of policies. [Fn. 17]
          When it issued the policy to Moore, Allstate was acting
as a write-your-own insurer under the National Flood Insurance
Program, selling a standard flood insurance policy subject to
management by the Federal Emergency Management Administration under
Part B.  
          The principal issue here is whether the federal courts
have exclusive, original jurisdiction over tort claims against NFIP
WYO insurers.  The superior court held that because all of Moore's
tort claims concerning contract negotiations are claims arising out
of the contract, the federal courts have jurisdiction over all
NFIP-related claims.  Allstate agrees, but Moore argues that tort
claims do not arise out of the insurance contract, and that state
courts therefore have jurisdiction. 
          1.   WYO insurers fall under section 4072, not section
4053.

          Congress included in the National Flood Insurance Act two
provisions granting federal courts exclusive subject matter
jurisdiction in particular types of cases connected to the
insurance program. [Fn. 18] 
          Suits against the insurance companies taking part in the
original pool under Part A are addressed in 42 U.S.C. sec. 4053.  
          The superior court dismissed Moore's claims on the ground
that section 4053 grants exclusive federal jurisdiction in NFIP
cases against private insurers.  Section 4053 reads:
          The insurance companies and other insurers
          which form, associate, or otherwise join
together in the pool under this part may adjust and pay all claims
for proved and approved losses covered by flood insurance in
accordance with the provisions of this chapter and, upon the
disallowance by any such company or other insurer of any such
claim, or upon the refusal of the claimant to accept the amount
allowed upon any such claim, the claimant, within one year after
the date of mailing of notice of disallowance or partial
disallowance of the claim, may institute an action on such claim
against such company or other insurer in the United States district
court for the district in which the insured property or the major
part thereof shall have been situated, and original exclusive
jurisdiction is hereby conferred upon such court to hear and
determine such action without regard to the amount in controversy.[
[Fn. 19]] 

          But section 4053 does not apply here.  As the Third
Circuit held last year in Van Holt v. Liberty Mutual Fire Insurance
Co., [Fn. 20] "42 U.S.C. sec. 4053 only pertains to disputes over
policies issued under a Part A program."[Fn. 21]  When Part A was
phased out, the use of a pool of private insurers also ended and so
did the applicability of section 4053.  Allstate did not act here
as a Part A pool insurer, but as a private WYO insurer under Part
B.  It thus acted in a capacity Congress never addressed when it
wrote the Act. [Fn. 22]  Any basis for exclusive federal
jurisdiction over NFIP cases against private WYO insurers must
therefore be found elsewhere.
          Section 4072 contains the other jurisdictional grants. 
That section reads:
          In the event the program is carried out as
provided in section 4071 of this title [allowing for implementation
of Plan B], the Director shall be authorized to adjust and make
payment of any claims for proved and approved losses covered by
flood insurance, and upon the disallowance by the Director of any
such claim, or upon the refusal of the claimant to accept the
amount allowed upon any such claim, the claimant, within one year
after the date of mailing of notice of disallowance or partial
disallowance by the Director, may institute an action against the
Director on such claim in the United States district court for the
district in which the insured property or the major part thereof
shall have been situated, and original exclusive jurisdiction is
hereby conferred upon such court to hear and determine such action
without regard to the amount in controversy.[ [Fn. 23]]

Although section 4072 only addresses suits against the federal
government, the federal courts have interpreted it more broadly. 
In Van Holt, the Third Circuit held that "construing 42 U.S.C. sec.
4072 narrowly to confer jurisdiction only to cases formally against
FEMA would cause anomalous results."[Fn. 24]  Another court noted
that "[al]though neither [sec. 4053 nor sec. 4072] expressly
provides for
actions against WYO companies, they demonstrate unequivocal
congressional intent that actions by disappointed claimants under
the NFIP be restricted to the federal courts."[Fn. 25]  The Van
Holt court and others have accordingly held that section 4072
"vests district courts with exclusive jurisdiction over suits by
claimants against WYO companies based on partial or total
disallowance of claims for insurance arising out of the [NFIA]."
[Fn. 26] 
          The federal courts generally seem to agree that section
4072 confers original, exclusive jurisdiction on federal district
courts to hear claims for losses covered by a WYO insurance
contract. [Fn. 27]
          2.   The federal government has not preempted state
involvement in the field of flood insurance.

          Allstate argues that section 4072 is not the only source
of federal jurisdiction over WYO insurers.  Allstate claims that
federal preemption of state law here "is mandated because the
federal government intended to occupy the entire field of flood
insurance." That result would theoretically bar Moore from making
any of her claims in state court.  Allstate bases its argument on
West v. Harris, [Fn. 28] where the Fifth Circuit stated:
          Since the flood insurance program is a child
of Congress, conceived to achieve policies which are national in
scope, and since the federal government participates extensively in
the program both in a supervisory capacity and financially, it is
clear that the interest in uniformity of decision present in this
case mandates the application of federal law.[ [Fn. 29]]
But West concerned coverage, and it discusses preemption entirely
in that context. [Fn. 30]  Its holding states the point well: "In
sum, federal law controls disputes over the coverage of insurance
policies issued pursuant to the National Flood Insurance Act
. . . ."[Fn. 31]
          There are indications that the federal government did not
preempt all state involvement in flood insurance; as Moore notes,
the WYO regulations require state licensing [Fn. 32] and allow for
state auditing and regulatory control. [Fn. 33]  And in Offices of
Vincent Vitale, P.C. v. Tabbytite, [Fn. 34] we held that "[w]here
a federal statute is silent on the question of jurisdiction, state
and federal courts have concurrent jurisdiction."[Fn. 35]  In
accordance with that opinion, we hold that the federal government
has not preempted all state involvement in the field of flood
insurance.

          We conclude that section 4072 provides the only possible
basis for finding exclusive federal jurisdiction here.  In the
words of section 4072, the Federal Emergency Management
Administration Director makes payment of "claims for proved and
approved losses covered by flood insurance,"and when the director
disallows a claim, federal courts have jurisdiction to hear an
action "on such claim."[Fn. 36]  As noted above, section 4072
applies with equal force to private, WYO insurers.
          3.   Congress asserted jurisdiction in section 4072 to
provide for the uniform interpretation of policies, and to protect
federal funds.

          As we have seen, the purpose of federal jurisdiction in
this area was at least in part to promote the uniform
interpretation of the standard flood insurance policy. [Fn. 37] 
But there is apparently another rationale underlying the grant of
jurisdiction to federal courts, one that is applicable even when
the explicit interpretation of the contract is not at issue.
           In Van Holt, the plaintiffs sued their WYO insurer,
Liberty Mutual, for bad faith and consumer fraud in connection with
an NFIP policy. [Fn. 38]  They based their complaint on Liberty
Mutual's "failure to pay their claims and the company's allegation
that the claims were fraudulent."[Fn. 39]  On appeal from the
district court, the Third Circuit raised the issue of subject
matter jurisdiction sua sponte. [Fn. 40]  Ultimately concluding
that section 4072 applied, thus granting original, exclusive
jurisdiction to the federal district court, the Third Circuit based
its decision on the federal government's obligation to compensate
Liberty Mutual in case of loss:
          Although the Van Holts' suit does not
explicitly allege that Liberty Mutual violated the insurance policy
contract, their lawsuit should be deemed an action subject to the
Act.  The statutory and regulatory scheme reveals that Congress
would have intended to give the district court original exclusive
jurisdiction had Congress considered the issue.  Most importantly,
federal funds are at stake in this suit.  Congress would want
federal courts to adjudicate disputes over federal flood insurance
policies for which the federal government would be responsible for
reimbursing the WYO company if the claimant prevails.  Although the
Van Holts' claims sound in tort, their causes of action alleging
impropriety in the investigation and adjustment of their insurance
claim are intimately related to the disallowance of their insurance
claim. . . .  We now determine that Congress, had it considered the
specific question, would have intended to confer original exclusive
jurisdiction on the district court over claims sounding in tort
arising out of the investigation or adjustment of insurance
policies arising out of the administration and sale of insurance
under the NFIA.  We reach this conclusion because Liberty Mutual is
a fiscal agent of the United States, FEMA would have borne the
costs of the plaintiffs' insurance claim, and FEMA is obliged to
reimburse Liberty Mutual for defense costs.[ [Fn. 41]]
The Third Circuit thus reasoned that when federal funds are at
stake, the federal courts have exclusive jurisdiction. 
          4.   Federal funds are at stake when the federal
government has agreed to indemnify the WYO insurers per the CFR.

          The Federal Emergency Management Administration's
regulations limit its liability to WYO insurers and the insured.
[Fn. 42]  The regulations specify that WYO companies are not agents
of the federal government. [Fn. 43]  FEMA is, however, obligated to
cover certain specific costs of the insurance arrangement; most
notably, FEMA bears the burden of paying out claims after depletion
of the minimal WYO insurer set-aside funds for payment of claims.
[Fn. 44]
          The Federal Emergency Management Administration is
further generally obligated to cover "payments as a result of
litigation which arises under the scope of"the WYO-FEMA
arrangement. [Fn. 45]  The regulations limit and clarify this
obligation:
          (1) FEMA is not required to reimburse WYO insurers for
"damages caused by inadvertent delay, error, or omission made in
connection with any transaction"under the arrangement; [Fn. 46]
and  
          (2) FEMA has a process for denying a WYO insurer's claim
if it "is grounded in actions by the Company that are outside the
scope of this Arrangement, the National Flood Insurance Act, and 44
CFR chapter 1, subchapter B, and/or involve issues of insurer/agent
negligence."[Fn. 47]
          These limitations suggest that the federal government
would not indemnify a WYO insurer for a loss caused by fraud or
misrepresentation.  It appears to us that fraud and
misrepresentation are "outside the scope of this Arrangement."
Moreover, considering that the regulations do not cover the
negligence of insurers or their agents, it seems highly unlikely
that willful acts such as fraud or intentional misrepresentation
would be covered.  Finally, we note that the "Arrangement"
specifically excludes errors and omissions from its scope. [Fn. 48]
          In Spence v. Omaha Indemnity Insurance Co., [Fn. 49] the
Fifth Circuit held that a suit for tortious misrepresentation of
the contents of an SFIP was not a suit arising under the SFIP. [Fn.
50]  The insureds there sued their WYO insurer in federal court for
"fraud arising out of representations"by its agents. [Fn. 51]  The
insureds won, and the insurer, Omaha, appealed on the ground that
the federal statute of limitations barred the suit. [Fn. 52]  In
addressing the limitations issue, the Fifth Circuit applied Texas
law, citing the federal-funds rationale to support its result:
          While the national policies underlying the
NFIP and extensive federal role therein impel our conclusion that
federal common law governs claims under flood insurance policies,
the same does not apply in actions for tortious misrepresentation
against WYO insurers. . . . [W]hile WYO insurers may draw on FEMA
letters of credit to pay SFIP claims, the WYO-FEMA agreement does
not permit such draws to cover a WYO company's liability for fraud. 
The more attenuated federal interests in such claims lead to our
conclusion that the limitations period governing them derives from
state rather than federal law.  Article VIII(Q) of the SFIP
concerns only suits "to recover money under this policy."
Likewise, 42 U.S.C. sec. 4072 addresses itself solely to actions
arising from partial or complete disallowance of flood insurance
policy claims.  Neither provision sets a limitations period
governing tort actions based on misrepresentations concerning the
SFIP, as opposed to contract claims under the SFIP itself.  Absent
express preemptions of state law fraud actions against WYO insurers
or conflict with any federal provision, we conclude that the
Spences timely filed their action for misrepresentation under the
four-year Texas limitations period.[ [Fn. 53]]

A federal district court held likewise in Cohen v. State Farm Fire
& Casualty, [Fn. 54] concluding that plaintiffs could bring a state
law claim for breach of the implied covenant of good faith and fair
dealing. [Fn. 55]  
          5.   Because misrepresentation and fraud claims are not
claims "under the policy,"they are not subject to the SFIP forum
selection clause.

          Allstate argues that the SFIP forum selection clause
required Moore to file her suit in federal district court.  The
standard SFIP forum selection clause reads as follows:
          You may not sue us to recover money under this
          policy unless you have complied with all the
requirements of the policy.  If you do sue . . . you must file the
suit in the United States District Court for the district in which
the insured property was located at the time of the loss.[ [Fn. 56]]

In Austin v. Fulton Insurance Co., [Fn. 57] we held that an action
for breach of warranty and negligence on the part of an insurer was
not an action on the underlying policy:
          A different situation exists as to appellant's
claims based upon an alleged breach of warranty to furnish
insurance covering loss by earthquake, and upon the alleged
negligent failure of appellees to obtain such insurance coverage. 
Here appellant does not rely upon any provision of the policies,
but rather upon what ought to have been included in the policies
but was not.  Appellant's reliance is placed on matters outside the
policies of insurance, and therefore his action against appellees
is not one "on this policy", within the meaning of the limitation
contained in the policies . . . .[ [Fn. 58]]

Moore's claims closely parallel those asserted in Austin. 
Following Austin, we conclude that the forum selection clause does
not apply to Moore's tort claims.
          6.   The federal government therefore does not have
original, exclusive jurisdiction over fraud and misrepresentation
claims against WYO insurers.

          If we eliminate preemption and the forum selection clause
as concerns, we are left with the scope of section 4072.  Taking
Spence as our guide and given that the federal government is not
obligated to reimburse WYO insurers for their losses in court on
fraud claims, we hold that the rationale articulated in Van Holt
does not apply to Moore's fraud and misrepresentation claims.  The
applicability of section 4072 to WYO insurers is limited to claims
attempting to interpret or enforce SFIP terms, and section 4072
does not apply to claims in tort against WYO insurers for fraud or
misrepresentation.  This conclusion is supported by the few cases
in which state courts have exercised such jurisdiction. [Fn. 59]
          Accordingly, we reverse the superior court's ruling on
this issue.  We hold that while federal courts have exclusive
jurisdiction over direct claims under the policy, the state has
jurisdiction over those of Moore's claims that are based on the
relationship between Moore and Heal and what Heal reportedly
promised or agreed to obtain.  
     C.   Does a Statute of Limitations Bar Moore's Claim?
          Allstate alternatively argues that most of Moore's
noncontract claims are barred by Alaska's two-year tort statute of
limitations. [Fn. 60]  In response, Moore first argues that
Alaska's statute of limitations for suits on economic damages in a
fiduciary relationship -- six years -- applies. [Fn. 61]  Should we
find the two-year statute applicable, Moore alternatively argues
that the limitations period did not begin to run until she
"discovered that she was not being compensated for her loss"-- the
date she received the Federal Emergency Management Administration
award, August 8, 1995.  That would put the commencement of her suit
well within the two-year statutory period.
          It is unnecessary to choose between the two statutes
potentially at issue here, because the discovery rule makes Moore's
claims timely even under the more restrictive two-year statute.
          We conclude that the statute began to run when Moore
"discovered, or reasonably should have discovered,"the torts
allegedly committed against her. [Fn. 62]  Under Gudenau & Co. v.
Sweeney Insurance, Inc., [Fn. 63] "[t]he insured is entitled to
rely on his broker's professional skill and representations when
interpreting the scope of his insurance coverage."[Fn. 64]  This
would make August 8, 1995, the date of discovery, assuming Moore
were a lay person. 
          But Allstate alleges that Moore is not a lay person,
because she "has been a legal secretary in the insurance defense
industry for many years, and was able to look up her SFIP in the
Federal Register." This assertion is unsupported by citation to
evidence establishing that Moore had sufficient expertise that she
must be deemed to have discovered the tort at some earlier date. 
Further, the record contains evidence of substantial differences
between flood insurance and other insurance, and we will not charge
all legal secretaries with knowledge of the subtleties of the
Federal Emergency Management Administration in adjustment of
National Flood Insurance Program claims, or of the contents of the
Federal Register.  There is no evidence Moore understood the
significance of the forty-percent rule.  We therefore consider her
date of discovery to be August 8, 1995.
          Because Moore's September 27, 1996, suit was well within
both the two-year and the six-year statutes of limitations, her
claims are timely.
     D.   Other Issues

          Our reversal in favor of Moore on the merits moots her
claim that it was error to award attorney's fees of $18,287.50 to
the defendants.  Reversal requires that the attorney's fees award
be vacated.  
          Allstate alleges that Moore's appeal should be dismissed
because Moore has not posted the cost bond required by Alaska Rule
of Appellate Procedure 204(c). [Fn. 65]  According to court
personnel, however, Moore did post a cost bond on January 22, 1998. 
Allstate's argument on this issue appears to be without merit.
IV.  CONCLUSION
          We REVERSE the summary judgment and REMAND for further
proceedings consistent with this opinion.  We VACATE Allstate's
attorney's fees award.


                            FOOTNOTES


Footnote 1:

     The Upton-Jones Amendment to the National Flood Insurance Act
was passed in 1988.  See Pub. L. No. 100-242, sec. 544, 101 Stat.
1815
(1988).  It provided for demolition or relocation of a structure
before its imminent collapse.  See id.  Following the amendment, if
a house was demolished, the owner would receive 110% of its value
(presumably including compensation for the cost of demolition), and
if it was relocated, the owner would receive 40%. See id.  The
Upton-Jones Amendment, formerly at 42 U.S.C. sec. 4013(c), was
repealed in 1994.  See Pub. L. No. 103-325, sec. 552(a), 108 Stat.
2160 (1994).


Footnote 2:

     Allstate argues that Moore is only appealing dismissal of her
misrepresentation and negligence claims.  But the first page of
Moore's opening brief makes it clear that she is appealing the
dismissal of "misrepresentation and related state claims." Her
brief also later refers explicitly to "breach of fiduciary duty."
We treat her appeal as encompassing all of her original claims, as
originally pled.


Footnote 3:

     See Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska
1998).


Footnote 4:

     See Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska
1998). 


Footnote 5:

     See id.


Footnote 6:

     See Ganz, 963 P.2d at 1017.


Footnote 7:

     See Ward v. Lutheran Hosps. & Homes Soc'y of Am., Inc., 963
P.2d 1031, 1034 (Alaska 1998).


Footnote 8:

     See 42 U.S.C. sec.sec. 4001-4129 (1994).


Footnote 9:

     See Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 165
n.2 (3d Cir. 1998); Berger v. Pierce, 933 F.2d 393, 394-95 (6th
Cir. 1991).


Footnote 10:

     See Van Holt, 163 F.3d at 165 n.2.


Footnote 11:

     See 42 U.S.C. sec.sec. 4051-56 (1994).


Footnote 12:

     Spence v. Omaha Indem. Ins. Co., 996 F.2d 793, 794 n.1 (5th
Cir. 1993).


Footnote 13:

     See 42 U.S.C. sec.sec. 4071-72 (1994).


Footnote 14:

     See Van Holt, 163 F.3d at 165.


Footnote 15:

     See id.; Berger, 933 F.2d at 395.


Footnote 16:

     See Van Holt, 163 F.3d at 165-66.  The SFIP may not be altered
by WYO insurers without permission from the Federal Insurance
Administrator.  See id.


Footnote 17:

     See id. at 165.


Footnote 18:

     See 42 U.S.C. sec.sec. 4053, 4072 (1994); see also Van Holt,
163
F.3d at 166.


Footnote 19:

     42 U.S.C. sec. 4053 (emphasis added).  The words "original
exclusive"were added in 1983.  See Pub. L. No. 98-181, sec.
451(d)(3), 97 Stat. 1153 (1983).


Footnote 20:

     163 F.3d 161 (3d Cir. 1998). 


Footnote 21:

     Id. at 166.  See also Spence, 996 F.2d at 795 n.12.


Footnote 22:

     See Webb v. Aetna, 1997 WL 433500 at *3 n.4 (E.D. La. 1997)
("The WYO program is a creation not of Congress but of FEMA. 
Therefore, it is not surprising that the statute does not refer
expressly to actions against WYO companies.") (citations omitted). 


Footnote 23:

     42 U.S.C. sec. 4072 (emphasis added).  The words "original
exclusive"were added in 1983.  See Pub. L. No. 98-181, sec.
451(d)(5), 97 Stat. 1153 (1983).


Footnote 24:

     163 F.3d at 167.


Footnote 25:

     See Webb, 1997 WL 433500 at *3.


Footnote 26:

     Id.  See also Spence, 996 F.2d at 795.  But see Froehlich v.
Catawba Ins. Co., 10 F. Supp. 2d 597, 598 n.2 (W.D. Va. 1998)
(continuing to apply section 4053 to cover Plan B WYO insurers).


Footnote 27:

     See, e.g., Van Holt, 163 F.3d at 167; Cohen v. State Farm Fire
& Cas., 68 F. Supp. 2d 1151, 1159-60 (C.D. Cal. 1999); Friedman v.
South Carolina Ins. Co., 855 F. Supp. 348, 350 (M.D. Fla. 1994). 


Footnote 28:

     573 F.2d 873 (5th Cir. 1978). 


Footnote 29:

     Id. at 881.


Footnote 30:

     See id. at 875-79, 881.


Footnote 31:

     Id. at 881.


Footnote 32:

     See 44 C.F.R. sec. 59.1.


Footnote 33:

     See 44 C.F.R. Pt. 62, App. B ("WYO Companies are subject to
audit, examination, and regulatory controls of the various
states.").


Footnote 34:

     942 P.2d 1141 (Alaska 1997).  


Footnote 35:

     Id. at 1147.


Footnote 36:

     The words "original exclusive"were added in 1983.  See supra
note 24.


Footnote 37:

     See Nelson v. Becton, 929 F.2d 1287, 1291 (8th Cir. 1991)
("The [SFIPs] are by regulation uniform throughout the country. 
Their coverage should not vary from state to state depending upon
the vagaries of state law."(citations omitted)); West, 573 F.2d at
881.


Footnote 38:

     See Van Holt, 163 F.3d at 164.


Footnote 39:

     Id.


Footnote 40:

     See id. at 166.


Footnote 41:

     Id. at 167 (emphasis added).  


Footnote 42:

     See 44 C.F.R. Pt. 62, App. A.


Footnote 43:

     See 44 C.F.R. sec. 62.23(g); 44 C.F.R. Pt. 62, App. A, art.
XVI
(as amended, 1998). 


Footnote 44:

     See 44 C.F.R. Pt. 62, App. A, art. III(D)(1).


Footnote 45:

     Id. at art. III(D)(2).   


Footnote 46:

     Id. at art. IX.


Footnote 47:

     Id. at art. III(D)(4).


Footnote 48:

     See id. at art. IX.


Footnote 49:

     996 F.2d 793 (5th Cir. 1993).


Footnote 50:

     See id. at 796-97. 


Footnote 51:

     Id. at 794.


Footnote 52:

     See id. at 794-95.


Footnote 53:

     Id. at 796-97 (footnotes omitted).


Footnote 54:

     68 F. Supp. 2d 1151 (C.D. Cal. 1999).


Footnote 55:

     See id. at 1159-60.


Footnote 56:

     44 C.F.R. Pt. 61, App. A(1), art. VIII(R).


Footnote 57:

     444 P.2d 536 (Alaska 1968).  


Footnote 58:

     Id. at 538.


Footnote 59:

     See Phillips v. State Farm Fire & Cas. Co., 1993 WL 386291, at
*2 (Ohio App. 1993) (exercising state jurisdiction over
misrepresentation and bad faith claims, with one paragraph
discussion of jurisdictional issue); Kitching v. Zamora, 695 S.W.2d
553, 554 (Tex. 1985) (exercising state jurisdiction over agent's
negligence in allowing NFIP policy to lapse, without discussing
jurisdictional issue); DeWitt v. Prudential Ins. Co., 717 S.W.2d
414, 416-17 (Tex. App. 1986) (exercising state jurisdiction over
state Deceptive Trade Practices claim relating to NFIP policy,
without discussing jurisdictional issue).


Footnote 60:

     See AS 09.10.070(a) ("A person may not bring an action . . .
for . . . injury to the rights of another not arising in contract
and not specifically provided otherwise . . . unless the action is
commenced within two years. . . .").

          Allstate also implies that the one-year contractual
statute of limitations, see 42 U.S.C. sec. 4072, might apply here.
This contention has no merit, because Moore's lawsuit is not an
action under the policy.


Footnote 61:

     See AS 09.10.050; Breck v. Moore, 910 P.2d 599, 603 (Alaska
1996) ("The six-year statute of limitations generally applies to
professional malpractice actions claiming economic loss.").


Footnote 62:

     Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 767 (Alaska
1987).


Footnote 63:

     736 P.2d 763 (Alaska 1987). 


Footnote 64:

     Id. at 767.


Footnote 65:

     Alaska Appellate Rule 204(c) reads in pertinent part: "Unless
a party is exempted by law, a bond for costs on appeal shall be
filed with the notice of appeal in a civil case.  The bond shall be
in the sum of seven hundred fifty dollars ($750.00) . . . ."