## Facts

- Individual policyholders held flood insurance policies issued under the National Flood Insurance Act of 1968 (NFIP).
- Plaintiffs suffered flood losses and alleged the insurers failed to pay the full amounts owed under the policies.
- Beyond contractual policy benefits, plaintiffs sought Louisiana statutory penalties and attorney’s fees under La. Rev. Stat. § 22:658 for allegedly arbitrary or capricious nonpayment or delay after proof of loss.
- The actions were consolidated and involved an NFIP-participating private insurer and an NFIP insurer association.

## Issues

1. Whether a request for penalties and attorney’s fees in the complaint could be removed via a motion to strike under Federal Rule of Civil Procedure 12(f), or must be tested under Rule 12(b)(6).
2. Whether La. Rev. Stat. § 22:658 applies to NFIP flood insurance claims, or whether the federal flood insurance scheme bars state-law penalty and fee remedies.

## Decision

- The court held Rule 12(f) was not the proper device to attack a plaintiff’s demand for penalties and attorney’s fees because the demand was not redundant, immaterial, impertinent, scandalous matter, or an insufficient defense.
- The court treated the motion to strike as a Rule 12(b)(6) motion and reached the merits.
- The court dismissed the claims seeking penalties and attorney’s fees under La. Rev. Stat. § 22:658, holding the statute did not apply to NFIP flood insurance claims.

## Legal Principles

- A request for penalties and attorney’s fees is not properly challenged by Rule 12(f) when it constitutes a substantive claim for relief; the appropriate vehicle is Rule 12(b)(6).
- Flood insurance policies issued under the NFIP arise from a federal statutory and regulatory program; the parties’ rights and remedies are governed by federal law and the federally prescribed policy terms.
- State statutes that add extra-contractual penalties or attorney’s fees for claim-handling conduct, such as La. Rev. Stat. § 22:658, are unavailable in NFIP litigation because they would impose nonuniform, state-specific remedies inconsistent with the federal program.

## Conclusion

The court refused to strike the penalty and fee demand under Rule 12(f) but, treating the motion as one under Rule 12(b)(6), held that NFIP insureds may not recover Louisiana statutory penalties or attorney’s fees and are limited to remedies provided by federal law and the NFIP policy.


Drewett v. Aetna Cas. & Sur. Co., 405 F. Supp. 877 (W.D. La. 1975)