JAMES C. HILL, Circuit Judge:
In this case we are concerned with an action to recover on a policy of flood insurance issued pursuant to the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4127. Plaintiff Mason Drug Company appeals from a summary judgment and a final dismissal on the merits, with prejudice, in favor of defendant-appellee National Flood Insurers Association (NFIA).
Thirty minutes to an hour later, the agent advised Sibert what the premium would be, brought an application to Sibert and had him sign it, and collected the first premium payment. The application stated, under the heading "Important Notices," that the policy would "not cover loss resulting from a flood or mudslide occurrence already in progress on the date of this application." The application further stated that the policy would provide coverage for a one year period from April 10, 1975, to April 10, 1976. At the bottom of the form, the application stated, "Agent Certifies that following matters have been discussed with insured: (i) that loss already in progress on date of application is not covered." Sibert was assured by his agent that the policy was effective as of 12:01 on the morning of April 10, there being no waiting period for the policy to go into effect.
By midday on April 10, flooding in down-town Brewton was recognized as a significant possibility. At approximately 2:00 p. m., Sibert began caulking in the store and moving the merchandise to more protected areas. At about 4:00 p. m., Sibert was advised that there would be a flood. By late afternoon, Sibert saw that water had reached within twenty-five yards of the premises and continued to approach the store. Water entered the store at approximately 9:00 p. m. on April 10, and remained there until about 2:00 o'clock of the following afternoon.
NFIA refused to pay for the loss suffered by Mason Drug because the policy expressly excluded loss resulting from a flood which entered the insured's premises on the date of the application for insurance. This action followed, and Mason Drug appeals from the District Court's disposition of the case via summary judgment in the appellee's favor, claiming that there are factual issues as to whether there was a loss in progress at the time the policy was applied for and whether the requirement concerning coverage of a loss in progress on the date of the application was waived.
Where, as here, the language of a contract pertinent to a dispute is unambiguous, the determination of the legal operation of that language is a function for the court and not the jury. West v. Harris, 573 F.2d 873, 877 (5th Cir. 1978), cert. denied, ___ U.S. ___, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); Nat Harrison Associates, Inc. v. Gulf States Utilities Co., 491 F.2d 578, 584 (5th Cir. 1974); Gore v. American Motorists Ins. Co., 441 F.2d 10, 11-12 (5th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 187 (1971). Since this case is before us under the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4127, our conclusion regarding the legal operation of the exclusionary language involved here is controlled by the application of federal law. West v. Harris, 573 F.2d at 881.
Two recent decisions in this circuit have recognized that the "loss-in-progress" principle, by virtue of its recognition in standard insurance law, is applicable to policies issued under the national flood insurance program. Summers v. Harris, 573 F.2d 869 (5th Cir. 1978); Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976). The insurer in this case took extra precaution and included the "loss-in-progress"
Mason Drug contends that the policy's exclusion of loss-in-progress was waived by the agent's representation to Sibert that a loss occurring on April 10, 1975, would be covered. Under the law in this circuit, the doctrine of waiver cannot be applied to provide coverage where coverage does not exist under, or is excluded by, the policy contract. Kaminer v. Franklin Life Ins. Co., 472 F.2d 1073, 1076-77 (5th Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 95, 38 L.Ed.2d 77 (1973); Reisman v. New Hampshire Fire Ins. Co., 312 F.2d 17, 20 (5th Cir. 1963); Reliance Ins. Co. v. The Escapade, 280 F.2d 482, 487 (5th Cir. 1960); C. E. Carnes & Co., Inc., v. Employer's Liability Assurance Corp., 101 F.2d 739, 742 (5th Cir. 1939). The appellant's waiver argument is therefore inapposite, since application of the doctrine of waiver in this case would result in coverage of loss expressly excluded by the policy.
The exclusionary provision being clearly set forth in the policy and the doctrine of waiver being inapplicable on these facts, it is immaterial that Sibert claims to have been orally assured that loss occurring on the date of application would be covered under the policy. The District Court was correct in granting summary judgment in the appellee's favor, and the final dismissal of the case on the merits, with prejudice, in the appellee's favor is therefore affirmed.
PATRICK E. HIGGINBOTHAM, District Judge, dissenting:
I respectfully dissent. There was in my view no flood or loss "already in progress" on the date of the application for flood insurance. The flood, by any definition, occurred on the day of the application.
It could be argued that this third construction would work unfairness upon the insurance company by allowing an applicant to purchase flood insurance coverage as the water lapped at his door so long as the flood did not begin before midnight of the previous day. The answer to the argument is that the insurer can avoid such a possibility by either unambiguously providing in the policy that coverage is excluded for a flood that occurs at any time during the day the policy goes into effect or by relying upon the loss in progress doctrine. Of course the loss-in-progress principle would exclude coverage only for losses in progress at the time of the acceptance of the policy.
The majority, finding that the language of the contract unambiguously excluded coverage, observes that:
The insurer was, it seems, attempting to do more. It was apparently attempting to except the risk of a flood in progress, not merely at the time the policy was accepted, but for the entire day. If an insurer wishes to enjoy the benefits of insurance sales prompted by rising water and rising fear but does not wish to bear the risk of flood on the entire day of application, it can plainly so provide by deleting the word "already" from its contract of insurance, or by otherwise unambiguously excluding coverage for the entire day upon which application for insurance is made.
The majority concludes that the policy here did unambiguously exclude coverage for floods occurring at any time on the day of the application. I find the exclusionary provision of the policy ambiguous, and I would reverse the summary judgment entered in the appellee's favor and remand for a trial of any fact question as to the agreement of the parties, or failing evidence, resolve the ambiguity against the insurer responsible for the language.