18 Fla. L. Weekly Supp. 989a
Online Reference: FLWSUPP 1810HECH
Insurance — Contracts — Action arising out of a public adjusters contract and appraisal agreement which charged defendants 9% and 4% respectively for amounts recovered from insurance company as a result of defendants’ filing of a supplemental claim to recover for hurricane damage to defendants’ property — Plaintiff was not entitled to collect percentage of both the prior and subsequent recoveries where contract terms clearly stated that the fee was a percentage of the subsequent recovery, plaintiff played no part in the initial recovery, any agreement for that portion would be without consideration and to find otherwise would be contrary to public policy — Settlement — Adjusters — The 13% plaintiff charged was in contravention of rule 69B-220.201, Florida Administrative Code, which states that no public adjuster shall charge, agree to, or accept as compensation any payment equal to more than 10% of any amount of any insurance settlement or claim payment — Argument that appraisal agreement is a separate contract for distinct services and should not be viewed as part of the recovery for the public adjusting services, thereby dropping the amount charged for adjustment services below the 10% limit, is rejected where appraisal agreement was signed on the same day, makes reference to the public adjuster contract, and would be impossible to interpret in isolation
HECHT CONSULTING CORP., Plaintiff, vs. MANORS XI AND MANORS XII OF INVERRARRY XI ASSOCIATION, INC., MANORS XI AND MANORS XII OF INVERRARY XII ASSOCIATION, INC. and POINTE MANAGEMENT GROUP, Defendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. CACE-08-064243 (25). June 22, 2011. Honorable Carol-Lisa Phillips, Judge.
ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on June 14, 2011 on Defendant’s cross-motion for final summary judgment. The Court having considered the same, having heard argument, and being duly advised of the applicable law, finds and decides as follows:
Summary judgment may issue only if “there are no genuine issues as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Rule 1.510(c) Fla. R. Civ. Pro. Meaning that, unless the material facts are so “crystallized” that nothing remains except questions of law, summary judgment should not be granted. Moore v. Morris, 475 So.2d 666 (Fla. 1985). The moving party bears the burden of showing the absence of any genuine issue of facts, after which, the burden shifts to the opposing party to demonstrate a fact in controversy. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). In evaluating a summary judgment motion, all inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Ins. Co. v. Stuckey, 220 So.2d 421 (Fla. 4th DCA 1969).
The undisputed set of operative facts is as follows. Defendants, Manors of Inverrary XI and Manors of Inverrary XII (Manors), own and operate two condo buildings. In 2006, Hurricane Wilma damaged their property. Manors retained a public adjuster to file claims with their insurance provider, resulting in a recovery of $4,440,587.34, fully paid to Manors by June 21, 2007. Afterwards, Manors XII retained Plaintiff, Hecht Consulting, to file a supplemental claim. On November 19, 2007, Manors entered into both a Public Adjusters Contract and an Appraisal Agreement. On December 27, 2007, Manors XI entered into identical contracts. Those contracts stated that Manors agreed to pay for services, 13% (9% and 4% respectively) of “the whole amount, of the loss and damages, including salvage when adjusted or otherwise recovered from the insurance company involved.” On May 20, 2008, Manors recovered an additional $2,974,225.20. Hecht was then paid $386,649.44, 13% of the supplemental recovery. The parties dispute two issues, which they now bring before the court.
The first issue is whether Hecht is entitled to collect 13% of the supplemental recovery, or of both the prior and subsequent recoveries. Where contract terms are unambiguous, the parties’ intent must be discerned from the four corners of the document. Robert C. Roy Agency, Inc. v. Sun First Nat’l Bank, 468 So.2d 399, 405 (Fla. 4th DCA), rev. denied, 480 So.2d 1295 (Fla.1985). In the absence of ambiguity, the language itself is the best evidence of the parties’ intent and its plain meaning controls. Acceleration Nat’l Serv. Corp. v. Brickell Fin. Servs. Motor Club, Inc., 541 So.2d 738 (Fla. 3d DCA), rev. denied, 548 So.2d 662 (Fla.1989).
After hearing argument and reviewing the contract, this Court finds that the contract terms clearly state that the fee is a percentage of the subsequent recovery. To give the contract the meaning asserted by Hecht would lead to absurd results. Hecht played no part in the initial recovery and any agreement for a portion of that award would be without consideration. It would also be contrary to public policy. Admittedly after the disputed contracts were made, the Florida Senate nevertheless specifically limited contract fees on a supplemental filing to the supplemental recovery, to preclude the sort of recovery to which Hecht argues he is entitled. §626.854(11)(a) Fla. Stat. (2009).
Second, Manors allege that Hecht charged 13% in contravention of rule 69B-220.201, Florida Administrative Code. That rule, enacted on September 3, 2006, requires that “no public adjuster shall charge, agree to, or accept as compensation or reimbursement any payment, commission, fee, or other thing of value equal to more than ten percent (10%) of any amount of any insurance settlement or claim payment.” Fla. Admin. Code 69B-220.201(5)(b). Hecht claims that the rule does not apply to the disputed contracts as they were entered into after the 90 days of the emergency rule’s effect. However, the rule specifically states, “[t]his subsection applies to all claims that arise out of the events that created the State of Emergency, whether or not the adjusting contract was entered into while the State of Emergency was in effect and whether or not a claim is settled while the State of Emergency is in effect.” Fla. Admin. Code 69B-220.201(5)(d). Thus, the rule clearly applies. Next, Hecht argues that the Public Adjuster Contract was only for 9%, and was consequently in accordance with the rule. He argues that the Appraisal Agreement is a separate contract for distinct services and should therefore not be viewed as part of the recovery for the public adjusting services, or as exceeding the 10% limit. This Court rejects Hecht’s contentions. The Appraisal Agreement was signed on the same day, makes reference to the Public Adjuster Contract, and would be impossible to interpret in isolation. Consequently, this Court finds that the Public Adjuster Contract and the Appraisal Agreement together form one contract, and that Hecht therefore illegally charged 13% for public adjusting services. Accordingly, it is hereby
ORDERED AND AJUDGED that Defendants’ motion for final summary judgment is GRANTED. Hecht is moreover ordered to return to Manors, $89,226.92, equal to the illegally obtained 3% of the supplemental recovery already paid to Hecht.
