19 Fla. L. Weekly Supp. 735a
Online Reference: FLWSUPP 1909DIRRInsurance — Property — Assignment — “No assignment” clause in insurance policy did not prevent insured from assigning insurance proceeds to water removal service after loss — Assignment is sufficient to confer standing on assignee — Insured is not indispensable party to assignee’s action against insurer — No merit to insurer’s assertions that complaint is insufficient or that attorney’s fee demand by assignee is not valid
AIR MOVERS STRUCTURAL DRYING & CLEANING SPECIALISTS a/a/o JUDY DIRR, Plaintiff(s), vs. FIDELITY FIRE & CASUALTY COMPANY d/b/a FRONTLINE HOMEOWNERS INSURANCE, Defendant(s). County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2012 SC 2032 NC. May 18, 2012. Kimberly Bonner, Judge.
ORDER ON MOTION TO DISMISS
THIS CASE came before the court on the Defendant’s Motion to Dismiss the Plaintiff’s Statement of Claim. The claim alleges that the Plaintiff is the assignee of the Defendant’s insured, and that it provided water removal services for the insured, which was covered under a policy of insurance issued by the Defendant. The Defendant alleges that the applicable policy contains a “no assignment clause”, and that, absent its written consent, the Plaintiff has no standing to bring the present action. The Court has reviewed the applicable policy and statute (Section 627.422, Florida Statutes) and has considered the arguments of counsel. Under the holding in Better Construction Inc. vs. National Union Fire Insurance Company of Pittsburg, 651 So 2nd 141 (Fla. 3rd DCA 1995) [20 Fla. L. Weekly D420a] a “no assignment” clause in a policy of insurance does not prevent the insured from assigning proceeds to a third party after a loss, even without the consent of the insurer. The assignment issued in this case occurred after the loss, and therefore, does not preclude the Plaintiff’s claim.
The Court has also reviewed the assignment and finds that the language is sufficient to confer standing upon the Plaintiff. The Court has also considered the Defendant’s assertion that the named insured is an indispensible party to the action. The Court finds that while the named insured may be an essential witness for evidentiary purposes, she is not an indispensable party to this action.
Finally the Court has also reviewed the Defendants assertions that the complaint lacks specificity and that the attorney’s fee demand should be stricken. The Court finds those assertions without merit. The four corners of the complaint and the attachments thereto allege sufficient ultimate facts that would entitle the Plaintiff to relief, if proven at trial. Likewise, because the Plaintiff stands in the shoes of the named insured, the attorney’s fee demand is valid.
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