20 Fla. L. Weekly Supp. 1002a
Online Reference: FLWSUPP 2010DEFRInsurance — Homeowners — Standing — Assignment — Company that provided water remediation services on homeowner’s property has standing to bring action against insurer for breach of contract — Anti-assignment provision in homeowner’s policy does not apply to assignment after loss — Motion to dismiss is denied
ALL DRY WATER RESTORATION a/a/o JAIME DE FREITAS, Plaintiff, vs. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-26547 COCE. July 19, 2013. Honorable Sharon Zeller, Judge. Counsel: Ricardo J. Diaz, Cohen Battisti, Attorneys at Law, Winter Park, for Plaintiff. David A. Thornton, Groeller & Salmon, PA, Wellington, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS
This matter came for hearing on June 17, 2013, upon Defendant’s Motion to Dismiss. It is a breach of contract action arising out of water remediation services provided at the home of Jaime DeFreitas. In consideration for the services Plaintiff provided, Mr. DeFreitas agreed to assign to Plaintiff “any and all insurance rights, benefits, and proceeds under any applicable insurance policies to Plaintiff”. Upon oral argument, the Court finds that:
1. Defendant’s Motion to Dismiss the Complaint is denied.
2. The contract can be assigned even though the policy says it’s not assignable after the occurrence of the event, the loss, which gives rise to the insurer’s liability. An assignment involves the transfer of rights, a delegation involves the appointment of another to perform ones duties. If the duties are delegable, the assignment and the delegation are affected. Restatement Contracts: Section 160, Comment A; Section 148, Comment C. These are not duties which cannot be delegated. They are not even defined in the contract as a duty of the insured. They are a duty of the insurance company. The contract herein is not being assigned and the provision at SECTION I — CONDITIONS paragraph 10. Loss Payment allows a person who may be legally by assignment allowed to proceed and collect the benefits and adjuster the claim.
SECTION I — CONDITIONS
10. Loss Payment.
We will adjust all losses with you. We will pay you unless some other person is named in the policy or is also legally entitled to receive payment. Loss will be payable:
a. 20 days after we receive your proof of loss and reach written agreement with you; or
b. 60 days after we receive your proof of loss; and
(1) There is an entry of a final judgment; or
(2) There is a filing of an appraisal award or a mediation settlement with us.
WHEREFORE, Defendant’s Motion to Dismiss is DENIED.
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