20 Fla. L. Weekly Supp. 798b
Online Reference: FLWSUPP 2008PSMIInsurance — Homeowners — Standing — Assignment — Company that provided water extraction service on homeowner’s flooded property has standing to bring action against insurer for unpaid balance of claim for company’s services — Anti-assignment provision in homeowner’s policy does not apply to assignment after loss — Motion to dismiss is denied
ANDERSON RESTORATION & EMERGENCY SERVICES LLC a/a/o Phyllis Smith, Plaintiff, vs. FLORIDA PENINSULA INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. CC13-0550, Division 66. June 3, 2013. Charles J. Tinlin, Judge. Counsel: Julie E. Bauman, Law Office of Guy H. Gilbert, Orlando, for Plaintiff. David G. Lohr, Groelle & Salmon, P.A., Vero Beach, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS
This matter came before the Court for hearing on May 13, 2013, upon Defendant’s Motion to Dismiss.
The Plaintiff’s claim is brought under an assignment of insurance benefits for water removal services provided to the Defendant’s insured, Phyllis Smith, at her residence following a flooding incident. The Plaintiff billed the Defendant $14,679.78 but, was only paid $3,483.41 and is seeking the balance along with costs and attorneys’ fees.
In its Motion to Dismiss the Defendant alleges that their insured may not assign the benefits, duties and obligations under her homeowner’s policy to the Plaintiff because the policy prohibits such an assignment. Sections I & II, subsection 7 of the policy states:
Assignment. Assignment of this policy will not be valid unless we give our written consent.
At no time did the Defendant give its written consent to their insured to assign the policy. The Defendant also relies on section 627.422 Florida Statutes which states in pertinent part:
A policy may be assignable or not assignable, as provided by its terms.
The Defendant agrees that Florida law provides that the right to receive the payment of proceeds due under a homeowner’s policy is assignable after a losshas occurred. See Lexington Ins. Co. v. Simkins Industries, Inc., v. Simpkins Industries, Inc. 704 So.2d 1384 (Fla. 1998) [23 Fla. L. Weekly S41a] and Better Construction, Inc. v. National Union Fire Ins. Co. 651 So.2d 141 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D420a]. However, the Defendant argues that beyond the right to receive payment due after a loss pursuant to an assignment of benefits, the duties and obligations owed under the policy are non-delegable and non-assignable without the written consent of the Defendant, which it never gave. In support of its’ position the Defendant cites Rapid Settlements, Ltd. v. Dickerson, 941 So.2d 1275 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2924c]; Shaw v. State Farm Fire and Casualty Co., 37 So.3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D1020a] and Aldana v. Colonial Palms Plaza Ltd., 591 So. 2d 953 (Fla. 3rd DCA 1991) [16 Fla. L. Weekly D2761]. These cases held that“as a rule of construction, a prohibition against an assignment of a contract will prevent assignment of the contractual duties, but does not prevent assignment of the right to receive payments due-unless the circumstances indicate to the contrary. See Rapid Settlements, id @ 1276, citing Aldana, id @ 955.
When the Plaintiff agreed to do the water removal services for the Defendant’s insured she signed a form entitled “WORK AUTHORIZATION AND ASSIGNMENT OF INSURANCE RIGHTS”. The assignment clause states:
ASSIGNMENT: We hereby assign and transfer any and all insurance rights, benefits, and causes of action under the above property insurance policy to Anderson Restoration & Emergency Services, LLC. We have identified our insurance information to the best of our ability above. We make this assignment in consideration of ARES’s agreement to perform services and supply materials and otherwise perform its obligation under this contract, including not requiring full payment at the time of service.
On the form Smith named the Defendant as the insurer of her property.
It is the Plaintiff’s position that because this was a post loss claim that the assignment was a complete assignment by Smith of all benefits, duties and obligation under the policy and it has proper standing to bring this action for the balance of the amount for the services provided to Smith. In West Florida Grocery Co. et al v. Teutonia Fire Ins. Co., 77 So. 209 (Fla. 1917), the Court stated “it is a well-settled rule that the provision in a policy relative to the consent of the insurer to the transfer of an interest therein does not apply to an assignment after loss.”Id. @ 210-211 (emphasis added). This principal was reiterated by the Court in its opinion in Continental Casualty Co. v. Ryan Incorporated Eastern, 974 So.2d 368 (Fla. 2008) [33 Fla. L. Weekly S59a] where the Court held that anti-assignment provisions in an insurance policy do not apply to an assignment after loss. Moreover, in Gisela Investment, N. V., et al v. Liberty Mutual Insurance Co., 452 So.2d 1056 (Fla. 3d DCA 1984) the Court held that the provision in an insurance policy prohibiting assignment of the insurance policy except with the consent of the insurer did not apply to prevent assignment of the claim or interest in the insurance money due after a loss. See also, Air Movers Structural Drying & Cleaning Specialists a/a/o Judy Dirr v. Fidelity Fire & Casualty Co. d/b/a Frontline Homeowners Insurance, 19 Fla. L. Weekly Supp. 735a (County Ct., Sarasota County, Florida, May 18, 2012) where, in denying the Defendant’s Motion to Dismiss, the court held that in addition to the anti-assignment provision not precluding the insured from assigning proceeds to a third party after a loss, even without the consent of the insurer, the assignee had standing to bring an action against the insurer on its claim for damages.
The Court finds that the policy of allowing a post loss claim by an assignee even where an anti-assignment provision is found in an insurance policy is just good public policy. If Smith had to wait for a claims adjuster from the insurer to arrive before beginning water extraction or remediation after a loss, additional damage from the water event could occur. Additionally, the same would be true if the insured did not have the funds immediately available to pay for the water extraction and companies such as the Plaintiff were not able to rely on an assignment of insurance benefits to be assured payment.
Because the assignment of benefits by Smith to the Plaintiff occurred “post loss” it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is DENIED.
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