20 Fla. L. Weekly Supp. 865a
Online Reference: FLWSUPP 2009CHILInsurance — Homeowners — Assignment — Water mitigation company/assignee action against insurer that paid benefits to insured — Assignment of homeowner’s rights under policy after property loss was incurred is valid irrespective of policy provision prohibiting assignment without consent of insurer — Assignment of all insurance rights, benefits and proceeds is full assignment, not partial assignment — Insurer that had notice of valid assignment is liable for payment of services rendered by water mitigation company despite having already paid policy limits for water damage to insured
GRAHAM’S CARPET CLEANING & RESTORATION a/a/o Neilda Childers, Appellant, vs. ROYAL PALM INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-091 AP. L.T. Case No. 10-6858 CC 05. June 18, 2013. On Appeal from the County Court for Miami-Dade County, Wendell Graham, Judge. Counsel: Earl I Higgs, Jr., of Cohen Battisti, for Appellant. William S. Berk, Andrew J. Chan, and Carol C. Berk, of Berk, Merchant, & Sims, PLC, for Appellee.
(Before VENZER, BRENNAN, and GORDO, JJ.)
(PER CURIAM.) Graham’s Carpet Cleaning and Restoration as the assignee of Neilda Childers (“GCC”) is appealing the Final Summary Judgment rendered by the lower tribunal in favor of Royal Palm Insurance Company (“Royal Palm”).
Neilda Childers (“Insured”) sustained water damage to her home on February 25, 2010. She immediately contacted GCC to perform emergency water extraction services. On the day the damage occurred, she entered into a contract for their services and assigned “any and all insurance rights, benefits, and proceeds under the above referenced policy to her repair facility [GCC]. . . [She further authorized] direct payment of any benefits or proceeds to [GCC] as consideration for any repairs made by [GCC].” (Emphasis added).
The Insured had a residential insurance policy with Royal Palm. The policy was effective from September 21, 2009 through September 21, 2010. The Insured noticed Royal Palm of the water damage on February 25, 2010. On March 4, 2010, GCC sent written notice to Royal Palm of the homeowner’s assignment of her policy rights and Royal Palm acknowledges receiving notice of the assignment from GCC prior to issuing any payment on the policy.
Royal Palm found, after inspection, that water intrusion from a failed supply line to the toilet in the master bathroom had caused extensive damage to her home. It estimated that the damage to the structure and the contents of the home totaled $26,017.55 for structural damage and $8,169.44 for content damages for a sum of over $34,000 in covered damages. However, the policy contained a Limited Water Damage Coverage Endorsement. The policy limited liability for water damage to $10,000. On March 30, 2010, Royal Palm issued a check for $10,000 directly to the Insured.
GCC filed suit against Royal Palm for the non-payment of insurance benefits. Royal Palm filed a motion for summary judgment claiming there was no valid assignment because Royal Palm did not consent to the assignment of the policy. Thus, its obligation was to pay the Insured and once it tendered the policy limit it was devoid of any further liability under the policy. Thereafter, GCC filed a cross motion for summary judgment contending that the insured validly assigned her rights under the policy to GCC and Royal Palm was on notice of the assignment of benefits. As such, GCC was legally entitled to the payment for the services rendered. GCC further argued that Royal Palm’s election to pay the Insured directly, despite being made aware of the assignment, made that payment a gratuitous payment; therefore, Royal Palm is liable for paying for GCC’s services.
The trial court acknowledged the legality of the assignment of benefits at the summary judgment hearing, finding that “there is no language in the subject policy or in the Assignment of Insurance Benefits that legally entitles the Plaintiff to be the recipient of the first payment of insurance proceeds. Accordingly, under the plain reading of the [Limited Water Damage Coverage Endorsement] and the facts of this case, the Court finds that [Royal Palm] satisfied its obligations under the contract of insurance upon paying the maximum limits that it was required to pay under the subject policy.”
GCC argues on appeal that the trial court committed reversible error since it had a valid assignment of benefits and was entitled to the insurance monies as the assignee of the Insured. Further, GCC contends that the Insured was not required to obtain Royal Palm’s consent to assign the insurance policy to GCC and that Royal Palm should not be allowed to assert a “partial assignment” claim on appeal as the issue was not raised before the trial court.
Royal Palm argues that it did not consent to the assignment; therefore, the assignment was not binding pursuant to the insurance policy. Royal Palm also argues that if there was an assignment, GCC only received”partial assignment” of the Insured’s rights under the insurance policy. Royal Palm contends that GCC was not entitled to priority of payment over the Insured because Royal Palm owed a duty to the Insured. Royal Palm thus claims it did not owe a duty to GCC or have an obligation to pay GCC in lieu of the Insured.
The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. A de novo review of an appeal is defined as “[a]n appeal in which the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings.” Black’s Law Dictionary (9th ed. 2009). Therefore, “[i]f an appellate court, in considering whether to uphold or overturn a lower court’s judgment, is not limited to consideration of the reasons given by the trial court but rather must affirm the judgment if it is legally correct regardless of those reasons, it follows that an appellee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below. It stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court.” Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 645-646 (Fla. 1999)[24 Fla. L. Weekly S71a].
Florida Statute section 627.422 provides that “[a] policy may be assignable, or not assignable, as provided by its terms.” § 627.422, Fla. Stat. (2013). Contractual rights are assignable unless the assignment is prohibited by the contract. Classic Concepts, Inc. v. Poland, 570 So. 2d 311, 313 (Fla. 4th DCA 1990). However, a policy prohibiting assignment without the consent of the insurer does not apply to “prevent assignment of a claim or interest in the insurance money then due, after loss.” Gisela Investment, N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984). In the case at bar, the assignment occurred after the Insured incurred a property loss, as such, the assignment is valid. Id. Further, Royal Palm concedes notice of the assignment. The assignment was for “any and all insurance rights, benefits, and proceeds under the above referenced policy . . . . .” (Emphasis added). Therefore, the assignment was a full assignment and not a partial assignment.
Since the assignment was valid and Royal Palm admitted notice of the assignment, Royal Palm is liable for the payment of the services rendered by GCC. Royal Palm’s argument that it paid the Insured and is no longer liable is insufficient to prevent it from liability under the insurance policy where it was given notice of the Insured having assigned her rights under the policy to GCC. Royal Palm must satisfy its obligation to pay GCC pursuant to the terms of the assignment. Gisela Investment, N.V. v. Liberty Mut. Ins. Co., 452 So. 2d at 1057.
The final summary judgment entered by the trial court is hereby reversed. Appellate attorneys’ fees are granted conditioned on that party prevailing on the merits on remand in an amount to be determined by the trial court. This case is remanded to the trial court for proceedings consistent with this opinion.
REVERSED.
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