20 Fla. L. Weekly Supp. 681b
Online Reference: FLWSUPP 2007GRAHInsurance — Homeowners — Payment for water mitigation services was not invalid for being issued in name of plaintiff repair service, insured homeowner, and mortgagee where additional payees were required to be listed on draft by terms of policy
GRAHAM’S CARPET CLEANING & RESTORATION, (A/A/O SHERVER, YVONNE), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502012CC008884XXXXMB. April 3, 2013. Honorable Nancy Perez, Judge. Counsel: Imran Malik, Cohen Battisti, Attorneys at Law, Winter Park, for Plaintiff. Jeffrey L. Goodman, Herssein Law Group, North Miami, for Defendant.
FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on January 9, 2013 for hearing on Defendant’s Motion for Summary Judgment, and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities, having heard oral argument, having made a thorough review of the matters filed of record, and having been sufficiently advised in the premises, the Court finds as follows:
BACKGROUND
Plaintiff, Graham’s Carpet Cleaning & Restoration (“Plaintiff’), filed the above styled lawsuit as assignee of Yvonne Sherver against Defendant based on alleged breach of a homeowners insurance contract. Plaintiff is a water mitigation company that rendered water damage mitigation services at the insured’s residence as a result of water damage which occurred on or about May 20, 2012. Plaintiff submitted charges totaling $6,191.00 for the water mitigation services performed in this case. Thereafter, on or about June 7, 2012, Defendant issued payment to Plaintiff under Coverage A of the policy of insurance in the amount of $5,191.00, which accounted for the total amount of Plaintiffs charges, less the insured’s deductible on the policy. Defendant’s payment was sent directly to the Plaintiff and listed the Plaintiff, along with the insured and mortgagee as payees on the draft. It is undisputed that the insured’s insurance policy carried a $1,000.00 deductible and that the deductible was properly applied in this case. It is further undisputed that Plaintiff received the draft for $5,191.00 from Defendant prior to the initiation of this lawsuit but refused to deposit the check.
CONCLUSIONS OF LAW
The policy of insurance at issue in this case contains a mortgage clause which states “If a mortgagee is named in this policy, any loss payable under Coverage A or B will be paid to the mortgagee and you, as interests appear.” Accordingly, pursuant to the insurance policy at issue, any payment issued under Coverage A or B was required to include both the insured as well as the mortgagee, GMAC Mortgage, LCC.
In this case, there is no dispute that Defendant issued payment for water mitigation services under Coverage A of the insurance policy, that the payment was sent directly to the Plaintiff, that Plaintiff received the payment from the Defendant, and that the payment received accounted for the total amount of Plaintiff’s bill, less the insured’s $1,000.00 deductible. There was also no dispute that Defendant properly applied the insured’s deductible to Plaintiff’s bill in this case. It is also undisputed that GMAC Mortgage, LLC is a named mortgagee on the insurance policy. Plaintiff received the draft from the Defendant prior to the initiation of this lawsuit but refused to deposit the draft. However, by issuing payment to Plaintiff in the total amount of $5,191.00 for water mitigation services rendered, Defendant fulfilled its obligations under the insurance policy at issue. Specifically, Defendant properly issued payment to the Plaintiff pursuant to the terms of the insurance policy at issue and that payment represented payment in full prior to the initiation of the instant lawsuit. Additionally, Plaintiff argued payment was due under the reasonable repairs provision of the policy however the claim was not listed and Defendant has the right and elect payment.
The Court rejects Plaintiff’s argument that the payment made to Plaintiff was invalid merely because additional payees were listed on the draft. The Court finds that those additional payees were required to be listed on the draft pursuant to the terms of the insurance policy at issue. The pleadings on file and the evidence present no genuine issue of material fact in this case. The undisputed evidence illustrates that the payment by Defendant was properly issued pursuant to the relevant and applicable portions to the insurance policy at issue. It is also undisputed that Plaintiff had received the payment from Defendant prior to the initiation of this lawsuit but refused to deposit the draft. As such, this Court finds that Plaintiff had been reimbursed in full prior to the initiation of this lawsuit and therefore Defendant is entitled to summary judgment as a matter of law. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED. Plaintiff shall take nothing in this action, and Defendant shall go hence without delay. The Court reserves jurisdiction to award attorney’s fees and costs.
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