20 Fla. L. Weekly Supp. 1054b
Online Reference: FLWSUPP 2011MANLInsurance — Property — Standing — Action by contractor assigned prospective insurance recovery of undetermined amount is dismissed
NEXTGEN RESTORATION, INC., A/A/O RICHARD MANLEY, Plaintiff, vs. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12-012813-CI-19. July 16, 2013. Jack Day, Judge. Counsel: Michael Grossman, Cohen Battisti, Attorneys at Law, Winter Park, for Plaintiff. Kimberly Salmon, Groelle & Salmon, P.A., St. Petersburg, for Defendant.
ORDER GRANTING DEFENDANT’SAMENDED MOTION TO DISMISS
THIS CASE came before the court June 27, 2013 on Defendant’s Amended Motion to Dismiss. The court heard argument of counsel, has reviewed extensive submissions of written argument and authority from the parties, and has conducted its own research. After due consideration, it is
ORDERED AND ADJUDGED that:
1. Said motion is GRANTED.
2. Plaintiff’s claim is dismissed with leave to file an amended complaint within twenty days hereof, if Plaintiff elects to do so.Discussion
It appears indisputable that the right to receive post-loss insurance proceeds is assignable. The undersigned has searched in vain, however, for any property insurance case approving the assignment of a prospective insurance recovery whose amount has not yet been determined. Establishing that amount, fixing it as a sum certain, is the essence of “adjusting” an insurance claim. In the case at bar, as pled, it appears Plaintiff necessarily seeks to act “on behalf of . . .an insured . . .in negotiating or . . .settlement of a claim” by taking the insured out of the equation and submitting its disputed invoice to the Defendant as a fait accompli. If such is, indeed, the Plaintiff’s claim, then it fits the statutory definition of public adjusting just quoted, as defined in Section 626.854, Florida Statutes — which proscribes such conduct by contractors.
In summary, the court does not believe Plaintiff has stated a cause of action against Defendant for breach of contract. In the event Plaintiff can plead around these difficulties, or present an alternative theory, it may file an amended complaint for that purpose within twenty days.
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