21 Fla. L. Weekly Supp. 930a
Online Reference: FLWSUPP 2109TAYLInsurance — Homeowners — Water extraction contractor’s execution of waiver and release of lien releasing claim of lien against homeowners/insureds did not waive and release contractor’s claims against insurer
ADVANCED RESTORATION, INC., a/a/o BERNADETTE TAYLOR, Plaintiff, vs. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 12-10624CO. May 30, 2014. Kathleen T. Hessinger, Judge. Counsel: Ana Cristina Torres, Cohen Battisti, Attorneys at Law,Winter Park, for Plaintiff. Keith Hoffman, Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This Cause came to be heard before this Court on Defendant’s Motion for Summary Judgment with the Parties present, through counsel, and this Court having heard argument, reviewed the pleadings and being otherwise advised of the premises, it is hereby Ordered and Adjudged as follows,
1. Plaintiff sued Defendant for breach of contract for failing to pay the full amount of repairs as a result of water intrusion to the assignor/insured’s home. Defendant disagrees as to the amount owed.
2. Defendant moves for a Final Summary Judgment claiming Plaintiff waived any and all claims against the insurance company, Defendant, when it signed a “Waiver and Release of Lien upon Final Payment.
3. The undisputed facts prove that a water loss occurred, on April 18, 2012, at the insured’s home. Plaintiff performed the water extraction and repairs to the premises. Plaintiff received an assignment of insurance benefits from the homeowner/insured, Bernadette Taylor. Plaintiff filed a claim of lien against the homeowners, Ralph B. Taylor III and Bernadette C. O’Hare Taylor, on July 11, 2012, for the amount of $32,690.42. Plaintiff received payments from the insurance company, on July 30, 2012 and August 6, 2012, in the amounts of $23,275.71 and $7,192.42, respectfully, for a total amount of $30,468.13. On November 16, 2012, Plaintiff filed this breach of contract action against Defendant. On January 9, 2013, Plaintiff signed and recorded in the Pinellas County records a “Waiver and Release of Lien upon Final Payment,” thereby releasing the claim of lien against the homeowners/insureds.
4. Defendant argues that the “Waiver and Release of Lien upon Final Payment” means Plaintiff released and/or waived any and all claims as a result of the April 18, 2012 date of loss against Defendant, the insurance company. Defendant argues that the plain reading of the “Waiver and Release of Lien upon Final Payment” releases all claims against the homeowners/insureds, thereby waiving and releasing all claims against the insurance company.
5. Defendant’s argument is without merit. The “Waiver and Release of Lien upon Final Payment” is exactly what it purports to be, a release and waiver of its claim of lien against the homeowners/insureds’ home. The waiver and release states that the
. . .lienor, in consideration of the final payment in the amount of $32690.42, hereby waives and releases its lien and right to claim a lien including all claims, change orders or demands whatsoever for labor, services, or materials furnished to Ralph B. Taylor & Bernadette C. O’Hara Taylor for work performed on the property, located at 383 Dixie Hwy Tarpon Springs, FL 34689-5775. . .
The “waiver and release” plainly states that the Plaintiff/contractor releases the Taylors from its claim of lien and, right to claim a lien, for any work performed.
6. Defendant failed to provide any legal authority that extrapolates a contractor’s release of a claim of lien against the homeowners to a waiver of the contractor’s right, for which it received through an assignment, to sue the homeowners’ insurance company for alleged unpaid benefits. Moreover, it appears the Plaintiff/contractor would be required to release its claim of lien against the homeowners if the homeowners assigned their rights and benefits under their insurance policy to Plaintiff. By assigning their rights and benefits under the insurance policy, the homeowners are no longer obligated to the Plaintiff/contractor. The Plaintiff/contractor now stands in the shoes of the homeowner to collect the alleged remaining benefits from the Defendant/insurance company.
It is hereby Ordered and Adjudged that Defendant’s Motion for Summary Judgment is DENIED.
* * *
