21 Fla. L. Weekly Supp. 427a
Online Reference: FLWSUPP 2105MOORInsurance — Homeowners — Standing — Assignment — No merit to argument that after-loss assignment of claim proceeds to restoration company violates lien or public adjuster’s statutes
ADVANCED RESTORATION, INC., A/A/O JACK MOORE, Plaintiff, vs. UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 53-2012CC-004768-0000-00. December 9, 2013. Honorable Reinaldo Ojeda, Judge. Counsel: Ana Cristina Torres, Cohen Battisti, Winter Park, for Plaintiff. Aaron Behar, Aaron Behar, P.A., Weston, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court to be heard on the Defendant’s Motion to Dismiss, and based on all the previous Court’s rulings, the case law read by the Court, the Florida Statutes read by the Court and the arguments of Counsel, the Court find as follows:
Florida Statute 627.422 states that “A policy may be assignable or not assignable as provided by its terms.” The policy in question has a non-assignability clause whose purpose is to “prevent an increase of risk and hazard of loss by a change in ownership without the knowledge of the insurer.” See Lexington Ins. Co. v. Simkins Industries, 704 So. 2d 1384 (Fla. 1998) [23 Fla. L. Weekly S41a].
It is well settled that a prohibition against assignment of a contract will prevent assignment of contractual duty, but does not prevent assignment of the right to receive payment due, nor preclude the assignment of an accrued claim for damages arising from its breach. See Sidney H. Paley and Allen Tucker v. Cocoa Masonry, 433 So. 2d 70, (Fla. 2d DCA 1983) and Aldana v. Colonial Palms Plaza, Ltd., 591 So. 2d 953, (Fla. 3d DCA 1991).
The assignment between the assignor and the assignee is a complete valid assignment as evidenced by the language “the property owner assigns any and all interest in the claim proceeds to and from the property owner’s insurance policy to Advanced Restoration, Incorporated.” Nothing in this language is overbroad, vague, nor ambiguous.
Further, if Plaintiff prevails, Plaintiff would be entitled to recover its reasonable attorney’s fees pursuant to Florida Statute §627.428. Also, the assignment in question does not violate Florida Statute §627.405, as the assignor/homeowner/insured had an insurable interest in the things insured, namely his home as homeowners at the time of loss.
The Court has previously held that the insured after loss was free to then assign his or her right to collect under the policy to the assignee. See Sidney H. Paley and Allen Tucker v. Cocoa Masonry, 433 So. 2d 70 (Fla. 2d DCA 1983) and Aldana v. Colonial Palms Plaza, Ltd., 591 So. 2d 953 (Fla. 3d DCA 1991).
Plaintiff alleges that the assignment in question violates Florida’s lien statutes, specifically Florida Statute §713.01. The Court finds that Chapter 713 of the Florida Statutes deals with (a) construction liens; (b) miscellaneous liens; (c) oil and gas liens; and, (d) Florida Uniform Federal Lien Registration Act. As such, the case at bar deals with an assignment and not with any type of construction lien and as such Chapter 713 of the Florida Statutes is inapplicable and irrelevant to the case at bar.
The assignment is not relative of Florida’s public adjuster’s statute, which is Florida Statute §626.854 (16), as Defendant has not shown Plaintiff to be an adjuster or act in the capacity of an adjuster in the case at bar.
Additionally, Florida Statute §726.854(16) allows a contractor to dismiss or to discuss or explain a bid for construction or repair of covered property with the residential property owner who has suffered loss or damage covered by a property insurance policy or the insurer of such property if the contractor is doing so for the usual and customary fees applicable to the work to be performed as stated in the contract between the contractor and the insured.
Therefore, it is hereby ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is DENIED.
* * *
