21 Fla. L. Weekly Supp. 670a
Online Reference: FLWSUPP 2107CASEInsurance — Homeowners — Standing — Assignment — Where homeowner’s policy contains non-assignment provision and loss settlement provision, company that performed water extraction services on homeowner’s property has no standing to bring action against insurer until after homeowner has fulfilled her obligation to adjust loss with insurer
ASAP RESTORATION AND CONSTRUCTION, INC. A/A/O SUZANNE CASEY, Plaintiff, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Defendant. Circuit Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2012 CA 019785 XXXXMB. August 23, 2013. Honorable Jack S. Cox, Judge. Counsel: Ely R. Levy and Venessa Valdes, Militzok & Levy, P.A., Hollywood, for Plaintiff. Karen J. Jerome Smith, Groelle & Salmon, P.A., West Palm Beach, for Defendant.
REVERSED. 40 Fla. L. Weekly D1201a (ASAP Restoration v. Tower Hill Ins. Co., 4D13-4174, 5/20/2015)
AMENDED ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
(This order was amended to remove the last sentence of the last full paragraph on Page 3 of the original version)
THIS CAUSE having come on to be heard on July 31, 2013 at 4:30 p.m., on the Defendant’s Motion to Dismiss and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that:
Said Motion is hereby GRANTED.
The Complaint shall be dismissed with prejudice as Plaintiff lacks standing to bring suit.
LEGAL DISCUSSION
This is a one count breach of contract action of a homeowner’s insurance policy. It is not brought by the Insured. It is brought by ASAP Restoration & Construction, Inc. claiming to be the assignee of the insured based upon an assignment from Defendant’s policyholder, Suzanne Casey. According to the Complaint, the Plaintiff, ASAP Restoration & Construction, Inc., as a contractor performed emergency water extraction services and construction at the Insured’s home. The services were performed pursuant to Exhibits attached to the complaint. The exhibits include the February 13, 2012 EMERGENCY SERVICES AGREEMENT AND ASSIGNMENT OF INSURANCE RIGHTS and the February 20, 2012 CONSTRUCTION AGREEMENT AND ASSIGNMENT OF INSURANCE RIGHTS. Both agreements contain the following language:
“Customer hereby assigns and transfers any and all after-loss insurance rights, benefits and Causes of action to the full extent allowed by law under the above property insurance policy to ASAP Restoration & Construction, Inc. . . . .” (Emphasis added).
In the February 20, 2012 agreement the Contractor agrees to handle directly any dispute (the scope the claim, price or coverage) with the insurance company. This includes any litigation of the coverage. These exhibits are part of the pleading.
The Court finds that controlling case law in Florida does permit the assignment of insurance proceeds, payments or benefits due under an insurance policy. Lexington Ins. Co. v. Simkins Industries, Inc., 704 So. 2d 1384 (Fla. 1998) [23 Fla. L. Weekly S41a]. These cases however, do not support the assignment of a cause of action to determine the amount due under the policy when the policy contains an anti-assignment clause such as the one in this case and provides for claims adjustment.
An insurance policy may be assignable, or not assignable, as provided by its terms. Lexington Ins. Co., Inc., 704 So. 2d at 1386.
Statute 627.422, which provides:
A policy may be assignable, or not assignable, as provided by its terms. Subject to its terms relating to assignability, any life or health insurance policy under the terms of which the beneficiary may be changed upon the sole request of the policy owner may be assigned either by pledge or transfer of title, by an assignment executed by the policy owner alone and delivered to the insurer, whether or not the pledgee or assignee is the insurer. Any such assignment shall entitle the insurer to deal with the assignee as the owner or pledgee of the policy in accordance with the terms of the assignment, until the insurer has received at its home office written notice of termination of the assignment or pledge or written notice by or on behalf of some other person claiming some interest in the policy in conflict with the assignment. (Emphasis added).
Despite the foregoing, a provision in an insurance contract forbidding either party from assigning a party’s rights under the contract without written consent of the other party will be construed as barring only an assignment of rights and privileges under the contract, rather than precluding the assignment of an accrued claim for damages arising from its breach. See, Rapid Settlements, Ltd. V. Dickerson, 941 So.2d 1275 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2924c]; see also Aldana v. Colonial Palms Plaza, LTD, 591 So. 2d 953, 955 (Fla. 3d DCA 1991) (prohibition against assignment in contract will preclude assignment of contractual duties but not assignment right to receive payments due under contract).
Because of the non-assignment provision in the policy, Plaintiff cannot bring any action against Tower Hill until and only if a payment is due and owing to the insured under the policy. The parties to the Insurance Contract agreed that such payment only becomes due under the policy after the insured has fulfilled its obligation to adjust the loss with the insurer. This Plaintiff cannot and does not step into the shoes of the Insured to adjust the loss. Establishing the amount due under the policy is the very essence of “adjusting” an insurance claim and the policy at issue in this case expressly provides that this obligation must be fulfilled by the insurer and its named insured.
As such the policy provisions control and the Court finds the anti-assignment provision and Loss Settlement provisions of the policy to be dispositive. These policy provisions, when read together, preclude the assignment of a cause of action to determine the amount due under the policy. Accordingly, the only “assignment” enforceable under this policy of insurance is an assignment of a fully accrued right to payment. Under the rules of law and policy of insurance, an accrued right to payment is triggered by an agreement between the insured and insurer or a judgment by the court. In other words, the Contractor has not standing and has nothing to do with the contractual method of determining of the amount to be paid. The Plaintiff has no standing to bring a law suit to supersede the parties’ agreement under the policy.
The Plaintiff’s case is Dismissed with Prejudice.
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