21 Fla. L. Weekly Supp. 780a
Online Reference: FLWSUPP 2108LEUNInsurance — Homeowners — Standing — Assignment — Company that provided water extraction service on homeowner’s property has standing to bring action against insurer for unpaid balance of claim for company’s services — Anti-assignment provision in homeowner’s policy does not apply to assignment after loss — No merit to claim that all obligations owed by insurer to company have been satisfied by binding appraisal award — Award resulting from appraisal demand made by homeowner after effective date of assignment is not binding on company — Insurer’s motion for summary judgment is denied
BETTER LIFE RESTORATION, a/a/o ARLENE LEUNG, Plaintiff, vs. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 13-004251 (21). April 4, 2014. Eileen M. O’Connor, Judge. Counsel: Ana Cristina Torres, Cohen Battisti, Winter Park, for Plaintiff. Robert Groelle, Groelle & Salmon, P.A., Wellington, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the court on defendant’s motion for final summary judgment. The court having considered the motion and response thereto, having heard argument of counsel and being otherwise duly advised in the premises, finds and decides as follows:
On March 5, 2012, Arlene Leung (“Leung”) suffered water damage to her home located at [Editor’s Note: Address Omitted]. At the time of the loss, Leung was insured under a homeowner’s insurance policy (Policy No. 79-J3-8553-7) issued by State Farm Florida Insurance Company (“State Farm”). As a result of the water damage, Leung hired Better Life Restoration, Inc. (“Better Life”) to perform emergency water removal and construction services. In exchange for those services, on March 5, 2012, Leung executed an Authorization for Information on Account & Assignment of Insurance Benefit & Direct Pay (“the Assignment”), which provides:
I AM AUTHORIZING BETTER LIFE RESTORATION INC. TO RECEIVE ALL NECESSARY INFORMATION REGARDING MY CLAIM.
I HEREBY DIRECT MY INSURANCE CARRIER REFERENCED ABOVE TO RELEASE ANY AND ALL INFORMATION REQUESTED BY BETTER LIFE RESTORATION INC., ITS REPRESENTATIVE, OR ITS ATTORNEY FOR THE PURPOSE OF OBTAINING BENEFITS TO BE PAID FOR SERVICES RENDERED AND IN THIS REGARD I WAIVE MY PRIVACY RIGHTS. I HEREBY ASSIGN ANY AND ALL INSURANCE RIGHTS, BENEFITS, AND PROCEEDS UNDER THE ABOVE REFERENCED POLICY TO MY REPAIR FACILITY, BETTER LIFE RESTORATION INC. I HEREBY AUTHORIZE DIRECT PAYMENT OF ANY BENEFITS OR PROCEEDS TO BETTER LIFE RESTORATION INC. FOR SERVICES RENDERED.
On February 5, 2013, Better Life Restoration, as the assignee of Leung, filed a one-count amended complaint alleging breach of contract against State Farm.1 Plaintiff Better Life alleges that it submitted invoices to State Farm for water extraction and construction services performed at Leung’s residence, and that it has been underpaid by State Farm.
On February 28, 2013, State Farm filed its answer and affirmative defenses. Defendant State Farm asserts, inter alia, that: (1) Better Life does not have a valid assignment of benefits, and therefore, lacks standing to sue for breach of contract; and (2) all obligations of State Farm to Better Life have been satisfied pursuant to a binding appraisal award. Simultaneous with the filing of its answer and affirmative defenses, State Farm filed the instant motion for summary judgment. Plaintiff Better Life filed a response and the affidavit of its President, Roni Eigazar 2 A hearing was held on March 14, 2014.
Summary judgment is appropriate “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510 (c). The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Ins. Co. v. Stuckey, 220 So. 2d 421 (Fla. 4th DCA 1969).
It is well settled that summary judgment should be sparingly granted, and if there are issues of fact and the slightest doubt remains, summary judgment cannot be granted. See Campbell v. Anheuser-Busch, Inc., 265 So. 2d 557 (Fla. 1st DCA 1972). The burden to prove the non-existence of genuine triable issues is on the moving party, and the burden does not shift to the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Doubts and inferences as to the existence or nonexistence of material facts must be resolved against the movant. Id.
If the moving party meets this initial burden, summary judgment is appropriate as a matter of law against the nonmoving party if they fail to make a showing sufficient to establish the existence of an essential element of that party’s case. DeMesne v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986). The evidence presented by the nonmoving party is to be believed and all reasonable inferences are to be drawn in his favor. Holl, 191 So. 2d at 43.
In support of its motion for summary judgment, State Farm first argues that Better Life lacks standing to sue State Farm for breach of contract. Specifically, State Farm argues that the Assignment is ineffective in light of the policy’s non-assignability provision, which provides:
7. Assignment. Assignment of this policy shall not be valid unless we give our written consent.
Under Florida law, “a provision against assignment of an insurance policy does not bar an insured’s assignment of an after-loss claim.” Better Constr., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 651 So. 2d 141, 142 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D420a] (emphasis added); see also Kroener v. Florida Ins. Guar. Ass’n, 63 So. 3d 914, 916 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1334a] (noting that “the insurance policy itself could not be assigned, but that any authorized benefits that had arisen under the policy . . . could be assigned”). In the instant case, the Assignment, which is supported by the affidavit of Better Life’s President, Roni Elgazar, assigns Leung’s post-loss claim to Better Life. Under Florida law, this is an effective assignment of benefits. See Better Constr. Inc., 651 So. 2d at 141.
Next, State Farm argues that it is entitled to summary judgment because all obligations that State Farm owed to Better Life have been satisfied pursuant to a binding appraisal award. After a careful review, the court disagrees. The summary judgment evidence reveals that a demand for appraisal was made by Leung on May 25, 2012, after the effective date of the Assignment. Under Florida law, it is well settled that “an unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, and that the assignor has no right to make any claim on the contract once the assignment is complete. unless authorized to do so by the assignee.” Livingston v. State Farm Mut. Auto. Ins. Co., 774 So. 2d 716, 718 [25 Fla. L. Weekly D533c]. Since Leung demanded appraisal after the effective date of the Assignment, the court finds that any subsequent appraisal award is not binding on Better Life. In fact, it is undisputed that Better Life was not a party to the appraisal proceedings. Therefore, State Farm’s motion for final summary judgment is denied.
Accordingly, it is hereby:
ORDERED that Defendant’s Motion for Final Summary Judgment is DENIED.
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1The instant action was initially filed in the County Court, and later transferred to this Court.
2Better Life filed an amended affidavit of Roni Elgazar on March 12, 2014. However, based upon the requirements of Florida Rule of Civil Procedure 1.510 and State Farm’s objection, the court finds the amended affidavit untimely. Therefore, the court will not consider the amended affidavit. The initial affidavit of Roni Elgazar was timely filed by Better Life on March 7, 2014.
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