21 Fla. L. Weekly Supp. 274b
Online Reference: FLWSUPP 2103TIMPInsurance — Homeowners — Water extraction services — No merit to argument that failure to attach homeowner’s policy to complaint filed by company that provided water extraction services warrants dismissal of complaint where complaint states that plaintiff is not in possession of policy but that policy would be provided by insurer during discovery — Standing — Assignment — Complaint and attached assignment stating that homeowner assigned all insurance rights, benefits and proceeds to plaintiff in exchange for services rendered as result of property damage are sufficient to establish prima facie case that there was agreement between plaintiff and homeowner for performance of water extraction services in exchange for assignment of rights under policy — Arguments regarding deficiencies in assignment and inconsistency between assignment and allegations of complaint are factual disputes not appropriate for resolution in motion to dismiss — Plaintiff was not required to obtain consent of insurer to have valid after-loss assignment
RESTORATION 1 OF SOUTH FLORIDA, LLC a/a/o VERONICA TIMPSON, Plaintiff, vs. CITIZENS PROPERTY INSURANCE CORPORATION, a Florida statutory corporation and an agency, department or subdivision of the State of Florida, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-07051 CC 23. October 9, 2013. Jason Emilios Dimitris, Judge. Counsel: Joshua Whisler, Law Offices of Michael Biberman, North Miami Beach, for Plaintiff. Cable Poag, Koch, Parafinczuk & Wolf, P.A., Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’SMOTION TO DISMISS
THIS cause came before the Court on Defendant’s Motion to Dismiss.
After careful consideration of the motion, responses thereto, and relevant case law, the Court’s findings are set forth below.
Restoration 1 of South Florida, LLC (“Plaintiff’) filed a one count Complaint against Citizens Property Insurance Corporation (“Defendant”) alleging breach of contract. Plaintiff alleges in its Complaint that Veronica Timpson (the “Assignor”) was covered under a homeowner’s insurance policy provided to her by the Defendant. The Assignor, according to Plaintiff’s Complaint, assigned all her rights and benefits under the insurance policy in an after-loss assignment (the “Assignment”) of insurance proceeds to Plaintiff in exchange for Plaintiff’s performance of emergency water extraction services. As a result, Plaintiff argues, it is entitled to payment by the Defendant. By failure or refusal to provide payment for all benefits due and owed, Plaintiff contends that Defendant has breached the insurance policy. In response, Defendant filed a Motion to Dismiss Plaintiff’s Complaint, arguing that Plaintiff failed to state a cause of action. Specifically, Defendant alleges that: (1) Plaintiff failed to attach a copy of the insurance policy (the “Policy”) to its Complaint; (2) Plaintiff failed to attach or incorporate any documents to support its allegation that an agreement existed between Plaintiff and the Assignor whereby Plaintiff was to provide necessary emergency water removal services for the Assignor and, in exchange, the Assignor would assign her rights under the Policy; (3) the Assignment is ineffective and invalid because it does not convey the terms of the agreement; and (4) Plaintiff did not obtain written consent from Defendant to enter into an assignment and, therefore, lacks standing to sue. Plaintiff subsequently filed a response to Defendant’s Motion to Dismiss.
Courts have made clear that a motion to dismiss is designed to test the legal sufficiency of a complaint and not to determine any factual issues. The Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006) [31 Fla. L. Weekly S171a]. Unlike a motion for summary judgment, the trial court may not rely on facts adduced in depositions, affidavits, or other proofs. Jordan v. Griley, 667 So. 2d 493 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D334c]. All allegations in the complaint must be taken as true and all reasonable inferences drawn therefrom must be construed in favor of the non-moving party. Greene, 926 So. 2d at 1199; Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D847a].
Defendant first argues that Plaintiff’s Complaint does not comply with Rule 1.130(a) of the Florida Rules of Civil Procedure as Plaintiff failed to attach the Policy to its Complaint and, consequently, failed to state a cause of action upon which relief can be granted. Defendant’s Motion to Dismiss at p. 2. Specifically, Defendant argues that pursuant to Rule 1.130(a) all contracts or documents upon which an action may be brought shall be incorporated in or attached to the pleading. Id. Defendant further argues that if a complaint is based on a written instrument, the complaint does not state a cause of action until the instrument or an adequate portion is attached or incorporated in the complaint. Id. The Court notes that Defendant accurately recites that “[a]ll. . .contracts, accounts, or documents upon which action may be brought. . . shall be incorporated in or attached to the pleading.” Fla. R. Civ. P. 1.130(a). However, the Third District Court of Appeal has held that a plaintiff’s failure to attach a copy of the [insurance] policy to its complaint does not require dismissal where the complaint alleges that the policy is in the sole and exclusive possession of one or more of the defendants. Parkway General Hosp. v. Allstate Ins., Co., 393 So.2d 1171 (Fla. 3d DCA 1981). The Second District Court of Appeal has clarified that “where the instrument is not within the pleader’s possession or control. . .such failure to attach should not be fatal to the cause. . .and the pleader should be given an opportunity, by means of discovery proceedings, to establish the existence of the instrument.” Sachse v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972). In the instant case, Plaintiff alleged in the Complaint that “Plaintiff is not in possession of a true and accurate copy of the policy[;] however[,] it will be provided by Defendant during discovery as Defendant is in possession of the same.” Plaintiff’s Complaint ¶ 8. In light of Plaintiff’s allegations that the insurance policy is not in their possession but will be provided to them by the Defendant during discovery, this Court finds that Defendant’s first claim in support of its Motion to Dismiss is without merit.
Defendant’s second claim is that Plaintiff failed to attach or incorporate any documents to support its allegation that an agreement was reached between Plaintiff and the Assignor, whereby Plaintiff was to provide emergency water removal services for the Assignor and, in exchange, the Assignor agreed to assign her rights under the insurance policy to Plaintiff. Defendant’s Motion to Dismiss at p. 2-3. In support of Defendant’s argument, Defendant cites Rule 1.130(a) of the Florida Rules of Civil Procedure for the proposition that a complaint cannot stand without the essential terms of the agreement being incorporated or attached. Id. at p. 3. This Court disagrees with Defendant’s position that Plaintiff failed to attach any documents supporting the aforementioned assignment. As the Supreme Court has opined, all allegations in the complaint must be taken as true and all reasonable inferences drawn therefrom must be construed in favor of the non-moving party. Greene, 926 So. 2d at 1199. In the instance case, Plaintiff attached the Assignment, entitled Exhibit A, to the Complaint which provides that the Assignor was assigning “all” of her “insurance rights, benefits and proceeds” under the insurance policy in exchange for services rendered as a result of property damage. See Exhibit A. As all allegations in the complaint must be taken as true and all reasonable inferences drawn must be construed in favor of the non-moving party, this Court finds that the Complaint and attached supporting documents are sufficient to establish a prima facie case that there was an agreement between the parties. Therefore, this Court finds Defendant’s claim as to this issue is without merit.
Defendant’s third claim is that the Assignment is ineffective and invalid because the Assignment does not convey the terms of the agreement as alleged by Plaintiff in its Complaint. Specifically, Defendant argues that the Assignment contains a policy number different than that provided in the Complaint; that the Assignment improperly identifies the assignee as “repair facility, Veronica Timpson” and authorizes payment to the Assignor’s “repair facility, 2395 NW 38 Street” which is the Assignor’s alleged address; that the assignee identified in the Assignment, Restoration 1 of Broward is inconsistent with the assignee identified in the Complaint, namely, Restoration 1 of South Florida, LLC; and, finally, that the services described in the Complaint, emergency water removal services, is inconsistent with the description of services in Exhibit B which identifies the services provided as Fire/Smoke Cleanup. Defendant’s Motion to Dismiss at pp. 4-5. Defendant therefore contends that there was no meeting of the minds and as a result, the Assignment is unenforceable and, moreover, the Plaintiff lacks standing. The Defendant points out that where the Complaint and the attached exhibits are in contradiction with one another, the exhibit controls. K.R. Exchange Services, Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So. 3d 889, 894 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2317a]. Plaintiff, in its response to the Defendant’s Motion to Dismiss, concedes that there are inconsistencies in the Complaint, including the identification of the policy number, but argues that the inconsistencies are not fatal to their cause of action since there is no doubt as to the identity and intention of the parties.
As to the Defendant’s first argument that the Assignment is ineffective and invalid because the Assignment, attached as Exhibit A, and the Complaint contain contradictory policy numbers, this Court finds that this is a factual dispute that cannot be addressed at this procedural juncture. As discussed supra, the purpose of a motion to dismiss is to test the legal sufficiency of a complaint rather than to determine the underlying factual issues. Greene, 926 So. 2d at 1199. Even if this Court were to determine, pursuant to the applicable case law, that Exhibit A controls as a result of the inconsistencies between the Complaint and the Exhibit, it is a purely factual issue whether the policy number identified in Exhibit A, as compared to the Complaint, is accurate. Therefore, this argument is without merit. Similarly, Defendant’s other arguments made under the umbrella of their third claim consist of factual disputes surrounding the definition of terms and the parties’ intent. For instance, the Defendant points to the fact that the assignee is identified as Plaintiff in the Complaint yet in Exhibit A, in the field, it is written that direct payment of any benefits or proceeds are to be paid to “my repair facility, 2395 NW 38 ST” which Defendant claims is the assignor’s address. This Court takes notice that further down in Exhibit A, “my repair facility” is identified as “Restoration 1.” The inconsistency between what is identified as “my facility” in the two separate sections of the Assignment is a factual dispute to be decided later and is not grounds for dismissal at this time. The Defendant next argues that the assignee identified in the Complaint and in Exhibit A is also inconsistent. Specifically, the Complaint identifies the assignee as Restoration 1 of South Florida whereas Exhibit A identifies Restoration 1 of Broward as the entity which performed the repairs. This Court initially notes that Exhibit A contains both the name “Restoration 1” which does not denote whether it was Broward or South Florida, as well as “Restoration 1 of Broward.” This is an ambiguity which, again, is a factual dispute which cannot be decided at the motion to dismiss stage. Gables Insurance Recovery, Inc. v. Seminole Casualty Insurance Company, 10 So. 3d 1106, 1007 (Fla. 3d DCA 2010) [34 Fla. L. Weekly D672b] (noting that ambiguities as to the assignment are factual issues). Finally, as to the description of services provided being described as emergency water extraction in the Complaint as compared with Fire/Smoke Clean-up in Exhibit B, this Court finds that what services were actually provided is, again, a factual issue. The Court also notes that it is not readily apparent that these two descriptions are even contradictory with one another and any resolution as to whether they are or not is a matter of interpretation which is not appropriate for the Court to perform at this stage. As a result, Defendant’s third claim is without merit.
Defendant’s fourth, and final claim, is that Plaintiff did not obtain written consent from Defendant and, therefore, lacks standing to sue. Defendant’s Motion to Dismiss at p. 5. Defendant asserts that the Policy does not permit assignments without written consent of Defendant [insurer]. Id. In response, Plaintiff argues that non-assignment clauses are inapplicable to after-loss assignment of benefits. Gables Ins. Recovery, Inc., 10 So. 3d at 1106. This Court recognizes that the alleged date of loss listed in the Complaint is February 24, 2012 whereas the Assignment is dated March 27, 2012. Therefore, on the basis of the four corners of the Complaint, it appears that the Assignment in contention here is an after-loss assignment of benefits and, as such, Florida law would not require Plaintiff to obtain written consent to have a valid assignment.
Accordingly, for all the reasons stated above, Defendant’s Motion to Dismiss is DENIED.
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