22 Fla. L. Weekly Supp. 126a
Online Reference: FLWSUPP 2201GATTInsurance — Property — Standing — Assignment — Where insurance policy contains non-assignment provision, assignment of benefits to water and mold mitigation company prior to claim being adjusted and any accrued benefits becoming due does not confer standing on company to file suit against insurer
BIO SCIENCE WEST, INC., A/A/O ELAINE GATTUS, Plaintiff, vs. GULFSTREAM PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 10th Judicial Circuit in and for Polk County. Case No. 53-2013CA-000847. Civil Section 11. July 29, 2014. Wayne M. Durden, Judge. Counsel: Michael L. Grossman, Cohen Battisti, Winter Park, for Plaintiff. Michael S. Sperounes, Groelle & Salmon, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the court on July 17, 2014, upon Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law. Michael L. Grossman, Esq., appeared for Plaintiff. Michael S. Sperounes, Esq., appeared for Defendant. The Court considered the Defendant’s Motion with incorporated Memorandum of Law, the affidavit of Richard Ashford in support of Defendant’s Motion for Summary Judgment, the Plaintiff’s Response to Defendant’s Motion for Summary Judgment, the Court file, and legal authorities and arguments submitted by counsel for the parties. The Court finds:
This action is brought by an assignee (Plaintiff Bio Science) of a property owner (Gattus) who made a claim for water and mold damage at a property owned by her. Gattus hired Plaintiff to make repairs and executed an assignment to Plaintiff of any benefits due under her policy of insurance with Defendant. Defendant had not yet adjusted the claim. Plaintiff remediated the damage to the Gattus property and then filed this lawsuit after Defendant denied insurance coverage related to the claim. Plaintiff asserts that the assignment executed by Gattus provides it standing to file this lawsuit. Plaintiff is not a party to the contract of insurance between Gattus and Defendant. The contract of insurance between Gattus and Defendant contains a non-assignment provision and a loss-payment provision.
Florida case law permits the assignment of accrued benefits which have become due despite a non-assignment provision in an insurance policy but neither the policy itself nor the parties’ rights and privileges may be assigned without consent of the insurer. See Section 627.422, Florida Statutes, “[a] policy may be assignable, or not assignable, as provided by its terms” and e.g., Lexington Ins. Co. v. Simkins Industries Inc., 704 So.2d 1384 (Fla. 1998) [23 Fla. L. Weekly S41a]. In this case the assignment occurred prior to the claim having been adjusted and any accrued benefit having become due. In this case the assignment improperly purports to transfer the right or privilege to adjust the claim to Plaintiff. Consequently, Plaintiff lacks standing to bring this lawsuit.
WHEREUPON it is ORDERED and ADJUDGED:
Defendant’s Motion for Summary Judgment is GRANTED with prejudice.
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