22 Fla. L. Weekly Supp. 614a
Online Reference: FLWSUPP 2205ELRRInsurance — Property — Standing — Assignment — Company that is assignee of property owner through post-loss assignment has standing to sue insurer for restoration services rendered
ELR RESTORATION INC., Plaintiff, vs. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-CC-16779-O. December 10, 2014. A. James Craner, Judge. Counsel: Dave T. Sooklal, Anthony-Smith Law, PA, Orlando, for Plaintiff. Peter Vilmos, Orlando, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
This matter having come before the Court on December 4, 2014 for Defendant’s Motion for Summary Judgment and the Court having reviewed the Court file and being otherwise duly advised, the Court hereby:
ORDERS AND ADJUDGES:
FACTS
1). The Plaintiff, ELR Restoration Services, LLM, (ELR) a/a/ o Ramonita Hernandez, (Hernandez), ELR performed restoration work for Hernandez. Hernandez signed a document entitled:Assignment of Insurance Benefits, purportedly an assignment, prior to services.
2). Relevant language of the assignment in the case sub judice is as follows:
I hereby assign any and all insurance rights, benefits, and proceeds under the above referenced policy to my repair facility ELR Restoration, Inc. I hereby authorize direct payment of any benefits or proceeds to my repair facility EKR Restoration, Inc., as consideration for any repairs made by ELR Restoration, Inc. I hereby direct my insurance carrier State Farm Florida Insurance Company to release any and all information requested by my repair facility, ELR Restoration, Inc, its representative, or its Attorney for the direct purpose of obtaining actual benefits to be paid by my insurance carrier to my repair facility for services rendered or to be rendered for my appropriate property damage. In this regard, I waive my privacy rights.
3). ELR then made a claim to the defendant herein, State Farm Florida Insurance Company (State Farm) for services rendered. State Farm denied the claim.
4). State Farm denies ELR has standing to sue.
5). Both sides provided the Court with case law regarding assignments.
6). State Farm alleges the issue of the validity of the assignment is a legal issue subject to a summary judgment.
7). State Farm acknowledges ELR is entitled to the benefits via the assignments. State Farm denies, however, that the assignment confers on ELR all rights therein, including the right to sue State Farm.
LAW
8). A motion for summary judgment will be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Petruska vs. Smartparks-Silver Springs, Inc. 914 So.2d 502 (5th DCA 2005) [30 Fla. L. Weekly D2614a]. The moving party must show conclusively the absence of any genuine issue of material fact.
9). If the slightest doubt exists as to the existence of a genuine issue of material fact, summary judgment is not proper. If evidence raises any issue of a conflicting material fact, or the material fact permits a different reasonable inference, the motion should be denied. Gast vs. Mak Enterprises of Gainesville, 944 So.2d 1119 (5th DCA 2006) [31 Fla. L. Weekly D2996b].
10). Pursuant to Shaw vs. State Farm Fire and Casualty Company, 37 So.3d 329 (5th DCA 2010) [34 Fla. L. Weekly D2189a], the assignment confers a limited right to payment on the assignee, while the assignor still has the duty of performance of the conditions.
11). In Price vs. RLI Insurance Co., 914 So.2d 1010 (5th DCA 2005) [30 Fla. L. Weekly D2536a], the Fifth District Court of Appeal held that an assignment is a transfer of all the interests and rights to the thing assigned. Likewise, the assignment vests in the assignee the right to enforce the contract. Similarly, the original party to the contract loses its rights to enforce the contract once an assignment is entered into. Price, supra @ 1013, 1014, citing Lauren Kyle Holdings, Inc. vs. Heath-Peterson Const. Corp. 864 So.2d 55 (5th DCA 2003) [28 Fla. L. Weekly D2865b].
12). Assignments post-loss are not affected by a ‘no assignment’ clause in an insurance contract. Better Construction, Inc. vs. National Union Fire Insurance Company of Pittsburgh, 651 So.2d 141 (3rd DCA 1995) [20 Fla. L. Weekly D420a].
FINDINGS
13). The assignment herein conferred on ELR all interests and rights held by the assignor, Hernandez. Said another way, ELR stands in the shoes of Hernandez and may enforce the contract against the original obligor in its own name. See: Price supra.
As such, ELR has standing to sue State Farm for services rendered. Material issues of fact exist; the motion for summaryjudgment is therefore DENIED.
