22 Fla. L. Weekly Supp. 108a
Online Reference: FLWSUPP 2201DEVLInsurance — Property — Standing — Action by contractor that was assigned prospective insurance recovery of undetermined amount is dismissed
EMERGENCY SERVICES 24, INC., A/A/O THERESA DEVLIN, Plaintiff, v. FLORIDA PENINSULA INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 12-011304-00-42. November 19, 2013. Honorable John Carassas, Judge. Counsel: Scott Dornstein, Katzman, Garfinkel & Berger, Maitland, for Plaintiff. Michael S. Sperounes, Gruelle & Salmon, P.A., Tampa, for Defendant.
FINAL JUDGMENT OF DISMISSAL WITH PREJUDICEOF PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE having come before the Court on November 6, 2013, upon Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, and the Court having heard argument of counsel for the respective parties and considered the case law presented, and the Court being otherwise fully advised in its premises, it is hereby ORDERED AND ADJUDGED:
1. Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint is GRANTED WITH PREJUDICEbased upon the express terms of the insurance contract; case law in this jurisdiction, including the Order of Dismissal in NextGen Restoration, Inc. a/a/o Marsha Panton v. Citizens Property Insurance Corporation, Case. No. 11-9940 CI-11, (May 5, 2012) the Sixth Judicial Circuit, Pinellas County, Florida; the Orders of Dismissal in cases from adjacent jurisdictions including Hillsborough and Pasco Counties; Florida Statutes as more fully cited in Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint; the Amended Consent Order entered by the Department of Financial Services; and, the date the Assignment was executed.
2. Plaintiff’s Complaint was previously dismissed without prejudice, with this court granting Plaintiff leave to amend the Complaint to state a cause of action.
3. Plaintiff’s Amended Complaint contains a single additional allegation in a footnote, in which Plaintiff asserts that the Amended Consent Order entered by the Department of Financial Services, attached to Plaintiff’s Amended Complaint as Exhibit “C,” renders the assignment of benefits valid.
4. Other than referencing the Amended Consent Order, Plaintiff did not make any additional allegations, nor did Plaintiff present persuasive new arguments or case law at the hearing on Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint.
5. Plaintiff’s Amended Complaint fails to state a cause of action as the purported Assignment of Benefits attempts to assign prospective insurance proceeds whose amount has yet to be determined in violation of the subject policy and Florida law.
6. Moreover, the insuring contract between the Defendant and Theresa Devlin proscribes a non-delegable obligation to adjust the loss between the parties and establishing the amount of insurance proceeds due is the essence of “adjusting” an insurance claim. Thus, from the four corners of the Complaint it is evident that Plaintiff has violated section 626.854, Florida Statutes, which proscribes such conduct by contractors.
7. The Consent Order entered by the Department of Financial Services was amended only to clarify that the Department of Financial Services does not have authority to determine the validity of the assignment, as this is a function of the courts and not an administrative agency.
8. The Plaintiff shall take nothing by this suit and go hence without day.
9. The court retains jurisdiction to determine Defendant’s entitlement to, and amount of, attorney’s fees and costs.
