22 Fla. L. Weekly Supp. 1115a
Online Reference: FLWSUPP 2210TAYLInsurance — Homeowners — Standing — Assignment — Insured was not required to complete contractually required claim adjustment prior to assigning benefits or prior to assignee filing suit — Anti-assignment clause and loss payment provision do not prevent post-lost assignment of benefits
PHOENIX DRYOUT AND RECOVERY CORP., a/a/o HERBERT DANIEL TAYLOR, Appellant, vs. STATE FARM FLORIDA INSURANCE CO., Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Osceola County. Case No. 2014-AP-25. RILEY HOMES, INC. d/b/a RILEY CORP., a/a/o HERBERT DANIEL TAYLOR, Appellant, vs. STATE FARM FLORIDA INSURANCE CO., Appellee. Case No. 2014-AP-26. June 5, 2015. Appeal of Osceola County Court Order on Defendant’s Motion to Dismiss, Stefania Jancewicz, County Judge. Counsel: Susan W. Fox, Fox & Loquasto, P.A., Orlando; Isabel M. Arias, Cohen Battisti & Grossman, Winter Park; and Gray R. Proctor, Law Office of Gray Proctor, Orlando, for Appellant. Scot E. Samis, Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg; and Aboubakr Maaroufi, Mimi L. Smith & Assoc., Orlando, for Appellee.
(Before MARQUES, CARSTEN, and JORDAN, J.J.)
(PER CURIAM.)ORDER ON APPEAL
Before the Court is an appeal of a County Court’s Order on Defendant’s Motion to Dismiss. This Court has jurisdiction under Article V Section 5(b) of the Florida Constitution. We dispense with oral argument pursuant to Fla. R. App. P. 9.320.
The facts are uncontested. On March 7, 2013, Herbert Daniel Taylor’s home experienced water damage. He hired two companies to repair the damage, Phoenix Dryout and Recovery Corp (Appellant in 2014-AP-25) and Riley Homes Inc., (Appellant in 2014-AP-26). Taylor executed an assignment of benefits to both Appellants. On the date of damage, Taylor’s home was insured by State Farm Florida Insurance Co. (Appellee). Appellants submitted claims to Appellee. Appellee denied coverage for the claims. Appellants filed separate actions against Appellee. Appellee moved to dismiss the suits arguing that Appellants lacked standing to bring the action as the assignment was invalid. The trial court granted Appellee’s Motion to Dismiss finding that Appellants lacked standing to bring the lawsuit. This appeal followed.
Appellants and Appellee agree that even with an anti-assignment clause in the insurance contract, the insured has a right to assign post-lost benefits. The dispute between the parties comes down to two issues: whether or not the insured must fully adjust the claim prior to the assignment and whether the insured must adjust the claim prior to filing suit. The loss payment provision of the insurance contract states “we will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable: a. 20 days after we receive your proof of loss and reach an agreement with you; or b. 60 days after we receive your proof of loss and: (1) there is an entry of a final judgment; or (2) there is a filing of an appraisal award with us.” (R. 80).
Appellants argue that Shaw v. State Farm Fire and Casualty Co., 37 So.3d 329 (Fla. 5th DCA 2010) [34 Fla. L. Weekly D2189a] controls. In Shaw, the Fifth District Court of Appeal stated, “the assignment of a contract right does not entail the transfer of any duty to the assignee, unless the assignee assents to assume the duty. . . assignment of a right to payment under a contract does not eliminate the duty of compliance with contract conditions, but a third-party assignee is not liable for performance of any duty under a contract, unless he was a party to the agreement or has become a party by subsequent agreement.” Shaw at 332. Furthermore, the Court stated “if the assignor is entitled to be paid, the assignee is entitled to be paid, but if the assignor is not entitled to be paid because of some failure of performance on the part of the assignor, then the assignee is not entitled to be paid either.” Id. at 333. Finally, “until the sums are due and owing [the assignee] has no right to claim them from State Farm. By the same token, however, once the insured has performed its obligations under the policy, including, if demanded, submission to an EUO, the sums are due and owner and there are no more conditions to fulfill.” Id. at 336.
The Shaw decision unequivocally states that the insured is required to fulfill contractual obligations outlined in an insurance contract before the assignee can receive payment. However, there is nothing in Shaw that prevents the assignee from filing suit against the insurance company prior to the insured completing these contractual obligations. There are many cases where the lawsuit is filed prior to the insured completing the conditions precedent, especially in a situation where the insurance company denied coverage. While the failure of the insured to complete conditions precedent, like the appraisal process, may prevent the assignee from ultimate recovery it does not stop the assignee from bringing the law suit. Indeed, the Fifth District Court of Appeal ruled as recently as April 10, 2015, that an assignee has a common-law right to sue on a breach of contract to collect post lost benefits. Accident Cleaners, Inc., v. Universal Insurance Company, 5D14-352 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D862a]. The Fourth District Court of Appeal stated the trial court erred “in finding that the anti-assignment clause and the loss payment provisions precluded the assignment.” ASAP Restoration and Construction, Inc. v. Tower Hill Signature Insurance Co., 4D13-4174 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1201a]. While the policy language is not included in the ASAP Restoration decision, the implication is clear, that anti-assignment clauses and loss payment provisions will not prevent a post lost assignment of benefits. The assignment of benefits creates standing for Appellants to bring the underlying causes of action. It is therefore,
ORDERED and ADJUDGED that the County Court’s Order on Defendant’s Motion to Dismiss is REVERSED and this action is remanded to the County Court. It is therefore,
FURTHER ORDERED and ADJUDGED that Appellant’s Motion for Attorney’s Fees filed on December 1, 2014 is GRANTED conditioned upon the ultimate entry of a judgment in the Appellants’ favor after remand. (CARSTEN and JORDAN, J.J., Concur.)
* * *
