22 Fla. L. Weekly Supp. 951b
Online Reference: FLWSUPP 2208FREUInsurance — Property — Standing — Assignment — Although insurance policy contains anti-assignment provision, post-loss assignment of benefits to water mitigation company is valid — Date of breach was date insurer refused to make payments due under policy, not date when consequential damages resulted or become ascertained
RESTORATION 1 OF SOUTH FLORIDA, LLC (AAO Serge Freund), a Florida Limited Liability Company, Plaintiff, vs. CITIZENS PROPERTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-1038 CC 05. February 27, 2015. Teretha Lundy Thomas, Judge. Counsel: John A. Salcedo, The Mineo Salcedo Law Firm, P.A., Davie, for Plaintiff. Hugh Connolly, Stone, Glass & Connolly, LLP, Palmetto Bay, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND GRANTING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on October 29, 2014 upon the Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment the Court having heard argument of Counsel, considered legal authority, reviewed the file and being otherwise duly advised in the premises, finds as follows:
BACKGROUND
The Defendant’s insured suffered a water loss to the insured property on May 20, 2013, retained Plaintiff to perform emergency mitigation services, and executed an Assignment of Benefits (“AOB”) in favor of Plaintiff on May 20, 2013. Defendant denied the claim on June 6, 2013 and failed to pay Plaintiff’s invoice in the amount of $7,699.21.
On or about December 31, 2013, Plaintiff filed the instant lawsuit to recover the amount of its invoice plus interest plus statutory fees and costs. On September 24, 2014, Defendant filed an Amended Answer and Affirmative Defenses two affirmative defenses asserting Plaintiff lacked standing to bring suit.
On September 29, 2014 Defendant served its Motion for Summary Judgment, arguing that because defendant did not provide written consent to the assignment of benefits, and the policy’s loss payment provision requires that only the insured can adjust the loss with insurer, that no benefits were due and owing at the time of the assignment of benefits; and it follows, if no benefits are due then there is nothing for the insured to assign and Plaintiff lacks standing to bring suit.Legal Analysis
Florida Statute section 627.422 provides that: “A policy may be assignable or not assignable, as provided by its terms.” Thus, this court must first look to the subject insurance policy. Here, the insurance policy contains the following provision:Assignment of this policy will not be validunless we give our written consent.
The Florida Supreme Court first recognized that post-loss assignments of insurance proceeds are valid, regardless of any anti-assignment clause in the policy, in West Florida Grocery v. Teutonia Fire Ins. Co., 77 So. 209, 211 (Fla. 1917), stating: “It is a well-settled rule that the provision in a policy relative to the consent of the insurer to the transfer of an interest therein does not apply to an assignment after loss.” Id. The holding in West Florida Grocery was re-affirmed in Continental Casualty Co. v. Ryan Inc. Eastern, 974 So. 2d 368, 378 (Fla. 2008) [33 Fla. L. Weekly S59a]. The Court stated, “it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.” (quoting W. Fla. Groc., 77 So. At 210-11, and Better Constr., Inc. v. Nat’l Union Fire Ins. Co., 651 So.2d 141 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D420a]).
In Gisela, the court held that “[a] provision in a policy of insurance which prohibits assignment thereof except with consent of the insurer does not apply to prevent assignment of the claim or interest in the insurance money then due, after loss.” (citing W. Fla. Groc.). Addressing the same issue again in Lexington Ins. Co. v. Simkins Indus., Inc., 704 So. 2d 1384, 1386 n. 3 (Fla. 1998) [23 Fla. L. Weekly S41a], the Florida Supreme Court recognized that an insured may assign proceeds of a policy to a third party after loss “even without the consent of the insurer.”
This Circuit, sitting in its appellate capacity, has follwed this very clearly established rule of law. Graham’s Carpet Cleaning & Restoration a/a/o Neilda Childers v. Royal Palm Ins. Co., Case No. 10-6858 CC 05 (Fla. 11th Cir. Ct. June 18, 2013 [20 Fla. L. Weekly Supp. 865a] (App. 1). “In the case at bar, the assignment occurred after the Insured incurred a property loss, as such, the assignment is valid. . . The assignment was for ‘any and all insurance rights, benefits, and proceeds under the above referenced policy. . .’ Therefore, the assignment was a full assignment and not a partial assignment.” Id.
Based on the foregoing substantive case law, this Court finds that Plaintiff filed this action based on a valid assignment. Based on the language of the assignment of benefits, this Court finds that it is not an assignment of the entire policy.
This Court further finds that the date of the breach is the date when the insurer refuses to make payments later determined to be due under the policy, not when the date “when consequential damages result or become ascertained.” Med. Jet, S.A. v. Signature Flight Support-Palm Beach, Inc., 941 So. 2d 576 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2904a] (quoting Fradley v. Cty. of Dade, 187 So. 2d 48, 49 (Fla. 3d DCA 1966)).
Because established case law allows the assignee of insurance benefits to sue an insurer, and this has been the law in Florida for decades, this Court finds that Plaintiff has a sufficient stake in this justiciable controversy to obtain judicial resolution.
For the reasons expressed above, Defendant’s Motion for Final Summary Judgment is DENIED. Furthermore, this Court grants Final Summary Judgment in favor of the Plaintiff.
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