23 Fla. L. Weekly Supp. 337a
Online Reference: FLWSUPP 2304KIDWInsurance — Property — Standing — Assignment — Assignment of post-loss property insurance benefits without insurer’s consent was valid despite presence of non-assignment clause
THE KIDWELL GROUP, LLC d/b/a AIR QUALITY ASSESSORS OF FLORIDA, as assignee of NANCY HEROUX, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2015-SC-366. August 5, 2015. Honorable Robert Wheeler, Judge. Counsel: Daniel Gutierrez and Patrick Zurita, Daniel Gutierrez, P.A., Orlando, for Plaintiff. Bradley Little, Cole, Scott & Kissane, P.A., Jacksonville, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORPARTIAL SUMMARY JUDGMENT AND GRANTINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENTAS TO DEFENDANT’S AFFIRMATIVE DEFENSES
This matter having come before the Court on July 27, 2015 upon Defendant’s Motion for Partial Summary Judgment and Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses, or, in the Alternative, Motion for Summary Judgment on Defendant’s Affirmative Defenses, and having heard the argument of counsel and being duly advised in the premise, it is hereby ORDERED and ADJUDGED:
1. On September 11, 2014, the Insured, Nancy Heroux, suffered a water loss at her property. Defendant, Citizens Property Insurance Corporation, issued a policy of insurance to the Insured that provided coverage for the property.
2. Plaintiff, Air Quality Assessors of Florida, performed moisture evaluations and testing at the property related to the covered loss. In consideration for the services rendered, the Insured executed a post-loss assignment of benefits in favor of Air Quality Assessors of Florida.
3. Defendant failed to acknowledge the assignment of benefits at issue and failed to reimburse Plaintiff for the services rendered.
4. On or about February 24, 2015, Plaintiff filed this action to recover the payment for the unpaid benefits at issue.
5. On March 23, 2015, Defendant filed its Answer and Affirmative Defenses, stating “Citizens’ insurance policy complies with Florida statutes and contains an assignment condition that requires all assignment agreements to be approved by Citizens in writing before the assignment can be valid.”
6. Additionally, Defendant asserted two Affirmative Defenses. The first stating, “The assignment by the Insured to Plaintiff was not approved by Citizens. Absent Citizen’s consent, the assignment is not valid or enforceable against Citizens.” The second Affirmative Defense stated, “Because there has been no valid assignment, Plaintiff lacks standing and cannot pursue this or any claim for breach of the policy.”
7. The policy at issue states in relevant part:
“Assignment of this policy will not be valid unless we give our written consent.”
8. On May 12, 2015, Defendant filed its Motion for Partial Summary Judgment, requesting the Court to determine the assignment of benefits at issue was unambiguous as a matter of law, and that the assignment assigned the entire insurance contract to the Plaintiff.
9. On May 21, 2015, Plaintiff filed its Motion to Strike Defendant’s Affirmative Defenses, or in the Alternative, Motion for Summary Judgment on Defendant’s Affirmative Defenses. Plaintiff’s Motion stated that the assignment of benefits created a valid assignment of post-loss insurance benefits and did not constitute an assignment of the entire policy.
10. “Under Florida law, an insured may assign his right to benefits under a contract of insurance.” Schuster v. Blue Cross & Blue Shield of Fla., 843 So. 2d 909, 911-912 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]. “Post-loss insurance claims are freely assignable without the consent of the insurer.” Citizens Prop. Ins. Corp. v. Ifergane, 114 So. 3d 190, 195 (Fla. 3rd DCA 2012) [37 Fla. L. Weekly D2205a]. This is true despite the presence of an anti-assignment clause. See Cont’l Cas. Co. v. Ryan Inc. Eastern, 974 So. 2d 368, 377 n.7 (Fla. 2008) [33 Fla. L. Weekly S59a] (finding “ ‘it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.’ ”).
11. The validity of post-loss assignment of benefits has been reaffirmed by a majority of Florida’s District Courts of Appeal. See Accident Cleaners, Inc. v. Universal Ins. Co., No. 5D14-352 Fla. App. LEXIS 5199 (Fla. 5th DCA April 10, 2015) [40 Fla. L. Weekly D862a]; One Call Prop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. Dist. Ct. App. 2015) (4th DCA May 20, 2015) [40 Fla. L. Weekly D1196a]; United Water Restoration Group, Inc., a/a/o Oran Walker v. State Farm Florida Insurance Company, No. 1D14-3797, 2015 Fla. App. LEXIS 10403 (1st DCA July 8, 2015) [40 Fla. L. Weekly D1569a].
12. As stated in One Call Prop. Servs.,
“Even when an insurance policy contains a provision barring assignment of the policy, an insured may assign a post-loss claim. See W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 224, 77 So. 209, 210-11 (1917) (“The policy was assigned after loss, and 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.”); Lexington Ins. Co. v. Simkins Indus., Inc., 704 So. 2d 1384, 1386 n.3 (Fla. 1998) [23 Fla. L. Weekly S41a] (“[The insurer] concedes that an insured may assign insurance proceeds to a third party after a loss, even without the consent of the insurer.”); Accident Cleaners, Inc. v. Universal Ins. Co., 2015 Fla. App. LEXIS 5199, 2015 WL 1609973, *2 (Fla. 5th DCA Apr. 10, 2015) (“[The insurer’s] argument ignores that the right to recover is freely assignable after loss and that an assignee has a common-law right to sue on a breach of contract claim. Dating back to 1917, the Florida Supreme Court recognized that provisions in insurance contracts requiring consent to assignment of the policy do not apply to assignment after loss.”); Citizens Prop. Ins. Corp. v. Ifergane, 114 So. 3d 190, 195 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2205a] (“Post-loss insurance claims are freely assignable without the consent of the insurer.”); Better Constr., Inc. v. Nat’l Union Fire Ins. Co., 651 So. 2d 141, 142 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D420a] (“[A] provision against assignment of an insurance policy does not bar an insured’s assignment of an after-loss claim.”); Gisela Invs., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984) (“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.”); see also NextGen Restor., Inc. v. Citizens Prop. Ins. Corp., 126 So. 3d 1255, 1256-57 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2386a] (stating in dicta: “[The anti-assignment clause] does not appear to prevent an assignment of benefits or proceeds owing by virtue of a claim arising under the policy. We do not reach the validity of this specific assignment of insurance benefits, but we note that other cases seem to permit assignees to bring similar actions.”). One Call Prop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. Dist. Ct. App. 2015) [40 Fla. L. Weekly D1196a]
13. In the case at hand, Defendant’s consent was not required for the Insured to make an assignment of post-loss benefits.
14. Plaintiff’s assignment does not assign the entire insurance contract to Plaintiff.
15. Plaintiff has standing to bring this action by virtue of a valid assignment of post-loss benefits.
16. For these reasons, Defendant’s Motion for Partial Summary Judgment is DENIED. Plaintiff’s Motion for Summary Judgment as to Defendant’s First Affirmative Defense is GRANTED. Plaintiff’s Motion for Summary Judgment as to Defendant’s Second Affirmative Defense is GRANTED.
