23 Fla. L. Weekly Supp. 526a
Online Reference: FLWSUPP 2306STOCInsurance — Homeowners — Standing — Assignment — Post-loss assignment of homeowners insurance benefits to company that performed water damage remediation services was valid — Assignment signed by only one of two homeowners is nonetheless valid where other homeowner was aware of and did not deny assignment — Appraisal is not post-loss obligation that must be completed only by insured; it is right that can be invoked by either insured or insurer and, once invoked, is condition precedent to bringing suit under policy — Assignee, standing in shoes of insured, is proper party to participate in appraisal and thereby attempt to meet condition precedent to suit — Trial court erred in preventing assignee from participating in appraisal and in entering summary judgment against assignee because condition precedent of appraisal had not been met by insured
UNITED RECONSTRUCTION GROUP, INC. a/a/o BOB STOCKMAN and PAM STOCKMAN, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 14-44-AP. L.T. Case No. 13-CC-2129. August 17, 2015. Appeal from the County Court for Seminole County, Honorable Jerri L. Collins, County Court Judge. Counsel: Keri Lynda Horvat, Mike A. Ortiz, Louis A. Gonzalez, and Susan W. Fox, for Appellants. Scot E. Samis, for Appellee.
(GALLUZZO, Judge.) The Appellant, United Reconstruction Group, Inc. (URG) seeks review of the trial court’s entry of summary judgment in favor of the Appellee, State Farm Florida Insurance Company (State Farm). This Court dispenses with oral argument pursuant to Fla. R. App. P. 9.320.
BACKGROUND
State Farm issued a homeowners insurance policy to Bob and Pam Stockman (Stockmans). On December 15, 2012, the insured premises sustained water damage and the Stockmans contacted URG to perform remediation services. Pam Stockman signed an assignment of benefits (AOB) granting URG the remediation benefits under the homeowner’s insurance policy, in exchange for the services provided. URG subsequently provided the needed services pursuant to the contract, and submitted a bill totaling $5371.92. State Farm made payment on the bill in the amount of $2603.13 and demanded appraisal with the named insured to resolve any remaining dispute as to the amount of loss.
On June 28, 2013, URG filed suit against State Farm for breach of contract to recover the balance of $2768.79 it claimed it was owed. State Farm subsequently filed a motion to stay proceedings pending appraisal with named insured, which was granted with a ninety (90) day timeline for completion. After the allotted time had passed and the named insured failed to participate in appraisal, State Farm filed a Motion to Lift Stay and for Final Summary Judgment.
At the hearing on the motion, State Farm argued that appraisal is a post-loss obligation that must be met by the named insured and is a condition precedent to bringing suit. State Farm argued that, because the condition precedent had not been met, URG lacked standing to bring suit and summary judgment for State Farm should be awarded. URG contended that appraisal is an assignable right under the policy such that URG, not the named insured, should have been permitted to participate. Had URG been permitted to participate in appraisal, the condition precedent to suit would have been met and summary judgment for State Farm would be improper.
The trial court held that appraisal was a post-loss duty and condition precedent to bringing suit, and because the condition had not been met by the named insured, URG lacked standing to bring suit. The trial court granted summary judgment for State Farm, and URG has sought review of the trial court’s order.ANALYSIS
A trial court’s ruling on a motion for summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
As an initial matter, this Court finds, as did the trial court, that the AOB was valid as a post-loss assignment. See Lexington Ins. Co. v. Simkins Indus., Inc., 704 So. 2d 1384, 1386 n. 3 (Fla. 1998) (“an insured may assign insurance proceeds to a third party after a loss, even without the consent of the insurer”); W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 77 So. 209 (Fla. 1917). Although only signed by Pam Stockman, and not Bob Stockman, this is sufficient for the assignment to be valid where the facts indicate that Mr. Stockman was aware of and did not deny the assignment. See generally LeRoy v. Reynolds, 141 Fla. 586 (1940).
Further, in accord with settled Florida law, this Court finds that a post-loss assignment does not relieve the named insured from fulfilling their obligations and duties under the policy; rather, the assignment merely transfer the rights to any post-loss claim. Shaw v. State Farm Fire & Cas. Co., 37 So. 3d 329, 332 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D1020a] disapproved of by Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a] on different grounds; Citizens Prop. Ins. Corp. v. Ifergane, 114 So. 3d 190, 197 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2205a]. The issue in this case then becomes whether the trial court properly ordered appraisal as between the insurer and the named insured only. In other words, is appraisal a post-loss duty under the policy in question, such that the named insured is required to perform and precluding the assignee of the insured from participation?1
Once invoked, it is generally accepted that appraisal is mandatory. See First Protective Ins. Co. v. Schneider Family P’ship, 104 So. 3d 1115, 1118 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D2631c]; United Cmty. Ins. Co. v. Lewis, 642 So. 2d 59, 60 (Fla. 3d DCA 1994). Furthermore, “appraisal provisions are deemed to be conditions precedent to recovery under the insurance policies.” Preferred Mutual Insurance Co. v. Martinez, 643 So. 2d 1101, 1102-03 (Fla. 3d DCA 1994). However, in U.S. Fidelity & Guaranty Co. v. Romay, 744 So.2d 467, 468 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1963a] (en banc), the Third District Court of Appeals held that “the insured must meet all of the policy’s post-loss obligations before appraisal may be compelled.” This language would seem to indicate that, although a condition precedent to suit, appraisal is not itself a post-loss obligation.
State farm, however, contends that appraisal is a duty and that the policy language specifically requires adjustment with the named insured.2 The relevant policy language states:
SECTION I — CONDITIONS
. . .
2. Your Duties After Loss. . . .
. . .
4. Appraisal. If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, disinterested appraiser. . . .
. . .
6. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions.
. . .
8. Loss Payment. 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 agreement with you; or
b. 60 days after we receive your proof of loss and:
. . .
(2) there is a filing of an appraisal award with us.
. . .
SECTION I AND SECTION II — CONDITIONS
. . .
7. Assignment. Assignment of this policy shall not be valid unless we give our written consent.
State Farm argues that the language under “Loss Payment” requires that adjustment of losses occur with “you,” defined in the policy as the “named insured,” and thus adjustment of losses must be done only with the named insured.
The Fourth District Court of Appeals recently addressed a closely related issue in One Call Property Services, Inc. a/a/o William Hughes v. Security First Insurance Co., 165 So. 3d 749 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. In that case, the insurer argued that an assignee had no cause of action where there was a policy with anti-assignment and loss payment provisions almost identical to the provisions in the case at hand. Id. The Court found that the provisions did not preclude assignment of a post-loss claim, even where payment had not yet become due. Id. at 754. The Court held that “[a] chose in action arising out of a contract is assignable and may be sued upon and recovered by the assignee in his own name and right.” Id. at 752-53 (citing Spears v. W. Coast Builders’ Supply Co., 101 Fla. 980, 983 (1931))(internal quotations omitted). The Court went on to note that “[t]he loss payment clause merely addresses the timing of the payment.” Id. at 754.
In addition, the Fourth District Court held that the assignment in that case did not attempt to assign a “duty to adjust” from the insured to a third party. Id. at 755. Although the policy language stated that “[w]e will adjust all losses with you,” thus contemplating the insured’s participation in the adjustment process, the Court found that
[this] does not impose a duty on the insured to adjust the loss. In fact, a “duty to adjust” is not among the insured’s duties in the section of the policy listing the insured’s Duties After Loss.
An insured is not an “adjuster” and does not “adjust” losses. . . . An insured does not determine the amount the insurer will pay to cover the loss, nor does an insured fit within any commonly recognized definition of “adjuster.”
Id. (emphasis in the original).
Although not addressing the exact issue of appraisal, this Court finds the reasoning of the Fourth District Court to be instructive on the issue at hand. Based on One Call and the almost identical language of the policy and State Farm’s arguments in this case, this Court finds that appraisal is not a post-loss obligation or duty that must be completed only by the named insured. Rather, it is a right that can be invoked by either the insurer or the insured should there be a dispute as to the amount owed. Once invoked, appraisal is a condition precedent to bringing suit under the policy, but this does not transform the right into a post-loss duty such that only the named insured must perform.
Because the assignee steps into the shoes of the assignor, URG, as the assignee, is a proper party to participate in appraisal, and the trial court erred in ordering otherwise. Because URG should have been permitted to participate in the appraisal process and thereby attempt to meet the condition precedent to bringing suit, the order of the trial court granting summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
Attorney’s Fees
Under the Assignment of Benefits and based on the analysis above, Appellant did acquire rights under § 627.428, Fla. Stat. Therefore, Appellant’s Motion for Appellate Attorney’s Fees is granted conditioned on the trial court determining that Appellant is the prevailing party and, if so, to set the amount of attorney’s fees to be awarded for this appellate case.
REVERESED and REMANDED.
__________________
1This Court does not address the conflicting public policy arguments, as they are lacking in evidence on the record. The Court also finds no merit in URG’s argument that State Farm’s demand for appraisal was merely conditional and thus not a proper demand.
2State Farm also relies on Shaw and Ifergane, supra, to support its argument that appraisal is a post-loss obligation that must be met by the named insured. However, these cases involve examinations under oath (EUOs), which are explicitly listed in the policy under the insured’s “Duties After Loss,” and which this Court finds to be distinct from appraisal.
