24 Fla. L. Weekly Supp. 328a
Online Reference: FLWSUPP 2405ROTHInsurance — Homeowners — Water mitigation — Trial court erred in determining that homeowner was indispensable party to action by water mitigation company against insurer for unpaid balance of reduced claim where homeowner assigned post loss insurance benefits to company — Trial court erred in determining that appraisal provision of policy was validly and timely invoked where insurer invoked provision after suit was filed, after homeowner assigned benefits to water mitigation company, and after insurer acknowledged valid assignment by making partial payment to company — Trial court erred in determining that appraisal is binding where insurer improperly failed to include water mitigation company/assignee in appraisal process — Summary disposition reversed and remanded
RESTORATION 1 OF THE TREASURE COAST a/a/o MARY JANE ROTH, Appellant, v. FIDELITY FIRE PROPERTY & CASUALTY d/b/a FRONTLINE HOMEOWNERS INSURANCE COMPANY, Appellee. Circuit Court, 19th Judicial Circuit (Appellate) in and For Martin County. Case No. 14-AP-11. L.T. Case No. 13-SC-671. Decision filed April 26, 2016. Appeal from the County Court for Martin County; Darren Steele, Judge. Counsel: Susan Fox and Gary Proctor, Fox & Loquasto, P.A., Orlando, and Scott Millard, Cohen Battisti, Winter Park, for appellant. Daniel Lazaro and Elaine Walter, Gaebe, Mullen, Antonelli & DiMatteo, Coral Gables, for appellee.
(PER CURIAM.)ON MOTIONS FOR CLARIFICATION
We grant the parties’ motions for clarification, withdraw our prior opinion, and substitute this opinion in its place.
On April 1, 2013, Mary Jane Roth had a water event that caused damage to her home, which was insured by the Appellee (“Frontline”). Roth hired the Appellant to perform emergency water removal and repair services; in exchange, she assigned the insurance benefits to the Appellant. The Appellant submitted bills to Frontline for $4,698.90, and it claims that Frontline underpaid the bills by writing it a check for only $1,041.75. Therefore, the Appellant sued Frontline in small claims court for breach of contract.
At the pretrial conference, Frontline raised an ore tenus motion for summary disposition; the trial court denied the motion and set the case for trial. When the parties appeared for trial, Frontline argued a motion for reconsideration of the denial of the motion for summary disposition, and the trial court granted it based on the following grounds: 1) failure to join indispensable party — the homeowner/policy holder; 2) appraisal provision validly and timely invoked; and 3) appraisal under this fact pattern is binding.
Roth validly assigned her post loss insurance benefits to the Appellant; therefore, the trial court erred in determining that she was an indispensable party. See Bioscience West, Inc. a/a/o Elaine Gattus v. Gulfstream Property and Casualty Insurance Co., 185 So. 3d 638 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D349a]; One Call Property Services Inc. v. Security First Ins. Co., 165 So. 3d 749, 753 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. Frontline acknowledged the validity of the assignment by making payment to the Appellant directly. Further, the appraisal provision was not validly and timely invoked, as Frontline invoked it after the lawsuit was filed, after Roth assigned her benefits to the Appellant, and after Frontline acknowledged the valid assignment through payment to the Appellant. Frontline improperly failed to include the Appellant in the appraisal process, so it is not binding. This court previously addressed this issue in State Farm Florida Insurance Co. v. Restoration 1 of the Treasure Coast a/a/o Florence Goodison:
Appraisal is not a condition precedent to coverage; in fact, State Farm acknowledged the right to coverage when it sent Goodison/the Appellee a check on September 3, 2013. State Farm’s demand for appraisal specifically states that it is seeking to “resolve the issue of the amount of loss.” Since post-loss claims are assignable and State Farm is not disputing the assignment of Goodison’s claim to the Appellee, the Appellee is entitled to participate in the appraisal process.
14-AP-3 (Fla. 19th Cir. Ct. October 15, 2014) [23 Fla. L. Weekly Supp. 218b]. Based on the foregoing, the trial court erred in granting summary disposition in favor of Frontline.
Finally, we conditionally grant the Appellant’s motion for appellate attorney’s fees, if it ultimately prevails at the trial court.
Reversed and remanded. (SCHWAB, BELANGER, JJ. and BRYANT, Acting Circuit Judge, concur.)
