25 Fla. L. Weekly Supp. 574a
Online Reference: FLWSUPP 2506LGARInsurance — Homeowners — Water remediation — Standing — Motion to dismiss arguing that company that provided emergency water remediation service on homeowners’ property lacks standing to sue insurer because homeowner’s mortgage company did not consent to assignment, as is required by policy, is denied — Policy provision that restricts post-loss assignment of benefits is contrary to Florida law — No merit to argument that assignment is precluded by homestead provisions of Florida Constitution
BLUE STAR RESTORATION, INC, a/a/o Luis Garcia, Plaintiff, v. HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 16-11425, Division 52. June 29, 2017. Giuseppeina Miranda, Judge. Counsel: Jesse O’Hara, for Plaintiff.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come on for hearing on June 16, 2017, on Defendant’s Motion to Dismiss Plaintiff’s Complaint and the court and having reviewed the motion and applicable case law and having heard argument of counsel, and being otherwise fully advised in the premises, makes the following conclusions of law:
Defendant argues that Plaintiff’s complaint should be dismissed for two reasons.
1. As their first basis for dismissal, Defendant argues that the policy holder violated the terms of the policy by failing to properly execute an assignment of benefits in compliance with the post loss duties of the policy. Specifically, Defendant alleges that the policy was violated when the policy holder failed to obtain the written authorization of the mortgagee before assigning his rights under the policy to the Plaintiff.
The provisions of the policy at issue read as follows:
“SECTION I and II — CONDITIONS”
7. Assignment.
Assignment of this policy will not be valid unless we give our written consent.
19. Assignment of Claim Benefits
a. Any person or entity that effectuates repairs to property insured under this policy is not entitled to perform those repairs or receive compensation for services using an assignment of benefits or any instrument that transfers any post lost rights under the insurance contract with the prior written consent of all “insureds”, all additional insureds and all mortgagee(s) named in the policy.
This court adopts the analysis and conclusions of law cited in Graham’s Carpet Cleaning & Restoration, LLC a/a/o Hector and Marcy Calzadilla v. Asi Preferred Insurance Corp., 25 Fla. L. Weekly Supp 117a (Broward Cty. Ct., March 2, 2017, Nina Di Pietro, Judge). In that case, the court found as follows:
Florida law has long favored the free assignability of post-loss insurance benefits. Even when an insurance policy contains a provision barring assignment, an insured may assign a post-loss claim. One Call Property Services, Inc. v. Security First Insurance Company, 165 So.3d 749 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. Further, post-loss insurance claims are freely assignable without consent of the insurer, even in situations when the subject insurance policy contains a provision barring assignment without insurer consent. Bioscience West, Inc. v. Gulfstream Property and Casualty Insurance Company, 185 So.3d 638 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D349a].
Defendant argues that the Assignment of Claim Benefits provision is valid because it does not bar post-loss assignments or require insurer consent. However, Defendant’s policy’s provision requiring the consent of the insured’s mortgage company unquestionably imposes a restriction and/or limitation on a policyholder’s right to assign post-loss insurance benefits. In fact, Florida’s Office of Insurance Regulation (OIR) has specifically rejected a provision in another insurance provider’s proposed policy containing the exact same language as the policy in this case. When doing so, the OIR stated:
The forms contain language restricting the assignment of post-loss claim benefits under the policy, which is contrary to Florida law. See, e.g., Cont’l Cas. Co. v. Ryan Inc. E, 974 So.2d 368, 377 n.7 (Fla. 2008) [33 Fla. L. Weekly S59a]; One Call Property Servs. Inc. v. Security First Ins. Co., 165 So.3d 749, 753 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]; Accident Cleaners, Inc. v. Universal Ins. Co., No. 5D14-352, 2015 WL 1609973, at *2 (Fla. 5th DCA Apr. 10, 2015) [40 Fla. L. Weekly D862a]; Better Const., Inc. v. Nat’l Union Fire Ins. Co., 651 So.2d 141, 142 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D420a].
Office of Insurance Regulation, letter dated September 30, 2015 to Security First Insurance Company, ORI File Number FCP 15-19027.
Based on the foregoing, Court finds that Defendant’s policy impermissibly restricts post-loss assignments.
2. As their second basis for dismissal, Defendant alleges that Plaintiff improperly induced the policy holder to assign constitutionally protected homestead proceeds with an unsecured agreement. Article X, Section 4 of the Florida Constitution is designed to prevent forced-sale and seizure upon execution of a lien of homestead property. An assignment such as the one subject to these proceedings in no way impinges on the homestead provisions of the constitution. See Nextgen Restoration, Inc., a/a/o Rajasekhar Kuppachhi v. American Integrity Insurance Company of Florida, 25 Fla. L. Weekly Supp. 170a (Hillsborough Cty. Ct., November 7, 2016, Rex M. Barbas, Judge).
It is therefore, ORDERED AND ADJUDGED that Motion to Dismiss is DENIED. Defendant shall have 20 days from the date of this order to file a responsive pleading.
