25 Fla. L. Weekly Supp. 162a
Online Reference: FLWSUPP 2502MUMIInsurance — Homeowners — Standing — Motion for summary judgment arguing that company that provided emergency water removal services on homeowner’s property lacks standing to sue insurer because homeowner’s mortgage holder did not consent to assignment of benefits, as is required by policy, is denied — Policy provision that restricts post-loss assignment of benefits is contrary to Florida law
CARABEO CARPET CARE, INC., a/a/o Gulnara Muminova, Plaintiff, v. ST. JOHN’S INSURANCE COMPANY, INC., Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-CA-008733-O. April 20, 2017. Christi L. Underwood, Judge. Counsel: Paul T. Zeniewicz and Nicholas A. LaFountain, Malik Law, P.A., Maitland, for Plaintiff. Marybeth Cullinan, Bartlett, McDonough & Monaghan, LLP, Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT ST. JOHN’SINSURANCE COMPANY, INC.’S MOTIONFOR SUMMARY JUDGMENT
THIS MATTER comes before the Court on the “Defendant St. Johns Insurance Company, Inc.’s Motion for Summary Judgment,” filed on October 3, 2016, and heard on January 9, 2017. On January 4, 2017, the Plaintiff filed its “Plaintiff’s Response to Defendant’s Second Motion for Summary Judgment.” The Court, having considered the Motion, case law, arguments of counsel, and memoranda and supplemental filings from both parties, finds as follows:
On September 21, 2015, the Plaintiff filed a single count Complaint against the Defendant for breach of contract, alleging Gulnara Muminova suffered water damage to her home, which was covered by an insurance policy issued by Defendant. Plaintiff contends that Defendant failed to pay the claim as submitted by the Plaintiff, an assignee of Muminova, for emergency water removal services performed. The Defendant filed its answer and affirmative defenses on October 28, 2015. The Defendant filed the instant Motion on October 3, 2016, arguing that the Plaintiff lacks standing to bring suit because the assignment of benefits provided to the Plaintiff by Muminova was not signed by her mortgage holder, as required by the terms of the insurance policy. The policy contains the following provision:
Assignment of Benefits: 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 benefit or any instrument that transfers any post loss rights under the insurance contract without the prior written consent of all “insureds”, all additional insureds and all mortgagee(s) named in the policy.
A party is entitled to summary judgment when: (1) no genuine issue of material fact exists in the record; and (2) the party is entitled to judgment as a matter of law based upon the undisputed facts. Fla. R. Civ. P. 1.510(c); see, e.g., Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Carpineta v. Shields, 70 So. 2d 573, 574 (Fla. 1954); Rodriguez v. Saenz, 866 So. 2d 184, 186 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D456b] .
The law is clear that Florida has long favored the free assignability of post-loss insurance benefits: “Even when an insurance policy contains a provision barring assignment of the policy, an insured may assign a post-loss claim.” One Call Prop. Services Inc. v. Sec. First Ins. Co., 165 So. 3d 749, 753 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. Additionally, “post-loss insurance claims are freely assignable without the consent of the insurer.” Bioscience W. Inc. v. Gulfstream Prop. & Cas. Ins. Co., 185 So. 3d 638, 643 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D349a] (citing Sec. First Ins. Co. v. State, Office of Ins. Regulation, 177 So. 3d 627, 628 (Fla. 1st DCA 2015)[40 Fla. L. Weekly D1449a; 40 Fla. L. Weekly D2406a (on Motion for Rehearing)]).
Based on the foregoing, the Defendant is not entitled to judgment as a matter of law. Its policy provision requiring the consent of the insured’s mortgage lender imposes a restriction on the policy holder’s right to assign her post-loss insurance benefits, in contravention to Florida’s policy and the above-cited case law. The Court, therefore, is not persuaded by the Defendant’s argument and denies its motion for summary judgment.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is DENIED.
