25 Fla. L. Weekly Supp. 555a
Online Reference: FLWSUPP 2506VALDInsurance — Homeowners — Water remediation — Where insurer had notice of valid assignment to plaintiff water remediation company prior to issuance of payment to insured, insurer cannot rely on payment to insured to discharge debt owed to plaintiff
EMERGENCY MOLD AND WATER REMEDIATION, LLC., a/a/o Elio Valdes, Plaintiff, v. CITIZENS PROPERTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2015-8522 CC 25. March 23, 2017. Patricia Marino Pedraza, Judge. Counsel: Mark B. Hart and Carlos Jimenez, Jimenez & Hart, LLC; Gabriel D. Mazzitelli, Miami, for Plaintiff. Matthrew R. Naparstek and Kara Rockenbach, Methe & Rockenbach, P.A., West Palm Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before this Court on March 8, 2017 upon Plaintiff’s, Emergency Mold & Water Remediation, LLC a/a/o Elio Valdes (hereinafter “EMWR”), Motion for Summary Judgment and Defendant’s, Citizens Property Insurance Corporation (hereinafter “CPIC”) Motion for Summary Judgment. The Court having heard argument of counsel and reviewed the evidence and motions filed, and being otherwise duly advised on the premises, it is hereupon,
ORDERED AND ADJUDGED:
(1) EMWR’s Motion for Summary Judgment is GRANTED; and
(2) CPIC’s Amended Motion for Summary Judgment is DENIED.UNDISPUTED FACTS
This is a case regarding water and mold remediation services EMWR performed on behalf of Elio Valdes in September 2014 at his property located at 8245 NW 170th Street, Hialeah, FL 33015. CPIC insures Elio Valdez’s property. The services were performed to remediate water and mold damage considered in claim number 548288. EMWR obtained a valid assignment of Elio Valdes’ right to be paid by CPIC for the services rendered. Both parties acknowledge the authenticity and validity of the assignment. CPIC also admits receiving notice of the assignment on September 24, 2014. The services performed by EMWR in this invoice include a water dry out, cleaning and mold remediation performed from September 13, 2014 to September 15, 2014. The balance due on the invoice is $2,537.83.
Prior to the assignment of benefits and the services performed by EMWR, CPIC issued a payment on August 28, 2013 to Alonso & Perez, LLP, representing the assignor, which included an amount for water remediation combined with amounts for property damage unrelated to water remediation.
On December 17, 2014, after receiving notice of the assignment, CPIC sent a letter to Marin, Eljaiek & Lopez, PL, enclosing a check in the amount of $2,006.37 payable to “ELIO VALDES and Marin, Eljaiek & Lopez, PL and Alonso & Perez, LLP and PEDRO G GOMEZ and Emergency Mold and Water Remediation LLC and FLAGSTAR BANK FSB ISAOA.” See CPIC’s Amended Motion for Summary Judgment, Ex. A, 6. Thereafter, the check was returned are re-issued after removing the mortgagee based upon a satisfaction of mortgage. Id., Ex. A, Fisher Am. Aff. ¶ 9.
CPIC did not respond to any correspondence send by EMWR. See Notice of Filing — Lopez Aff. ¶ 6. EMWR never received any payment for the services rendered. Id at ¶ 7. On July 9, 2015, EMWR filed suit to recover insurance proceeds due for services rendered pursuant to the assignment and invoice.
PRE-SUIT DEMAND LETTER
On April 5, 2015, well before filing suit, EMWR sent CPIC correspondence informing CPIC that EMWR had not been paid for covered services rendered. As such, CPIC was put on notice that EMWR had not received any payment for the invoice sent to CPIC. CPIC failed to inform EMWR that some of the money owed to EMWR was instead paid to the assignor. In fact, CPIC failed to respond in any way to EMWR’s letter informing CPIC that EMWR had not been paid. As a result of CPIC’s failure to address this demand letter, EMWR was forced to file suit to recover insurance proceeds due and payable for services rendered.
FINDINGS OF FACTS AND ANALYSIS
In analyzing the various issues presented by EMWR and CPIC, this Court finds that the following legal issues can be determined as a matter of law based on controlling precedent:
i. After an insurer receives notice of an assignment, does the insurer’s payment of insurance proceeds to its named insured and the assignor act as a defense to the assignee’s claim of breach of contract?
ii. Has CPIC provided any competent evidence to create a triable issue as to any affirmative defense pled in its answer and affirmative defenses?
AFTER AN INSURER RECEIVES NOTICE OF ANASSIGNMENT OF BENEFITS, THE INSURER MUSTPAY THE ASSIGNED BENEFITS TO THE ASSIGNEE
This issue was addressed in Indoor Environmental Services, Inc. a/a/o Rosanne Garcia v. Tower Hill Preferred Ins. Co., Case No. 15-22035 CA 01 (23 Fla. L. Weekly Supp. 600a). In Indoor, the insurer sent payment directly to the assignor after receiving notice of the assignment. The Court in Indoor noted that the 11th Judicial Circuit, acting in its appellate capacity had issued a binding opinion that compelled it to rule in favor of the assignee. In Graham’s Carpet Cleaning & Restoration a/a/o Neilda Childers v. Royal Palm Ins. Co., the 11th Judicial Circuit’s Appellate Division considered an insurer’s argument that its obligation to a water remediation company, as assignee of the named insured, was satisfied upon payment to the named insured for covered damages. Id. at 12-091 AP (11th Jud. Cir. 2013) [20 Fla. L. Weekly Supp. 865a]. The water remediation company filed a cross motion for summary judgment arguing that the insurer’s election to pay the named insured after notice of the assignment constituted a gratuitous payment and did not discharge the debt owed to the water remediation company. Id. The trial court, despite acknowledging the validity of the assignment and the insurer’s receipt of the same, granted summary judgment in favor of the insurer. Id.
On appeal, the Appellate Division of the 11th Judicial Circuit ruled that since the assignment was valid and the insurer admitted notice of the assignment, the insurer is obligated to make payment directly to the water mitigation company. Id. The insurer’s argument that it paid the named insured does not discharge liability to the water mitigation company when the insurer was provided notice of the assignment. Id. The appellate court ordered the insurer to satisfy its obligation to the water remediation company pursuant to the terms of the assignment. Id (citing Gisela Investment, N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1056 (Fla. 3d DCA 1984)).
This Court is similarly bound by Graham’s. CPIC concedes that the assignment at issue in this case is valid. CPIC also concedes that it CPIC also admits receiving notice of the assignment on September 24, 2014. Therefore, and pursuant to Graham’s, to satisfy its obligations to EMWR pursuant to the terms of the assignment, payment must be sent directly to EMWR. See Complaint, Ex. A. However, CPIC sent a check to Marin, Eljaiek & Lopez, PL in the amount of $2,006.37 on December 17, 2014 payable to “ELIO VALDES and Marin, Eljaiek & Lopez, PL and Alonso & Perez, LLP and PEDRO G GOMEZ and Emergency Mold and Water Remediation LLC and FLAGSTAR BANK FSB ISAOA.” See CPIC’s Amended Motion for Summary Judgment, Ex. A, 6. The insurer’s argument that it paid the named insured does not discharge liability to the water mitigation company when the insurer was provided notice of the assignment. Id.
In this case, EMWR has been assigned the right to receive payments due for the services it rendered at Elio Valdes’ property. Since EMWR’s assignment is valid, payment to Elio Valdes as stated clearly by controlling precedent, will not discharge the obligation owed to EMWR. Since CPIC conceded the validity and receipt of the assignment, the only party CPIC could pay to discharge the debt owed to EMWR was EMWR. Since CPIC failed to pay EMWR, this Court must follow Graham’s and EMWR’s Motion for Summary Judgment must be granted and CPIC’s Motion for Summary Judgment must be denied.
CPIC HAS NOT PRESENTED ANY EVIDENCE INSUPPORT OF ITS AFFIRMATIVE DEFENSES
This Court also finds that CPIC has not presented any evidence in support of its affirmative defenses. As such, CPIC cannot rely on issues beyond the scope of its affirmative defenses to defeat EMWR’s motion for summary judgment. See Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971). CPIC’s two affirmative defenses pertain to CPIC’s alleged payment of the debt owed to EMWR. For reasons discussed above, CPIC did not make any payment to EMWR. The payment sent to the attorneys for the assignor does not discharge the debt or obligation owed to EMWR after notice of the assignment. Therefore, CPIC’s first and second affirmative defenses that rely on CPIC’s payments cannot provide a defense to EMWR’s breach of contract as a matter of law.
CONCLUSION
Based on the evidence presented, this Court finds that EMWR performed services covered by CPIC at Elio Valdes’ property. EMWR obtained a valid assignment of benefits for the insurance proceeds owed for the services rendered for the covered loss. CPIC did not dispute the assignment. Upon receiving notice of the assignment, CPIC was obligated under controlling Florida law to pay EMWR directly. Contrary to requirements of Florida law, CPIC instead paid part of the invoiced amount directly to the attorney for the insured, Elio Valdes, instead of EMWR. EMWR demanded payment of the insurance proceeds due to it directly from CPIC prior to filing suit. After EMWR’s demand, CPIC failed to make the payments owed to EMWR. CPIC’s failure to pay covered damages to EMWR is a breach of the obligations owed under the insurance policy. As a result of the breach, EMWR has not been paid $2,537.67 for the services rendered pursuant to the invoice.
For the reasons set forth above, it is hereby:
ORDERED AND ADJUDGED that EMWR’s Motion for Summary Judgment is GRANTED, and CPIC’s Amended Motion for Summary Judgment is DENIED. EMWR shall submit to the Court a proposed Final Judgment under separate cover.
