25 Fla. L. Weekly Supp. 825a
Online Reference: FLWSUPP 2509FLASInsurance — Homeowners — Water damage remediation — Where water damage remediation contractor did not provide insurer with notice of assignment of homeowner’s benefits prior to filing complaint against insurer for breach of contract, insurer had no obligation to pay contractor before suit was filed, and there was no basis for breach of contract action — Where assignment sued upon does not reflect correct name of insurer, correct name of contractor as assignee, or correct policy number, no valid assignment of homeowner’s benefits exists — Summary judgment is entered in favor of insurer
FLASHDRY RESTORATION SERVICES CORP., a/a/o Alberto Ortiz, Plaintiffs, vs. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2016-009418-SP-23. November 15, 2017. Linda Singer Stein, Judge. Counsel: Amanda Sidman, David Low & Associates, P.A., Fort Lauderdale, for Plaintiff. Valerie B. Barnhart and Carlos A. Prieto, Kelley Kronenberg, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT, CITIZENSPROPERTY INSURANCE CORPORATION’SAMENDED MOTION FOR FINALSUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on September 27, 2017 on Defendant, CITIZENS PROPERTY INSURANCE CORPORATION’S (“Citizens”), Amended Motion for Final Summary Judgment. The Court having considered the Motion and Response, summary judgment evidence, relevant legal authority, having heard argument of counsel, and being otherwise fully advised, finds and decides as follows:
FINDINGS OF FACT
This action involves a claim for insurance benefits under a homeowner’s insurance policy filed by the Plaintiff, FLASHDRY RESTORATION SERVICES CORP., a/a/o Alberto Ortiz, against Citizens arising out of an alleged water loss sustained by Citizens’ insured, Alberto Ortiz, that occurred on October 13, 2015. Citizens issued homeowner’s insurance policy number 01153418 to Alberto Ortiz which provided coverage to the subject property. The policy period was from September 20, 2015 to September 20, 2016.
On October 15, 2015, Mr. Ortiz reported to Citizens that an alleged heavy rain caused water damage to his home. Ultimately, on October 30, 2015, Citizens denied the claim made by Mr. Ortiz. Seven months after the denial of Mr. Ortiz’s claim, Plaintiff filed this lawsuit alleging that, as an assignee of Mr. Ortiz’s benefits under the homeowner’s insurance policy, Plaintiff was entitled to payment for water remediation work it performed at Mr. Ortiz’s property. Attached to Plaintiff’s Complaint as Exhibit A is a document titled “Assignment” which is dated May 24, 2016 and identifies (a) the insurer as “CJitlmns Property Insurance Corporation;” (b) the policy number as “EM5!H7099460”; (c) the contractor as “FlashDzy;” and (d) the signing contractor as “Carmen Rosa Flores.”
CONCLUSIONS OF LAW
Citizens has filed a Motion for Summary Judgment. Florida Rule of Civil Procedure 1.510 dictates that “judgment must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Summary judgment should be granted where a case presents no genuine issue of material fact and there remains nothing but question of law. Duarte v Wetzel, 682 So. 2d 1200, 1201 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2435d]. When the moving party shows that no material fact on issue is disputed, the burden shifts to the non-moving party to demonstrate that a material fact is in dispute. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Summary judgment is appropriate upon an opposing party’s failure to present competent evidence revealing a genuine issue of fact. Harvey Bldg., Inc. v. Haley, 175 So. 2d 780 (Fla. 1965).
The Court has carefully considered the summary judgment evidence and determines that Plaintiff did not provide Citizens with notice of its alleged assignment of benefits prior to filing this lawsuit. Accordingly, at the time Plaintiff contends Citizens had notice of the services and demand for payment, the assignment of benefits upon which Plaintiff sues did not exist.
Not until an assignment of benefits has been received are any contractual obligations triggered. Great Lakes Reinsurance (U.K.) PLC v. Branam, 126 So. 3d 297, 301 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D524a]. In Great Lakes, the Third District Court of Appeal found that the insurer has not “denied a valid claim that would have given rise to . . . [a] breach of contract action” when the notice of assignment is provided at the same time that the claim was filed. Id.
Citizens had no knowledge that Plaintiff claimed assigned benefits under the policy, and as a result, Citizens had no duty to perform under the policy until it received a valid assignment of benefits. Citizens did not receive the Assignment from the Plaintiff prior to the initiation of the instant lawsuit. Since the Assignment sued upon was not provided to Citizens until the filing of this case, Citizens had no obligation to pay the Plaintiff. Nor did Citizens deny a valid claim as to the Plaintiff which gives rise to a valid breach of contract claim. As Citizens did not have notice of the subject Assignment during the claims investigation, Citizens does not owe any duties to Plaintiff as a matter of law. Great Lakes Reinsurance PLC v. Branam, 126 So. 3d 297 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D524].
Second, Citizens contends that it is entitled to summary judgment on Plaintiff’s claim because no valid assignment exists. The Court has carefully considered the summary judgment evidence and determines that the Assignment sued upon, which is attached to the Plaintiff’s Complaint, does not reflect Citizens as the insurer and purports to partially assign benefits under an insurance policy not related to the insured, Mr. Ortiz, of whom Plaintiff claims to be an assignee.
The Assignment identifies “CJitlmns Property Insurance Corporation” as the insurer in the heading. The Assignment also identifies “Flashdzy Restoration Services, Corporation” as the Contractor in the introductory sentence. Lastly, the Assignment erroneously states that it relates to benefits under insurance policy “EM5!H7099460.”
Because the Assignment sued upon does not reflect Citizens as the insurer, does not reflect Plaintiff as the assignee, and relates to an insurance policy that is not that of Mr. Ortiz, Citizens’s Amended Motion for Final Summary Judgment is granted.
IT IS THEREFORE ORDERED that Citizens Property Insurance Corporation’s Amended Motion for Final Summary Judgment is hereby is GRANTED and Final Judgment is hereby entered on behalf of Citizens Property Insurance Corporation. Plaintiff, Flashdry Restoration Services Corporation., a/a/o Alberto Ortiz, shall take nothing by this action.
The Court retains jurisdiction to consider any motion by Citizens to tax attorney’s fees and costs.
