25 Fla. L. Weekly Supp. 117a
Online Reference: FLWSUPP 2501CALZInsurance — Homeowners — Standing — Motion for judgment on pleadings arguing that company that provided emergency water removal service on homeowners’ property lacks standing to sue insurer because homeowners’ 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
GRAHAM’S CARPET CLEANING & RESTORATION, LLC a/a/o Hector & Marcy Calzadilla, Plaintiff, vs. ASI PREFERRED INSURANCE CORP., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-16-023585 (49). March 2, 2017. Nina W. Di Pietro, Judge. Counsel: Paul T. Zeniewicz, Malik Law, P.A., Maitland, for Plaintiff. Thomas A. Keller, Butler Weihmuller Katz Craig, LLP, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR JUDGEMENT ON THE PLEADINGS
THIS CAUSE having come on to be heard on February 15, 2017 regarding Defendant’s Motion for Judgment on the Pleadings, the Court having heard arguments from counsel, having reviewed the court file, the legal authority, and otherwise being fully advised in the premises, makes the following findings of fact and conclusions of law:
On October 31, 2016, Plaintiff filed a one-count complaint against Defendant for Breach of Contract. Specifically, Plaintiff alleges that Hector and Marcy Calzadilla suffered water damage to their home which was covered under a policy of insurance issued by Defendant. Plaintiff further alleges that Defendant failed to pay the claim submitted by Plaintiff, as an assignee of the Calzadillas, for emergency water removal services performed. On November 22, 2016, Defendant filed an Answer, Affirmative Defenses, and a Demand for Jury Trial, and on December 8, 2016, Defendant filed a Motion for Judgment on the Pleadings. Defendant’s Motion alleges that Plaintiff lacks standing to bring suit in this matter because the assignment of benefits provided to Plaintiff by the Calzadillas was not signed by their mortgage company, as required by the terms of the subject insurance policy. Specifically, the policy contains the following provision:
Assignment of Claim Benefits. No assignment of claim benefits, regardless of whether made before loss or after loss, shall be valid without the written consent of all “insureds”, all additional insureds and all mortgagee(s) named in this policy.
ASI Preferred Insurance Corp., Policy Number FLP194346, Special Provisions for Florida, Section I — Conditions, 18. Assignment of Claim Benefits.
A motion for judgment on the pleadings filed pursuant to rule 1.140(c) must be decided wholly on the pleadings and may only be granted if the moving party is clearly entitled to judgment as a matter of law. Swim Industries Corp. v. Cavalier Manufacturing Company, Inc., 559 So.2d 301 (Fla. 2d DCA 1990); see also Clarke v. Henderson, 74 So.3d 112 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1875b]. In considering a motion for judgment on the pleadings, all well pleaded allegations by the opposing party must be accepted as true and all allegations by the moving party are treated as false. Tanglewood Mobile Sales, Inc. v. Hachem, 80 So.2d 54 (Fla 2d DCA 2001) [27 Fla. L. Weekly D84b]. A motion for judgment on the pleadings may be granted for the defendant only if plaintiff’s complaint fails to state a cause of action. Shay v. First Federal of Miami, Inc., 429 So.2d 64 (Fla. 3d DCA 1983).
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.
The Court finds that the Assignment of Claim Benefits provision in Defendant’s policy impermissibly restricts post-loss assignments. The Court rejects Defendant’s argument that Plaintiff lacks standing for failure of the insured’s mortgage company to consent to the assignment of benefits attached to Plaintiff’s Complaint, and holds that Defendant is not entitled to judgment as a matter of law.
ORDERED and ADJUDGED that Defendant’s Motion for Judgment on the Pleadings is hereby Denied.
