25 Fla. L. Weekly Supp. 170a
Online Reference: FLWSUPP 2502KUPPInsurance — Homeowners — Standing — Motion for summary judgment arguing that company that provided emergency water mitigation and mold remediation services on homeowner’s property lacks standing to sue insurer because homeowner’s spouse did not sign assignment, assignment is precluded by homestead provision of Florida Constitution, and other insured and mortgage holder did not consent to assignment of benefits, as is required by policy, is denied — Spouses can consent for each other so long as it is for benefit of each other, and constitutional homestead provision is not applicable — Policy provision that purports to require consent of other insureds and mortgage holder to assignment of benefits is contrary to Florida law and public policy
NEXTGEN RESTORATION, INC., a/a/o Rajasekhar Kuppachhi, Plaintiff, vs. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 2016-CA-000120. November 7, 2016. Rex M. Barbas, Judge. Counsel: Jordan T. Mejeur and D. William Davich, Cohen Grossman, Maitland, for Plaintiff. Michael Harrell and Jason Klein, Wood, Smith, Henning & Berman, LLP, Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT, ANDDENYING DEFENDANT’S CROSS-MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE, having come before this Honorable Court on October 17, 2016, on Plaintiff’s Motion for Partial Summary Judgment, and Defendant’s Cross-Motion for Summary Judgment, and after reviewing the filings, authority, hearing arguments of counsel, and otherwise being fully advised in the premises, this Court’s ruling is as follows:Facts & Arguments
1. It is undisputed that Rajasekhar Kuppachhi is an insured under the subject policy whose property sustained a covered water loss on May 31, 2015.
2. The insured executed an assignment of benefits on June 1, 2015 for Plaintiff, NextGen Restoration, Inc. as consideration for NextGen’s water mitigation and mold remediation services.
3. After Defendant, American Integrity Insurance Company of Florida denied the validity of NextGen’s assignment in its affirmative defenses, NextGen filed a Motion for Partial Summary Judgment on the assignment’s validity.
4. American Integrity thereafter filed a Cross-Motion for Summary Judgment arguing that NextGen’s assignment is invalid because: (1) only one insured signed the assignment, (2) the Homestead provision, Article X section 4 of Florida’s Constitution, precludes the assignment, and (3) a policy provision purporting to require other insureds’ and a mortgagee’s consent to the assignment. Defendant further argues that it has preserved its ability to challenge the assignment pursuant to its reservation of rights letters sent with partial payments to NextGen.Analysis
5. Although this Court finds that Defendant has not waived its arguments under its reservation of rights letters, this Court finds that NextGen’s post-loss assignment is valid.
6. First, spouses can sign for each other so long as it is for the benefit of both; and here, there is no evidence indicating otherwise. Second, NextGen’s assignment in no way impinges on the protections of Florida’s Homestead provision, as it is designed to prevent forced-sale and seizure upon execution of a lien. Last, the policy provision that purports to require other insureds’ and a mortgagee’s consent to NextGen’s assignment is contrary to both Florida law, and public policy. See Accident Cleaners, Inc. v. Universal Ins. Co., 186 So. 3d 1 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D862a]; Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co., 185 So. 3d 638 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D349a].
Accordingly, it is therefore ORDERED AND ADJUDGED:
7. That Plaintiff’s Motion for Partial Summary Judgment is GRANTED and Defendant’s Cross Motion for Summary Judgment is DENIED.
