26 Fla. L. Weekly Supp. 627a
Online Reference: FLWSUPP 2608CROCInsurance — Homeowners — Assignment — Validity — Assignment of benefits was not invalid under state law requirements regarding alienation of homestead property, as the exemption for repairs to the property contained in Article I, Section 4 of Constitution applied — Contract between plaintiff/assignee and insured was not invalid due to absence of a fixed price — So long as there is any consideration in support of assignment the assignment is valid — Agreement that contractor/assignee would accept partial payment from insureds and then seek the balance from the insurer was sufficient consideration — Accord and satisfaction — Assignee’s claim not barred by insurer’s tender of payment to insureds — Once assignment was made, assignee stood in shoes of insureds and was the only entity entitled to insurance benefits for the claim — Summary judgment denied
A.J. WELLS ROOFING & CONSTRUCTION, a/a/o Kevin and Charmaine Crockett, Plaintiff, v. THE FIRST LIBERTY INSURANCE CORPORATION, Defendant. Circuit Court, 4th Judicial Circuit in and for Clay County. Case No. 2018-CA-0375, Division E. September 12, 2018. Don H. Lester, Judge. Counsel: Dale S. Shelton and Charles P. Pearson, Shelton Law, PLLC, Tallahassee, for Plaintiff. Matthew J. Lavisky, Butler Weihmuller Katz Craig LLP, Tampa, for Defendant.ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARYJUDGMENT AND SECOND MOTION FOR SUMMARY JUDGMENT
This cause came before the Court for hearing on September 5, 2018, on the defendant’s Motion for Final Summary Judgment (the “First Motion”) and the defendant’s Second Motion for Summary Judgment (the “Second Motion”). The Court has reviewed the record, heard argument of counsel and is otherwise duly advised in the premises. The Court finds as follows.
This is an action for recovery of insurance proceeds under a homeowner’s policy issued by the defendant to its insureds, Kevin and Charmaine Crockett (the “Insureds”). The Insureds suffered a covered loss due to windstorm. After the loss was incurred, the Insureds enter into a contract for repair with the plaintiff and assigned to the plaintiff all of their rights to insurance proceeds payable in connection with the loss.
In the First Motion, the defendant attacks the assignment by the Insureds to the plaintiff, contending that the assignment is invalid because the written assignment fails to satisfy the legal requirements for alienation of homestead property or benefits thereof. The defendant also attacks the validity of the contract and the assignment between the Insureds and the plaintiff. In the Second Motion, the defendant contends that it paid the replacement cost of the damage, and that the plaintiff’s claim is barred by accord and satisfaction.
As to the First Motion, the Court finds that the assignment is valid. Certainly, there is no dispute that insureds generally have a right to assign the right to benefits under a homeowners policy. Bioscience West, Inc. v. Gulfstream Property and Casualty Ins. Co., 185 So.3d 638 (Fla. 2nd DCA 2016) [41 Fla. L. Weekly D349a]; One Call Property Services, Inc. v. Security First Ins. Co., 165 So.3d 749 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. Admittedly, those cases, and others, do not directly address the precise issue raised by the defendant; that is, Florida law’s requirements regarding alienation of homestead property, as this issue was likely never raised. However, the Court agrees with the plaintiff that the exemption for repairs to the property contained in Article I, Section 4 of the Constitution applies here. The case relied upon by the defendant, Quiroga v. Citizens Property Ins. Corp., 34 So.3d 101 (Fla. 3rd DCA 2010) [35 Fla. L. Weekly D767a], is inapposite, as that case dealt with imposition of an attorneys lien for legal services performed pursuant to a contingent fee contract.
The defendant next argues that the contract between the Insureds and the plaintiff is invalid because there was no fixed price in the contract. However, the defendant’s attempt to attack the contract between the Insureds and the plaintiff is unavailing. It is true that the underlying contract does not have a fixed price. Therefore, if the plaintiff had filed suit against the Insureds for breach or performance of the contract, the lack of price could defeat such a claim. See, e.g., Gables I Townhomes, Inc. v. Sunmark Restoration, Inc., 687 So.2d 6 (Fla. 3rd DCA 1996) [21 Fla. L. Weekly D2376b]; (but see, Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 302 So.2d 404 (Fla. 1974) (court should be extremely hesitant to hold contract void for indefiniteness where one party has performed and other party has obtained benefit of performance)).
Here, however, the plaintiff does not seek to enforce the construction contract against the Insureds. In any event, there was clearly mutuality of consideration and obligation as between the Insureds and the plaintiff. The Insureds agreed to pay a portion of the total cost of repair and assigned their right to insurance proceeds to the plaintiff. The plaintiff agreed to perform the work and then seek the balance from the defendant. This consideration is sufficient to confer standing on the plaintiff by virtue of the assignment. The defendant has cited no case to the Court that stands for the proposition that a non-party to a contract has the right to challenge the legal validity thereof. In any event, so long as there was any consideration in support of the assignment, as there clearly was here, the assignment is valid, and the plaintiff has the right to pursue benefits under the homeowners policy.
In its Second Motion, the defendant raises two grounds. First, the defendant claims that no amounts are due the plaintiff because it has already paid all benefits due under the policy. Second, the defendant asserts accord and satisfaction. In support of the first ground, the defendant points out that the subject policy allows an insured to recover the lower of actual cash value or replacement cost. The defendant claims that it has paid replacement cost because it has tendered an amount sufficient to satisfy the obligation as between the Insureds and the plaintiff.
This argument conflates its obligation under the policy with the obligation between the plaintiff and the Insureds, when these concepts are analytically distinct. Once the assignment was made between the Insureds and the plaintiff, the plaintiff stood in the shoes of the Insureds and was the only entity entitled to insurance benefits for this claim. United Water Restoration Group, Inc. v. State Farm Florida Ins. Co., 173 So.3d 1025, 1027 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1569a]; One Call Property Services, Inc. v. Security First Ins. Co., 165 So.3d 749, 752 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. Stated differently, for purposes of this claim, the defendant was now in contractual privity with the plaintiff for purposes of the insurance claim. Any resolution of the claims between the plaintiff and the Insureds is irrelevant to the defendant’s obligation, if any, to the plaintiff. The defendant cites no case for a contrary proposition.
The defendant’s reliance on State Farm Fire & Cas. Co. v. Patrick, 647 So.2d 983 (Fla. 3rd DCA 1994), is misplaced. There, the insured, a contractor, completed the work himself for less than the original estimated replacement cost. The case stands for the unremarkable proposition that actual replacement cost prevails over estimated replacement cost. In this case, the actual replacement cost allegedly exceeds the original estimated replacement cost. In Patrick, there was no assignment of benefits. Here, the plaintiff is the “insured” for purposes of evaluating the benefit payable, and the “insured’s” actual replacement cost exceeds the initial estimate. Whether the Insureds, who no longer had any interest in the insurance proceeds for this claim, paid less than the total cost of the work is legally irrelevant.
There is no accord and satisfaction. Again, the plaintiff now stands in the shoes of the Insureds. For the reasons set forth above, a resolution of any claim between the plaintiff and the Insureds has no bearing on the plaintiff’s claims against the defendant. Clearly there has been no accord and satisfaction directly between the plaintiff and the defendant herein.
It is therefore
ORDERED AND ADJUDGED as follows:
1. The defendant’s Motion for Final Summary Judgment is denied.
2. The defendant’s Second Motion for Summary Judgment is denied.
