26 Fla. L. Weekly Supp. 985a
Online Reference: FLWSUPP 2612JGONInsurance — Property — Payment of claim within 90-day safe harbor period — No merit to insurer’s argument that it is entitled to summary judgment because it paid claim within 90-day safe harbor period provided in statute and policy where insurer paid claim more than 90 days after receipt of notice of claim — No merit to argument that 90-day period should run from date plaintiff notified insurer that it had received assignment of benefits from insured — Where insured initially filed claim and then assigned right to plaintiff, plaintiff stands in shoes of insured as to time period for payment
AFFORDABLE INSPECTION SVCS, a/a/o Jennifer Martinez Gonzalez, Plaintiff, v. CITIZENS PROPERTY INS CORP, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, County Civil Division. Case No. 2018-002329-SP-23, Section ND 06. October 5, 2018. Ramiro C. Areces, Judge. Counsel: Christopher Schirmer, Schirmer Law LLC, Fort Lauderdale, for Plaintiff. Jonathan D. Franklin, Franklin Legal Group, PA, Miami, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT, GRANTING MOTIONTO INVOKE RULES OF CIVIL PROCEDURE ANDORDERING AN ANSWER BE FILED WITHIN 20 DAYS
THIS MATTER having come before the Court on Defendant’s Motion for Summary Judgment, and this Court, having read Defendant’s Motion and Plaintiff’s Response, having heard the argument of counsel on October 1, 2018, and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED:
Defendant’s Motion is DENIED.
In its Motion for Summary Judgment, Defendant contends it is entitled to summary judgment because it paid Plaintiff’s claim “within the 90-day safe harbor period provided by Fla. Stat. 627.70131 and the policy.” Motion at 1. Defendant is incorrect.
“It is well established that a court cannot rewrite the clear and unambiguous terms of a voluntary contract. Instead, the plain meaning of the actual language used by the parties controls.” Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (internal quotations and citations omitted). In this case, the subject policy is unambiguous. The policy provides, in part, that Defendant will make a loss payment as follows,
Within 90 days after we receive notice of an initial, reopened, or supplemental property insurance claim from you, where for each initial, reopened, or supplemental property insurance claim, we shall pay or deny such claim or portion of such claim, unless there are circumstances beyond our control which reasonably prevent such payment.
Policy at 18.
It is undisputed that the insured notified Defendant of her insurance claim on the date of loss — or, September 8, 2017. The 90-day safe harbor period, therefore, expired on December 7, 2017. Defendant concedes it made payment on February 1, 2018. Defendant, nevertheless, contends its February 1, 2018 payment was timely, because the 90-day period should run from the date Plaintiff informed Defendant it had received an assignment of benefits from the insured.1 In its Motion, Defendant argues the November 17, 2017 notification is a “supplemental property insurance claim” under the policy. This argument is without merit. The exhibits attached to the Motion appear to show only one invoice, for one insurance claim, invoiced in October of 2017, for services performed as a result of the initial September 8, 2017 insurance claim. The forwarding of said invoice to Defendant in November of 2017 does not convert said services into a supplemental claim. In fact, Defendant conceded at the hearing that this case concerns only one insurance claim — namely, the one reported by the insured on September 8, 2017.2
This Court, moreover, rejects Defendant’s argument that Plaintiff had to notify Defendant of the assignment in order to kick off the 90-day safe harbor period, where the insured had already notified Defendant of the insurance claim. It is well-settled that an assignee stands in the shoes of the assignor. See e.g. Prescription Partners, LLC v. State, Dept. of Fin. Services, 109 So. 3d 1218 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D715a] (“the common law speaks in a loud and consistent voice: An assignee stands in the shoes of his assignor.”) (emphasis in original) (quotation marks omitted); Professional Consulting Services, Inc. v. Hartford Life and Accident Ins. Co., 849 So. 2d 446, 447 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1661a] (assignee “’stands in her shoes’ and has the same rights and status that she does”); Bioscience West, Inc. v. Gulfstream Property and Cas. Ins. Co., 185 So. 3d 638, 642 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D349a] (finding the insured had an insurable interest at the time of the loss and properly assigned said vested interest to a water mitigation company that then stood in her shoes).
Finally, Defendant’s reliance on Great Lakes Reinsurance (U.K.) PLC v. Branam is misplaced. 126 So. 3d 297 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D524a]. In Branam, the Third District Court of Appeal held the assignee of a marine insurance claim did not have the authority to file an insurance claim before having been assigned the policy rights. See id. at 301 (“[assignee] was a complete stranger to the insurance policy, and lacked authority to file claims thereunder”). In this case, it is undisputed the insured filed the claim, and subsequently assigned her rights under the policy to Plaintiff. The holding in Branam, therefore, is inapposite to the instant case.
Accordingly, Defendant has failed to make a prima facie showing that it is entitled to summary judgment. The Court, moreover, hereby grants Plaintiff’s pending Motion to Invoke the Rules of Civil Procedure. Defendant shall have 20 days from the date of this Order to file an answer.
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1This argument was primarily made at the hearing. In its Motion, Defendant appears to rely on the argument that the November 17, 2017 communication is a “supplemental claim.”
2Moreover, if the $1,550.00 for mold testing reflected in the October invoice is a supplemental claim, then Defendant has failed to demonstrate that an initial claim (to the extent there is a claim separate and apart from what Defendant’s have deemed “supplemental”) was adjusted and paid within 90 days. See generally Policy at 18 (requiring payment of the initial claim within 90 days, irrespective of any supplemental claim). A claim can only be supplemental if it supplements an existing claim.
