26 Fla. L. Weekly Supp. 495a
Online Reference: FLWSUPP 2606DOKTInsurance — Homeowners — Standing — Assignment — Public adjuster — Insurer has no standing to challenge assignment through which insureds assigned post-loss insurance benefits to public adjuster — Statute which prohibits public adjuster from charging or accepting more than 20% of claim payments made by insurer deals solely with compensation of public adjuster for services rendered as public adjuster and did not preclude insureds from assigning post-loss benefits to public adjuster after public adjusting work ended — Moreover, assignment that provides that public adjuster will only receive 20% of any recovery for insurer did not violate public adjusting law if that law is applicable
GABLES INSURANCE RECOVERY, INC., a/a/o Doktor, Inc., Plaintiff, v. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Defendant. Circuit Court, 20th Judicial Circuit in and for Lee County, Civil Division. Case No. 2017-CA-000042. December 15, 2017. Keith R. Kyle, Judge.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on October 30, 2017, at 4:00 p.m., on Defendant American Integrity Insurance Company of Florida’s (“American Integrity”) Motion for Summary Judgment and (2) Plaintiff Gables Insurance Recovery, Inc. a/a/o Doktor, Inc.’s (“Gables”) Cross Motion for Partial Summary Judgment on the Defendant American Integrity’s First Affirmative Defense, and the Court having heard argument of counsel, reviewed the file, and being otherwise duty advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:I. The Pleadings
In this case, Plaintiff Gables has sued Defendant American Integrity in a one count amended complaint for breach of contract. The complaint alleges that American Integrity issued an insurance policy to its insured, Doktor, Inc. (“Doktor” or “the insured”), for homeowners insurance coverage for certain real property. While the policy was in force and effect, on or about January 28, 2015, Doktor suffered physical damage to its property and personal contents as a result of a pipe failure. When the claim was tendered to American Integrity, Gables asserts American Integrity refused to provide coverage for the loss. Thereafter, Gables alleges Doktor assigned its rights to any post loss insurance benefits, and the cause of action for recovery of those benefits, to Gables. Gables’ complaint alleges that it is an assignee of Doktor’s insurance contract claim for recovery of the insurance proceeds allegedly due.
American Integrity answered the amended complaint and raised certain affirmative defenses. In its first affirmative defense, American Integrity asserts that Gables lacks standing. The insurer alleges that Gables is a public adjuster; that by statute and administrative rule, Gables, as a public adjuster, cannot receive compensation in excess of the statutory cap of 20% of an insurance claim payment; and that the assignment agreement between Doktor and Gables transferred to Gables the full legal title to the post loss insurance claim, thereby giving Gables 100% of ownership in the claim. That, American Integrity alleges, is a violation of Section 626.854(11), Fla. Stat., and Section 69B-220.201(4)(d), Fla. Admin. Code.
In its reply to the affirmative defenses, Gables alleges that American Integrity lacks standing to, and is estopped from, challenging the agreement between Doktor and Gables as American Integrity was neither a party to the contract nor a third party beneficiary of that contract. Further, with regard to the cited statute and rule, Gables alleges that the statute and rule only regulates the compensation that Gables gets for public adjusting services and that since the assigned claim does not involve public adjusting activity, it is not precluded by law or rule and the cited provisions, Section 626.854(11), Fla. Stat., and Section 69B-220.201(4)(d), Fla. Admin. Code. Gables further alleges that Section 626.854(11), Fla. Stat., and Section 69B-220.201(4)(d), Fla. Admin. Code, do not provide a private right of action and allow only for administrative penalties. Lastly, Gables alleges that if the statute and rule do apply to assign a claim of this nature, they are unconstitutional as application of the statute in such a fashion would conflict with Art. I, Section 2, Fla. Const.; Art. I, Section 10, Fla. Const.; and Art. I, Section 21 of the Fla. Const.II. American Integrity’s Motion for Summary Judgment andGables Cross Motion for Partial Summary Judgment
American Integrity has now filed a motion for summary judgment. In it, American Integrity argues that Doktor was without any legal ability to assign the post-loss insurance benefits and chose in action to Gables because the transaction would be in violation of Section 626.854(11), Fla. Stat., and Section 69B-220.201(4)(d), Fla. Admin. Code. According to American Integrity, who is not a party to the agreement between the Doktor and Gables, the assignment is not valid because Doktor was not able to assign its interest in the post loss insurance proceeds to Gables — because Gables is a public adjuster. American Integrity contends that the Doktor assignment to Gables is in violation of these provisions and is against public policy. American Integrity asserts that the assignment is void.
Gables cross moves for summary judgment as to American Integrity’s first affirmative defense that the assignment between Doktor and Gables violates Section 626.854(11), Fla. Stat., and Section 69B-220.201(4)(d), Fla. Admin. Code. Gables asserts the American Integrity motion must fail and its cross motion be granted because American Integrity has no standing to challenge or contest a transaction voluntarily entered into between Doktor and Gables. American Integrity was neither a signatory to the agreement nor an intended third party beneficiary thereof. Second, Gables argues that Section 626.854(11), Fla. Stat., and Section 69B-220.201(4)(d), Fla. Admin. Code, preclude common law assignments. The language of the statute and rule relied upon by the insurer does not outlaw the common law right of assignment, which Doktor voluntarily exercised in favor of Gables’ pursuit of the claim. Gables alleges that any compensation it is entitled to under its assignment agreement is not for public adjusting services, but is purely for litigation collection on the property damage claim. Finally, to the extent that Section 626.854(11), Fla. Stat., and Section 69B-220.20 I (4)(d), Fla. Admin. Code, are deemed applicable to the transaction between Doktor and Gables, it is asserted they violate the Florida Constitution. Such an interpretation of the statute runs contrary to the constitutional right of a Floridian to transfer his, her, or its property as they deem fit.III. Undisputed Material Facts Germane to theParties’ Motions for Summary Judgment
American Integrity issued a homeowners insurance policy to Doktor. On or about January 28, 2015, during the American Integrity policy period, Doktor experienced a property damage event to their real and personal property. The claim was reported to American Integrity but Doktor’s efforts to obtain a payment for the claim were not successful.
On or about April 14, 2015, Doktor entered into a public adjusting agreement with Gables to appraise, advise, and assist Doktor with regard to the damage claim filed with American Integrity. Gables provided the contracted for assistance to Doktor on the claim, but it again did not yield in any change of position by American Integrity. Accordingly, both Doktor and Gables say that the public adjusting was unsuccessful and the parties concluded that agreement.
Thereafter, Doktor decided to assign all of its rights in the insurance claim to Gables. If any recovery would be had under the assigned claim, Gables’ compensation would be 20% of the recovery and the remainder of the recovery would be paid to Doktor. The assignment provides in pertinent part:
I, the insured, hereby assign any and all insurance rights, benefits, proceeds and any causes of action under any applicable insurance policies for the premises identified herein, to Gables insurance Recovery, Inc. In this regard, I waive my privacy rights and I make this assignment for consideration of GIR’s agreement to perform professional services. I also hereby direct my/our insurance carrier to release any and all information requested by GIR, its representative(s), and/or its attorney for the direct purpose of obtaining actual benefits to be paid by my insurance carrier for the claimed loss.
Upon information and belief, the appropriate insurance carrier is American Integrity Select Insurance Company under a policy number AGD247062 for a loss that took place on January 28, 2015 at insured location 4609 SW 9th Ave., Cape Coral, FL 33914.
Both Doktor and Gables aver that the decision to transfer ownership and title to the post loss insurance proceeds claim was freely, knowingly, and voluntarily done. Doktor states that it did so because it would be Gables who undertakes the time, cost, expense, and risks of the claim’s pursuit, and Doktor would benefit without incurring personal risk. Doktor states it has the right to transfer ownership of its property as it wishes and deems appropriate, and believes that the transfer in this case is in its best interests.IV. Discussion
Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The question of whether a contract, or a provision in it, is void, unconstitutional, or against public policy is a pure question of law. Searcy Denney, Scarola, Barnhart & Shipley v. State, 209 So.3d 1181 (Fla. 2017) [42 Fla. L. Weekly S92a]; Franks v. Bowers, 116 So.3d 1240 (Fla. 2013) [38 Fla. L. Weekly S416a]; Gessa v. Manor Care of Florida, Inc., 86 So.3d 484, 492 (Fla. 2011) [36 Fla. L. Weekly S676a]; Chandris, S.A. v. Yanakakis, 668 So.2d 180, 185 (Fla. 1995) [20 Fla. L. Weekly S603a].a. Standing
American Integrity contends it is entitled to summary judgment because the assignment — between Doktor and Gables — is unenforceable and void. Gables contends that American Integrity lacks standing to challenge the contract. Because American Integrity was not a party to the contract and was not an intended third party beneficiary of that contract, Gables asserts it is not entitled to make such a challenge.
In Florida, only a party to a contract or a third party beneficiary to the contract can challenge the enforceability or validity of a contract. Lugassy v. Independent Fire Insurance Co., 636 So. 2d 1332 (Fla. 1994). A third party cannot maintain an action based on a contract or challenge the validity of a contract unless the clear intent and purpose of the contract is to directly and substantially benefit the third party. Thompson v. Commercial Union Ins. Co. of N.Y., 250 So. 2d 259, 262 (Fla. 1971). When it comes to insurance policy proceeds, Florida common law holds the right to payment, post loss, may be lawfully assigned to a third party — without the insurer having a say in the issue. Citizens Prop. Ins. Corp. v. Ifergane, 114 So.2d 190, 197 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2205a]; Gisela Invs., NV v. Liberty Mut. Ins. Co., 452 So.2d 1056 (Fla. 3d DCA 1984); Professional Consulting Services, Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1661a].
Given the great volume of law in this area, it is crystal clear that post loss insurance rights are transferrable, and that insurers have no say in the issue. Security First Ins. Co. v. State, Office of Ins. Regulation, 177 So.3d 627, 628 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2406a] (“[W]e find an unbroken string of Florida cases over the past century holding that policyholders have the right to assign such claims without insurer consent.”). Doktor and Gables are the only two parties to the assignment, and American Integrity has no legal cognizable right to challenge that transaction. As such, the Court concludes that American Integrity has no standing to challenge the agreement voluntarily entered into between Doktor and Gables.c. Florida Public Adjusting Law
Assuming for sake of discussion that American Integrity does have standing to challenge the assignment agreement, the Court next takes up the issue of whether Florida statutory and administrative law governing public adjuster conduct is violated when an insured assigns its post loss right to insurance benefits under circumstances such as these.
Section 626,854(a) defines a “public adjuster” as:
“[A]ny person . . . who, for money, commission, or any other thing of value, prepares, completes, or files an insurance claim form for an insured or third-party claimant or who, for money, commission, or any other thing of value, acts on behalf of, or aids an insured or third-party claimant in negotiating for or effecting the settlement of a claim or claims for loss or damage covered by an insurance contract or who advertises for employment as an adjuster of such claims.
The pertinent part of the statute invoked by American Integrity in this case is Section 626.854(11)(b), Fla. Stat., which states:
A public adjuster may not charge, agree to, or accept from any source compensation, payment, commission, fee, or any other thing of value in excess of:
* * *
2. Twenty percent of the amount of insurance claim payments made by the insurer for claims that are not based on events that are the subject of a declaration of a state of emergency by the Governor.
Section 626.854(11)(c), Fla. Stat., then states that “[a]ny maneuver, shift, or device through which the limits on compensation set forth in this subsection are exceeded is a violation of this chapter punishable as provided under s. 626.8698.”
Section 626.8698, Fla. Stat., in turn, states as follows:
The department may deny, suspend, or revoke the license of a public adjuster or public adjuster apprentice, and administer a fine not to exceed $5,000 per act, for any of the following:
(1) Violation of any provision of this chapter or a rule or order of the department;
(2) Receiving payment or anything of value as a result of an unfair or deceptive practice;
(3) Receiving or accepting any fee, kickback, or other thing of value pursuant to any agreement or understanding, oral or otherwise; entering into a split-fee arrangement with another person who is not a public adjuster; or being otherwise paid or accepting payment for services that have not been performed;
(4) Violating s. 316.066 or s. 817.234;
(5) Soliciting or otherwise taking advantage of a person who is vulnerable, emotional, or otherwise upset as the result of a trauma, accident, or other similar occurrence; or
(6) Violating any ethical rule of the department.
Section 69B-220.201(4)(d), Fla. Admin. Code, also relied upon by American Integrity, states that “[n]o public adjuster who represents a claimant with regard to a particular claim shall enter into any contract, agreement or other arrangement with any person, which would allow the public adjuster to accept an amount that would exceed the limitation of the public adjuster’s compensation imposed by Section 626.854(11), F.S.”
From all of the forgoing, American Integrity contends Gables is forbidden from obtaining or receiving an assignment of post loss insurance benefits and the chose of action for their recovery because it is a licensed public adjuster. American Integrity asserts Gables is not permitted to be an assignee because Gables previously performed public adjuster services for the insured on the claim. The question for the Court is whether these statutory and administrative provisions make the assignment from Doktor to Gables void and unenforceable.
At the outset, the Court notes that when Section 626.854, Fla. Stat., was enacted in 2008, the law on assignment of post loss insurance claims was well developed. Florida common law provides the right to a post loss payment of an insurance claim was fully assignable to a third party. Citizens Prop. Ins. Corp. v. Ifergane, 114 So.2d 190, 197 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2205a]; Gisela Invs., N. V. v. Liberty Mut. Ins. Co., 452 So.2d 1056 (Fla. 3d DCA 1984); Professional Consulting Services, Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1661a]. When the Legislature enacted Section 626.854, Fla. Stat., it did not include within its provision any reference whatsoever to assignments. The statute does not speak to the issue.
It is a well-settled rule of statutory construction that courts will not find a statutory change in the common law, except as specified and plainly pronounced in the statute. A statute, therefore, designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change in the common law is intended unless the statute is explicit in this regard. Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 364 (Fla. 1977); Slawson v. Fast Food Enters., 671 So.2d 255, 257-58 (Fla. 4th DCA I 996) [21 Fla. L. Weekly D846a] (“[S]tatutes abolishing or limiting the common law must be clear as to the abrogation or change, when the extent of the abrogation or change is not clear from the text of the statute, then the common law rule stands.”).
In our case, Section 626.854, Fla. Stat., is silent on the subject of post loss assignments of claim. It does not address this subject at all. The only fair reading of the entire statute is that it regulates how public adjusters do the job of public adjusting. And with regard to the specific section of the statute relied upon by the insurance company, it deals solely with the compensation of a public adjuster for services rendered as a public adjuster. Nothing about the statute says that post loss assignments of claims are prohibited — to public adjusters who previously and unsuccessfully worked on the claim or to anyone else. As such, American Integrity’s attempt to use this statute to declare Doktor’s assignment to Gables void is fundamentally flawed — the statute does not preclude or even address assignments. Essex Ins. Co. v. Zota, 985 So.2d 1036, 1048 (Fla. 2008) [33 Fla. L. Weekly S425b] (to alter the common law, a statute is required to announce that intention in explicit, unequivocal terms).
To emphasize this point, Gables notes from a canvas of various Florida statutes that the Legislature is familiar with how to change application of the common law of assignments in particular areas of regulated conduct — when it actually wants to do so. There are specific examples in Florida statutory law of the legislature’s decision to change the common law and to prohibit assignments. Section 175.241, Fla. Stat., plainly states that firefighters’ pensions, annuities, and benefits “shall be unassignable.” Likewise, the legislature enacted Section 440.22, Fla. Stat., which states that no assignment of workers’ compensation benefits, except as provided in the statutes, shall be valid. In the present case, however, not only does the plain language of Section 626.854 fail to expressly change the common law doctrine of permitting assignment of post loss benefits, it does not even mention or allude to that doctrine.
Further, Gables directs this Court’s attention to the fact that in both the 2016 and 2017 legislative sessions, the House and Senate have entertained proposed bills on the subject of regulating assignments and the transfer of property insurance rights. In 2016, Florida House Bill No. 1097 and Senate Bill No. 596 were introduced, but neither bill was enacted into law. In this past 2017 legislative session, there likewise were bills introduced to regulate assignments and transfer of property rights. 2017 Florida House Bill No. 1421 and Senate Bill No. 1038 both sought to provide restrictions and limitations on certain assignment agreements. These proposed changes to the common law regarding assignments were not passed into law.
The Court notes the Legislature certainly knows how to entertain regulation of assignments, if it wishes to do so. And it has not enacted any legislation barring assignments of post loss insurance claims to public adjusters or anyone else. Without something being said by the Legislature on the subject, it cannot be reasonably argued that the Legislature changed the common law on assignments in enacting Section 626.854, Fla. Stat.
The first step in determining the meaning of a statute is to examine its plain language; courts must look first to the actual language of the statute itself. J.M. v. Gargett, 101 So. 3d 352 (Fla. 2012) [37 Fla. L. Weekly S611a]; Bennett v. St. Vincent’s Medical Center, Inc., 71 So. 3d 828 (Fla. 2011) [36 Fla. L. Weekly S366a]. When a statute is clear and unambiguous and conveys a clear and definite meaning, the courts will not look behind its plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Paul v. State, 129 So.3d 1058 (Fla. 2013) [38 Fla. L. Weekly S228a]. In such instance, the plain and ordinary meaning of the words of a statute must control. Samples v. Florida Birth-Related Neurological Injury Camp. Ass’n, 114 So.3d 912 (Fla. 2013) [38 Fla. L. Weekly S317a]. Thus, unambiguous language in a statute is not subject to judicial construction, however wise it may seem to alter the plain language. Atlantis at Perdido Ass’n, Inc. v. Warner, 932 So.2s 1206, 1212-13 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D1827c]. If the meaning of the statute is clear, the court’s task goes no further than applying the plain language of the statute. Hill v. Davis, 70 So.3d 572, 575-76 (Fla. 2011) [36 Fla. L. Weekly S487a].
There is nothing in Section 626.854, Fla. Stat., which allows this Court to conclude assignments of the kind involved in this case are prohibited. The insured, Doktor, wants to pursue its insurance claim, but understandably wants to reduce the risks associated with litigation. For compensation that satisfies the Section 626.854 requirements, Gables will undertake the risks of litigation and pursue the claim for its assignor’s benefit. There is nothing in the statutory scheme that supports the notion that such an arrangement violates the provisions of the law. As such, the Court sees nothing in the statute or its enacting rule which prohibits Doktor from deciding to transfer its claim to Gables.
Beyond the fact that nothing about the statute and rule precludes assignments, the text of the statute and rule do not even read as applying to the instant facts. Section 626.854(11)(b)(2), Fla. Stat., states a “public adjuster may not charge, agree to, or accept from any source compensation, payment, commission, fee, or any other thing of value in excess of . . . [t]wenty percent of the amount of insurance claim payments made by the insurer[.]” Emphasis added. Section 69B-220.201(4)(d), Fla. Admin. Code, states “[n]o public adjuster who represents a claimant with regard to a particular claim shall enter into any contract, agreement or other arrangement . . which would allow the public adjuster to accept an amount that would exceed the limitation of the public adjuster’s compensation imposed by Section 626.854(11), F.S.”). Emphasis added.
It is undisputed that Gables was hired to provide public adjusting consultation and assistance to Doktor. During that time, Gables was working on the claim owned by Doktor. It is also undisputed, however, that contractual relationship and representation ended. As such, the Gables work as an adjuster came to an end. Thereafter, when Doktor decided to assign its entire claim to Gables, the claim no longer was owned by Doktor. “Once an assignment is made, the assignor no longer has a right to enforce the interest because the assignee has obtained all rights to the thing assigned.” Bioscience West, Inc. v. Gulfstream Property and Cas. Ins. Co., 185 So.3d 638, 640 (Fla. 2d 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]. It was the property of Gables. As such, Gables was no longer in the role of a public adjuster; the claim was now its own, subject to the terms of its agreement with Doktor.
In this regard, American Integrity’s argument leads to the following conclusions. An insured may assign its post loss insurance claim to anyone in the world, except a person holding a license as a public adjuster in Florida. So anyone may receive an assignment of a post loss claim, be they a general contractor, a lawyer, a doctor, anyone — just not an insurance adjuster. The general contractor, lawyer, doctor, or anyone else can obtain that assignment for 40%, 50%, 90%, or even 100% of the recovery, and all of that is permissible; but an assignment to a public adjuster, whether they worked the claim or not, for compensation within the range allowed by the statute, is illegal. Such a construction of this statute is non sensical. Florida Audubon Society v. Sugar Cane Growers Cooperative of Fla., 171 So.3d 790, 798 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1850a] (a statutory provision should not be construed in such a way that leads to absurd results).
Further, Gables’ services under the assignment agreement at this point are not “public adjusting.” Gables is not helping an insured with the evaluation of a claim, filing an insurance claim form, or negotiating for or effecting settlement of a claim belonging to another. Section 626.854(1), Fla. Stat. Instead, Gables is filing a lawsuit and pursuing through the judicial process the issue of whether the claim is covered by the insurance and the amount due it for the loss under the assignment. So, it is no longer public adjusting — that contract ended and Gables now stands in the shoes of the assignor/insured. As such, it would appear that what the statute addresses — public adjusting — is not involved where there is an assignment of a claim for pursuit through legal proceedings.
Next, even if one could say that Gables is still somehow governed under the cancelled public adjusting contract, and not under the subsequent assignment agreement, the next question is whether the provisions of the statute and rule are violated by the assignment agreement itself. The answer to this question appears to be “no.” The plain and ordinary language used in the statute and administrative rule address the issue of public adjuster compensation — how much the public adjuster may charge for its service. The plain language of Section 626.854, Fla. Stat., is solely focused on the legislative determination that a public adjuster must not share in more than a particular percentage of the insurance recovery as compensation. On its best day, in order for the insurance company to assert the assignment is void ab initio, it must be shown that the amount of compensation to Gables under the assignment is greater than the amount allowed by law. The undisputed evidence is that Doktor will get 80% of any recovery, and Gables will only get 20%. The undisputed material facts show no violation of the statutory and administrative provisions, even if it could be said that they apply.
American Integrity’s argument that this statute and rule bar Gables from being an assignee because Gables becomes the one hundred (100%) assigned benefit owner — without regard to Gables’ actual compensation — simply requires this Court to add language to this statute and rule that does not exist. Courts are not at liberty to add words to statutes that were not placed there by the legislature, and may not import words or meaning into a statute that do not appear on the face of the statute. To do so is an abrogation of the legislative power. Boulis v. Blackburn, 16 So. 3d 186 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1567b]; Lawnwood Medical Center, Inc. v. Seeger, 990 So. 2d 503 (Fla. 2008) [33 Fla. L. Weekly S590a]; Exposito v. State, 891 So. 2d 525 (Fla. 2004) [30 Fla. L. Weekly S9a]; Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n, 895 So. 2d 1197 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D547c]; Courtney Enterprises, Inc. v. Publix Super Markets, Inc., 788 So. 2d 1045 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1038b]. If there is any concern that a strict interpretation might not comport with the legislature’s intent, the legislature should generally be required to amend the statute if it is necessary to fulfill a law’s actual intent. Doe v. Dept. of Health, 948 So.2d 803 (Fla. 2d DCA 2006) [32 Fla. L. Weekly D95a]. Courts must apply a statute as they find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation. Guilder v. State, 899 So.2d 412 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D860a].
Further, it is interesting to note that the statute does not say a violation renders an agreement void or unenforceable. What is said is that if there is a violation of Section 626.854(11)(c), Fla. Stat., the violation is punishable as provided under Section 626.8698, Fla. Stat., which sets forth administrative disciplinary remedies. Nothing in this statutory scheme includes a reference to voiding an assignment or cancelling any agreement allegedly in violation of these provisions. Kortum v. Sink, 54 So. 3d 1012 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D45a], aff’d, 95 So. 3d 85 (Fla. 2012) [37 Fla. L. Weekly S439a] (It is fundamental that judges do not have the power to edit statutes so as to add requirements that the legislature did not include). The remedies are in the administrative process. They are fines and/or licensing action.
A Floridian’s property rights are protected by Article I, Section 2 of the Florida Constitution, which provides in pertinent part:
SECTION 2. Basic rights. — All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law.
“To interpret the extent of property rights under the constitution, we must make a common sense reading of the plain and ordinary meaning of the language to carry out the intent of the framers as applied to the context of our times.” In re Advisory Opinion to the Governor Request of June 29, 1979, 374 So.2d 959, 964 (Fla. 1979). As our high court has said, “the phrase ‘acquire, possess and protect property’ in Article I, section 2, includes the incidents of property ownership: the ‘[c]ollection of rights to use and enjoy property, including [the] right to transmit it to others.’ ” Shriners Hospitals for Crippled Children v. Zrillic, 563 So.2d 64, 67 (Fla. 1990)(citing Black’s Law Dictionary 997 (5th ed. 1979) (emphasis in original).
Personal liberty and private property are fundamental rights in this state. The very purpose of law is to protect these rights. Paramount Enterprises v. Mitchell, 104 Fla. 407, 418, 140 So. 328, 332 (1932). And, as we have seen from the above, these rights necessarily include the right to transmit property to another. Doktor has a constitutional right to sell or transfer their own property to another, which in this case is Gables. To conclude otherwise would be to adopt an unconstitutional restriction upon Doktor’s rights to sell, transfer, or even give away their property as it deems fit. Nothing about Florida’s law regarding public adjuster compensation prohibits an owner of property from freely disposing of their property by sale, transfer, or gift. What American Integrity advocates is a construction of the subject statute and rule that would make the free and voluntary transfer of ownership illegal. That would be a direct violation of Article I, section 2, Fla. Const.
American Integrity wants this Court to judicially engraft a yet further regulatory requirement on public adjusters — a ban on receiving assignments from insureds. American Integrity argues that this Court must make its own public policy judgment to literally create an additional regulation — a regulation not set forth, or even intimated, in the statute and not set forth, or even intimated, in any administrative rule implementing that statute. American Integrity declares that this Court should ban assignments to public adjusters by judicial fiat — where the legislature has not done so.
There is nothing in the statute and rule that leads the Court to conclude the legislature intended to preclude post-loss assignments; it would have included a specific discussion of this subject in the statutory verbiage enacted, had it intended to do so. See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976) (“It is, of course, a general principle of statutory construction that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius. Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.”); Catalina West Homeowners Association, Inc. v. Federal National Mortgage Association, 188 So.3d 76 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D810a]; see also Moonlit Water Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996) [21 Fla. L. Weekly S41b] (“Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.”); cf. Haskins v. City of Ft. Lauderdale, 898 So. 2d 1120, 1123 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D849a] (“A basic canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’” (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)).
There are important public policy considerations involved in this area. But addressing issues of competing policy interests is the subject matter of legislative action. The subject statute and rule, as written, create no bar to Doktor’s assignment of its insurance claim to Gables, and American Integrity’s “void assignment” argument is not well founded. Should the Legislature wish to regulate assignments, it is certainly entitled to and should do so, if deemed appropriate. Bioscience West, Inc. v. Gulfstream Property and Cas. Ins. Co., 185 So.3d 638, 643 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D349a] (“We are mindful that there are competing policy considerations here. These policy considerations are for the legislature to decided, not our court.”); One Call Property Services, Inc. v. Security First Ins, Co., 165 So.3d 749 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. But the insurance company should not look to the courts to do something that the Legislature itself has not in the name of “public policy.” This Court will not rewrite one hundred years of law on assignments.
Defendant American Integrity Insurance Company of Florida’s Motion for Summary Judgment is DENIED and Plaintiff Gables Insurance Recovery, Inc. a/a/o Doktor, Inc.’s Cross Motion for Partial Summary Judgment on the Defendant American Integrity’s First Affirmative Defense is GRANTED.
