26 Fla. L. Weekly Supp. 968a
Online Reference: FLWSUPP 2612BISCInsurance — Homeowners — Standing — Assignment clearly and unambiguously transfers insured’s rights under policy to plaintiff — Assignment of benefits on homestead property is ineffective where assignment was not fully executed in manner prescribed by sections 689.01 and 689.111
JD RESTORATION, INC., (a/a/o Christian Bischoff, et al.) Plaintiff, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 16-CA-11733 AE MB. April 17, 2017. Jeffrey D. Gillen, Judge. Mordechai Breier, Susan Fox and Gary Proctor, for Plaintiff. Todd Brant and Robert Thaxton, for Defendant.
ORDER GRANTING UNIVERSAL’S MOTION TO DISMISS
THIS MATTER came before the Court March 29, 2017 for hearing on the motion filed January 31, 2017 by UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY [hereinafter, “Defendant”] seeking dismissal of the complaint by JD RESTORATION INC. [hereinafter, “Plaintiff”]. Plaintiff filed its complaint alleging it is assignee of Defendant’s insureds for insurance-benefit proceeds. Defendant argues that the assignment which is attached to Plaintiffs complaint is legally insufficient in that it is (1) not clear and unambiguous and (2) unsecured. The Court carefully read the parties submissions, listened attentively to the lawyers’ arguments and did its own limited legal research. For the reasons set forth below, the Court grants Defendant’s motion.
It is elementary that a defendant moving to dismiss a complaint faces a heavy burden in that
the function of a motion to dismiss a complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action. The motion admits as true all well pleaded facts as well as all reasonable inferences arising from those facts. The allegations must be construed in the light most favorable to plaintiffs and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause. Further, the trial court’s gaze is limited to the four corners of the complaint. Finally, the motion must be decided on questions of law, only, and matters not shown on the face of the complaint can not properly be raised on a motion to dismiss.
William G. Poulos, et al. v. Kenneth F. Vordermeier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976). See also Mitleider v. Brier Grieves Agency, Inc., 53 So. 3d 410 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D346a]. Accordingly, “[i]n order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader.” Taylor v. City of Riviera Beach, 801 So. 2d 259, 262 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2598a] [internal citations omitted]. When an exhibit attached to a complaint conflicts with the allegations of the complaint, the language of the exhibit controls. See K.R. Exchange v. Fuerst, Humphrey, 48 So. 3d 889, 894 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2317a].
Defendant argues that Plaintiff lacks standing because the document attached to Plaintiff’s complaint, which is entitled “Assignment of Insurance Benefits,” “is a contract for services between Insured and Plaintiff, but fails to clearly and unambiguously transfer the Insured’s rights under the Policy to Plaintiff.” That argument flies in the face of the express, crystal clear and utterly unambiguous language of the assignment which in no way conflicts with the allegations in the complaint. The Court, therefore, rejects it.
Next Defendant argues that the assignment is, de facto, a conveyance of homestead property and therefore, because it was not executed before witnesses as if it were a recordable deed, it is invalid. In support of this argument, Defendant relies on Quiroga v. Citizens Property, 34 So. 3d 101 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D767a]. That succinct opinion, in its entirety, says:
This is an appeal from an order denying the law firm of Katzman Garfinkel and Rosenbaum’s motion to impress a charging lien on the homeowner’s insurance proceeds for damages caused by two hurricanes. The Katzman law firm secured the proceeds for the benefit of its client and policy insured, Jesse Quiroga, in appreciation for which Quiroga not only terminated the law firm’s contingent fee representation of him, but also sought to shield himself from any responsibility to compensate his counsel by claiming the insurance proceeds are exempt homestead property, not subject to attachment by means of a charging lien. See Art. X, § 4(a), Fla. Const.
The parties do not dispute the hurricane-damaged property is constitutionally exempt homestead property. See Cutler v. Cutler, 994 So. 2d 341, 343 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2103a] (“To qualify for protection under Article X, section 4 of the Florida Constitution, a parcel of property must meet constitutionally defined size limitations and must be owned by a natural person who is a Florida resident who either makes or intends to make the property that person’s residence.”). In the event a homestead is damaged through fire, wind or flood, the proceeds of any insurance recovery are imbued with the same privilege. Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201, 203-04 (Fla. 1962). Because Quiroga did not and, as a matter of public policy in this State, cannot through an unsecured agreement, such as the contingent fee agreement in this case, enter into an enforceable contract to divest himself from the exemptions afforded him through Article X, section 4(a), see Chames v. DeMayo, 972 So. 2d 850, 853 (Fla. 2007) [32 Fla. L. Weekly S820a], this Court is compelled to affirm the order under review, the equities of the matter notwithstanding. See Pub. Health Trust of Dade County v. Lopez, 531 So. 2d 946, 951 (Fla. 1990) (“The homestead protection has never been based upon principles of equity.”) (citing Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328, 330 (Fla. 1940)); Pierrepont v. Humphreys (In re Newman’s Estate), 413 So. 2d 140, 142 (Fla. 5th DCA 1982) (“The homestead character of a piece of property . . . arises and attaches from the mere existence of certain facts in combination in place and time.”).
Affirmed.
Interestingly, as of the writing of this order, Quiroga has not been cited in any subsequent opinion or other document. While this Court perceives significant distinctions between the attorney-fees-agreement cases1 and the instant matter where the beneficiaries of the constitutionally-protected homestead-rights have acted to waive that protection to a limited extent, it nevertheless concludes that the Florida constitution as interpreted and applied by the appellate courts of this State requires granting Defendant’s motion.2 Therefore, expressing similar reluctance to that which the district court did in the Quiroga opinion, and being constrained to follow that opinion as binding precedent in the absence of a conflict with the Fourth District, another district or the Supreme Court, this Court must find that the proceeds from Defendant’s casualty policy in favor of its insureds are imbued with the same insulation as the property itself enjoys, and that insulation can be stripped or avoided only by proper procedure to create a secured interest in the insurance proceeds in favor of Plaintiff. Therefore, the clear and unambiguous assignment, to be effective, must be fully executed by the Bischoffs in the manner prescribed by §§689.01 and 689.111, Fla. Stat.3
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1See Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007) [32 Fla. L. Weekly S820a].
2See Orange Brevard Plumbing v. LaCroix, 137 So. 2d 201, 203-204 (Fla. 1962) where the Supreme Court, citing one of its earlier decisions, explained:
The court employed similar reasoning and reached a similar result in a subsequent case where the question raised was whether the proceeds of a fire insurance policy due to be paid for destruction of the homestead by fire are exempt from claims of creditors. It was held in Kohn v. Coats, 103 Fla. 264, 138 So. 760, that such proceeds were exempt and were not subject to garnishment. The court in that case recognized that it was committed to a liberal interpretation of the homestead law and stated:
“The reason for the rule [exempting fire insurance proceeds] is that the homestead was provided for the benefit of the exemptor’s family, and it may be insured to protect them from loss. The insurance is intended to restore the property in case it is destroyed by fire; those contracting with the exemptor are on knowledge of this fact, and to hold that creditors could seize the proceeds of the insurance policy would give them an advantage they never contemplated would deprive the insured of the means provided to take the place of and restore his homestead.”
3While this Court is not unmindful of the potential exigencies inherent in leak-repair circumstances, the Court is cognizant of two things. First, there is no authority of which this Court is aware which allows for exception to the full-execution requirement. Second, the lawyers made it clear that the leak in this case had been stopped and Plaintiff provided water-damage remediation-services, not plumbing services.
