Clausen Miller Florida Attorneys Obtain Dismissals with Prejudice in Two Assignment of Benefits Cases

Clausen Miller’s Florida attorneys had a string of successes lately in obtaining two separate dismissals with prejudices for their clients.

Douglas Cohen and Christopher Sempier secured a dismissal with prejudice for the insurer in the County Court for the 11th Judicial Circuit in Miami-Dade County, Florida.

In August 2022, the plaintiff—a restoration company suing under an assignment of benefits from the insured homeowner—filed suit against the insurer alleging breach of contract to collect insurance benefits under a policy issued by the insurer after the insured’s home sustained water damage. The plaintiff’s complaint included an attached assignment agreement with a general price list of services offered, a subsequently-dated invoice, and a subsequently-dated estimate.

The defense filed a motion to dismiss the plaintiff’s complaint, arguing that the general price list of available services included in the assignment agreement was not an actual estimate of services to be provided, and that the subsequently dated invoice and estimate attached to the complaint could not have been contained in the assignment agreement at the time of execution. Citing to the cases Total Care Restoration, LLC a/a/o Yoel Bernal v. Citizens Property Ins. Co., 2023 Fla. App. Lexis 1724 (Fla. 3d DCA 2023) and Kidwell Grp. v. United Prop. & Cas. Ins. Co., 343 So. 3d 97 (Fla. 4th DCA 2022), Christopher argued that the assignment agreement relied upon by the plaintiff did not contain an estimate as required by § 627.7152(2)(a)4, Florida Statutes, because the general menu of services available included in the assignment agreement was not an actual estimate of services to be performed for the homeowner, and the plaintiff’s invoice and estimate were dated after the assignment agreement was executed.

The plaintiff’s counsel attempted to argue that because the AOB Statute requires service providers to provide updated repair estimates, the case should proceed to discovery to determine whether an earlier version of the estimate was created and provided to the homeowner at the time of execution of the assignment agreement. However, the Court agreed with Christopher’s argument that the court must apply the controlling precedent from the Third and Fourth Districts and dismiss the action with prejudice because the four corners of the complaint only showed an AOB agreement that did not contain the detailed estimate required by Fla. Stat. § 627.7152(2)(a)4, rendering the plaintiff’s assignment agreement invalid and unenforceable as a matter of law.

Melissa Burghardt and KeiErica Baker also achieved a dismissal with prejudice in the County Court of the 17th Judicial Circuit in Broward County, Florida.

In September 2022, the plaintiff filed a complaint against Melissa and KeiErica’s insurer client for breach of contract alleging a date of loss that occurred in July 2020. Following the loss, the insureds contracted with the plaintiff who performed remediation services and the insureds’ assigned certain benefits under the property insurance policy for the loss to the plaintiff. As exhibits to the complaint, plaintiff filed an assignment of benefits agreement executed on May 25, 2022, a one-page, one-line invoice dated May 25, 2022, and an estimate dated May 26, 2022.

Among other things, Melissa and KeiErica argued that the one-page, one-line invoice dated May 25, 2022 submitted by the plaintiff was in violation of Florida Statute §627.7152(2) as it did not constitute a written, itemized, per-unit cost estimate, citing precedent set in previous cases Kidwell Grp., LLC a/a/o/ Kivovitz v. United Prop. & Cas. Ins. Co., 343 So.3d 97, 98 (Fla. 4th DCA 2022) and Air Quality Experts Corporation (a/a/o/ Brian and Tricia Gerard) v. Family Security Insurance, 351 So.3d 32, 39 (Fla. 4th DCA 2022). Further, the estimate dated May 26, 2022, was dated one day after the assignment was executed, and was therefore also in violation of Florida Statute §627.7152(2).

The court ultimately agreed, finding the assignment invalid and unenforceable and the plaintiff therefore lacked standing to bring a lawsuit.

Douglas Cohen focuses his practice on complex coverage issues, good faith claim handling, ADR, and litigation involving first-party property insurance matters as well as a variety of liability coverage and defense matters.

Christopher Sempier’s practice focuses primarily on defending insurers in first-party property coverage cases throughout the central Florida region.

Melissa Burghardt concentrates her practice in first-party property disputes with experience in third-party coverage matters, premises liability, personal injury, and appellate law.

KeiErica Baker focuses her practice on first-party property disputes, representing both admitted and surplus-lines insurance carriers throughout Florida and has extensive experience in third-party coverage matters.