Tom Moody and Zachary Sonenblum Secure Dismissal with Prejudice for Client in Breach of Contract Case
Clausen Miller attorneys Tom Moody and Zachary Sonenblum obtained a dismissal with prejudice for the insurer in the 11th Judicial County Court in Miami-Dade County, Florida.
In December 2022, the plaintiff—a mitigation companying suing under an assignment of benefits from the insured—filed suit against the insurance provider alleging breach of contract to collect insurance benefits under a policy issued by the defendant after suffering a loss due to direct physical damage to their property in 2020. The plaintiff’s complaint also alleged a second cause of action for quantum meruit.
The defense filed a motion to dismiss the plaintiff’s complaint, arguing that the estimate and invoice supporting the purported assignment agreement were both post-dated and unexecuted. Citing Kidwell Grp. V. United Prop. & Cas, Ins. Co., the defense asserted that a post-dated estimate did not comply with Fla. Stat. 627.7152(2)(a)1. and 627.7152(2)(a)4. Furthermore, the plaintiff failed to provide a detailed service estimate, violating Fla. Sta. 627.7152(2)(a)4.
Plaintiff’s counsel attempted to argue that the AOB contained a “written, itemized, per-unit cost estimate” as required by the statute. However, the Judge agreed with Zach’s argument that the Court must follow the precedent of Florida’s Third, Fourth, and Fifth districts—holding that the “estimate” included within the assignment agreement was merely “a generic menu of services” or “general price list,” and was not a detailed estimate in compliance with Fla. Stat. 627.7152(2)(a)1. and 627.7152(2)(a)4, rendering the assignment invalid and unenforceable, as a matter of law.
Additionally, after the Judge declared the AOB to be invalid, Plaintiff’s counsel then attempted to argue that the Court should allow Plaintiff’s second count for quantum meruit to proceed. However, the Court was not persuaded by this argument because the insurer did not enter into any contract with the AOB Plaintiff.
Accordingly, the County Court granted the defense’s motion and dismissed both counts of the complaint with prejudice. The court held that the plaintiff both failed to state a cause of action and lacked standing and jurisdiction.
Tom Moody focuses his practice on civil-litigation defense, with an emphasis on first-party property disputes. He also has extensive experience successfully representing civil defendants in matters including insurer bad faith, commercial-premises liability, professional liability and malpractice, governmental-entity liability, pre-suit coverage analysis, admiralty and maritime claims, wrongful-death claims, and personal injury claims.
Zachary Sonenblum focuses his practice on civil litigation defense, with an emphasis in the area of first party property disputes. He is also experienced at insurance defense litigation.