# RR Restoration LLC v. Empire Indemnity Insurance Company

> District Court, M.D. Florida · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10115609

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

RR RESTORATION, LLC, a/a/o
Amblewood Condominium
Association, Inc.,

Plaintiff,

v. Case No: 2:21-cv-866-JES-NPM

EMPIRE INDEMNITY INSURANCE
COMPANY,

Defendant.

OPINION AND ORDER
This matter comes before the Court on defendant Empire’s
Motion To Dismiss (Doc. #86) filed on March 5, 2024. Plaintiff
RR Restoration, LLC filed Plaintiff’s Response To Defendant’s
Motion To Dismiss (Doc. #90) on March 25, 2024. For the reasons
set forth below, the motion is denied as to dismissal, but the
case is remanded to state court for lack of subject matter
jurisdiction in federal court.
I.
On the eve of trial, defendant Empire Indemnity Insurance
Company (Defendant or Empire) seeks to dismiss this case for lack
of subject matter jurisdiction. More specifically, Empire argues
that RR Restoration, LLC (Plaintiff or RR Restoration) lacks
standing to sue Empire because it is not the insured under the
Policy issued by Empire, a party to Empire’s insurance contract,
nor did it acquire any rights under a purported assignment attached
to the Complaint because those documents do not constitute an
assignment of rights. RR Restoration responds that the attached

documents do constitute a valid assignment of benefits, and in any
event, Empire lacks standing to challenge the validity of that
assignment.
II.
A brief procedural history is in order. Empire issued a
surplus lines commercial insurance Policy to Amblewood Condominium
Association, Inc. (Amblewood) covering nine buildings in its
condominium complex. On or about September 10, 2017, while the
Policy was in effect, Hurricane Irma hit the area and allegedly
caused substantial damage to the Amblewood buildings. Amblewood
filed a claim with Empire on September 18, 2017.
On June 17, 2019 Amblewood and RR Restoration signed a “Work

Authorization Agreement” and an “Addendum.” Plaintiff
characterizes these documents as an “assignment of benefits,”
while Empire sees them as simply an agreement to enter an
assignment which was never actually done.
On October 8, 2021, RR Restoration, purporting to be the
assignee of Amblewood, filed a one-count breach of contract
complaint against Empire in state court in Collier County, Florida.
On November 19, 2021, Empire filed a Notice of Removal (Doc. #1)
removing the case to federal court. The Complaint (Doc. #3)
alleged that after the loss caused by Hurricane Irma, Amblewood
“assigned certain benefits by and through the Policy to Plaintiff.
Plaintiff, as assignee, is entitled to such benefits up to the

amount of services rendered or to be rendered by Plaintiff in
connection with the Claim. A copy of the assignment of benefits
is attached hereto as Exhibit B (hereinafter the “AOB”).” (Doc.
#3, ¶ 14.) Attached as Exhibit B was the June 17, 2019 “Work
Authorization Agreement” and the “Addendum.” (Doc. #3-2.)1
Empire’s Answer (Doc. #20) “[a]dmitted that Amblewood
purported to make an assignment of benefits to RR Restoration.
Denied as to any implication that the assignment is valid. Without
knowledge that Exhibit B represents a complete and authentic copy
of the assignment and, therefore, denied.” (Id. at ¶ 14.) In its
current motion to dismiss, Empire argues that “the Complaint
falsely alleges Amblewood assigned its rights and benefits under

the insurance policy to Plaintiff.” (Doc. #86, p. 5.) This
aspect of the Complaint is false, Empire asserts, because neither
the Work Authorization Agreement nor the Addendum “expressly
authorizes Plaintiff to pursue legal action against Empire.” (Id.
at 6.) As a result, Empire argues, these documents do not confer
standing for RR Restoration to sue Empire for benefits under the

1 Though Plaintiff labeled this exhibit as “Exhibit B”, the
Court will cite each exhibit herein by the numerical number
assigned to it by the Court’s CM/ECF system—in this case, Exhibit
2.
insurance Policy. (Id.) This leaves the federal court without
subject matter jurisdiction since standing is an issue with
jurisdictional significance.

III.
“Federal courts are courts of limited jurisdiction.” Home
Depot U.S.A., Inc. v. Jackson, 587 U.S. ––––, 139 S. Ct. 1743,
1746 (2019) (internal quotation marks omitted). “It is to be
presumed that a cause lies outside this limited jurisdiction”
unless the party asserting jurisdiction proves otherwise.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994).
Article III of the Constitution limits the jurisdiction of
federal courts to “[c]ases” and “[c]ontroversies.” U.S. Const.
art. III, § 2. “[T]hat means the plaintiff must have standing (a
personal stake in the matter) . . . .” Keister v. Bell, 29 F.4th

1239, 1249 (11th Cir. 2022) (citations omitted). Article III
standing “is a threshold jurisdictional question.” Muransky v.
Godiva Chocolatier, Inc., 979 F.3d 917, 923 (11th Cir. 2020) (en
banc). At an “irreducible constitutional minimum,” the standing
doctrine requires that a plaintiff have “(1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S.
330, 338 (2016) (citation omitted). See also Lewis v. Governor
of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019)(en banc). “Standing
asks, in short, whether a particular plaintiff even has the
requisite stake in the litigation to invoke the federal ‘judicial

Power’ in the first place.” Gardner v. Mutz, 962 F.3d 1329, 1337
(11th Cir. 2020).
Because standing is a jurisdictional matter, it cannot be
sidestepped. Id. at 1338-43. And “[q]uestions of the litigants’
standing may be raised at any time . . . .” Smith v. Miorelli, 93
F.4th 1206, 1211 (11th Cir. 2024) (citing Williams v. Reckitt
Benckiser LLC, 65 F.4th 1243, 1251 (11th Cir. 2023)).
“Article III standing must be determined as of the time at
which the plaintiff's complaint is filed.” Focus on the Family
v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275–76 (11th
Cir. 2003). When ruling on a facial challenge to standing, the
Court must accept as true all material factual allegations of the

complaint and construe them in favor of the complaining party.
Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1228 (11th Cir.
2019). The Court limits consideration to the facts contained in
the pleadings and attached exhibits. Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007). At the pleading
stage, “general factual allegations” showing the elements of
standing will suffice. MSPA Claims 1, LLC v. Tenet Florida, Inc.,
918 F.3d 1312, 1318 (11th Cir. 2019).
The normal remedy for a lack of subject matter jurisdiction
is dismissal without prejudice. Wiand v. ATC Brokers Ltd., 22-
13658, 2024 WL 1163902, at *6 (11th Cir. Mar. 19, 2024)(“Because

standing is a threshold jurisdictional question, the district
court was not empowered to reach any merits question. And
ordinarily, absent standing, a court must dismiss the plaintiff's
claim without prejudice.” (citations and punctuation omitted));
Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524
F.3d 1229, 1232 (11th Cir. 2008)(“A dismissal for lack of subject
matter jurisdiction is not a judgment on the merits and is entered
without prejudice.”) Here, however, the case was removed from
state court to federal court, so the proper remedy would be to
remand the case back to state court. See 28 U.S.C. § 1447(c) (“If
at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be

remanded.”); Mack v. USAA Cas. Ins. Co., 994 F.3d 1353, 1359 (11th
Cir. 2021)(collecting cases).
IV.
To establish standing for Article III purposes, RR
Restoration must show that it held a legally protected interest in
the insurance Policy which was injured by Empire. “[A] plaintiff
must have standing under both Article III of the Constitution and
applicable state law in order to maintain a [breach of contract]
cause of action.” Ave. CLO Fund Ltd. v. Bank of Am., NA, 709 F.3d
1072, 1077–78 (11th Cir. 2013) (quoting Mid–Hudson Catskill Rural
Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 173 (2d
Cir. 2005)). To resolve the current motion, the Court only need

determine whether RR Restoration has standing under Article III of
the Constitution, although this determination is informed by
Florida substantive law.2
“A person not a party to nor in privity with a contract has
no right to enforce it.” Gallagher v. Dupont, 918 So. 2d 342, 347
(Fla. 5th DCA 2005). As the insured under the Policy, Amblewood
allegedly suffered an injury-in-fact. RR Restoration has standing
if it was validly assigned the insurance benefits under the Policy,
the right to sue Empire for the benefits, or both. MSPA Claims
1, 918 F.3d at 1318–19.
RR Restoration argues that Empire lacks standing to challenge
the validity of the assignment. This is certainly incorrect as

to Article III standing, since RR Restoration is attempting to
compel Empire to pay it millions of dollars based on the existence
and validity of the assignment. This clearly allows Empire to
challenge the assignment.

2 “In diversity cases, we are required to apply the
substantive law of the forum state; here, Florida.” Pelaez v. Gov't
Employees Ins. Co., 13 F.4th 1243, 1249 (11th Cir. 2021)(citation
omitted.) Additionally, the Work Authorization Agreement provides
that it “shall be governed by the laws of the state in which the
services were rendered.” (Doc. # 3-2, ¶ 8.) In this case—
Florida.
The parties dispute whether the pertinent documents
constitute a valid assignment. The Complaint attaches and relies
upon the Work Authorization Agreement and the Addendum, asserting

that these documents constitute an assignment of benefits to RR
Restoration. The Work Authorization Agreement (Doc.#3-2) is a
two-page form document signed by both parties. It describes “The
Work” to be done as “[a]ll permanent repairs to the Property
resulting from Hurricane Irma damage . . . .” (Id.) “The Price”
is set at “the total insurance proceeds (“Proceeds”) collected
from the insurance policy(s) for the Work.” (Id.) The parties
then agreed to items set forth in eight paragraphs, of which only
the fourth mentions an “assignment”: “Where and to the extent
allowed by law, the Customer agrees to give the company its
assignment of benefits rights to its insurance policy(s) and allow
the insurance carrier to make payments to the insured. All

payments will be held by the insured in a hurricane account and
payed [sic] in full to RR Restoration as per work is completed on
a percentage basis.” (Id. at ¶ 4.)
Under Florida law, an “assignment” “is defined as a voluntary
act of transferring a right or an interest.” Bioscience W., Inc.
v. Gulfstream Prop. & Cas. Ins. Co., 185 So. 3d 638, 641 (Fla. 2d
DCA 2016). As explained by a Florida appellate court:
“An assignment has been defined as ‘a transfer
or setting over of property, or of some right
or interest therein, from one person to
another.’” Sidiq v. Tower Hill Select Ins.
Co., 276 So. 3d 822, 825 (Fla. 4th DCA 2019)
(quoting Cont'l Cas. Co. v. Ryan Inc. E., 974
So. 2d 368, 376 (Fla. 2008)). Once an interest
has been assigned, “the assignor no longer has
a right to enforce th[at] interest because the
assignee has obtained ‘all rights to the thing
assigned.’” Id. (quoting Cont'l Cas. Co., 974
So. 2d at 376).
Brown v. Omega Ins. Co., 322 So. 3d 98, 100–01 (Fla. 4th DCA 2021).
At the time relevant to this case, Florida law allowed an
insured to assign the right to benefits under a contract of
insurance.3 Schuster v. Blue Cross & Blue Shield of Florida, Inc.,
843 So. 2d 909, 911–12 (Fla. 4th DCA 2003). However, an assignment
of benefits must be specific, since an assignment can be tailored
to the work that a contractor performs, rather than all of the
rights under the insurance contract. Salyer v. Tower Hill Select
Ins. Co., 367 So. 3d 551, 554 (Fla. 5th DCA 2023)(citations
omitted); Sidiq v. Tower Hill Select Ins. Co., 276 So. 3d 822, 827
(Fla. 4th DCA 2019). This would allow both an insured and an
assignee to have a cause of action against the insurer.
The plain and unambiguous language of the Work Authorization
Agreement shows that it is not an assignment at all, but rather
only an agreement to make an assignment in the future. There are

3 Recently, “[f]or insurance policies issued after January 1,
2023, the Florida Legislature has declared all assignments to be
void, invalid, and unenforceable.” Kidwell Group, LLC v. SafePoint
Ins. Co., 4D2022-2806, 2023 WL 8792662, at * 2 n.2 (Fla. 4th DCA
Dec. 20, 2023)(citing Fla. Stat. § 627.7152(13)(2023)).
no words of assignment or transfer. The documents do not disclose
what interest is transferred and what is not transferred. While
the Complaint characterizes the two documents as an assignment,

this is contradicted by the documents themselves, which control.
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016)(“A
district court can generally consider exhibits attached to a
complaint in ruling on a motion to dismiss, and if the allegations
of the complaint about a particular exhibit conflict with the
contents of the exhibit itself, the exhibit controls.”)
The Addendum confirms that no assignment was intended or given
by these two documents. The first of the nine-paragraphs in the
Addendum states: “Amblewood will sign an Assignment of Benefits to
R&R Restoration.” (Doc. #3-2, ¶ 1.) No such signed document is
referred to or attached to the Complaint. The Addendum further
provides that only Amblewood will have the authority to accept or

reject an insurance settlement offer. (Id. at ¶¶ 4-6.) In short,
the two documents do not purport to transfer anything to RR
Restoration, and without a valid assignment RR Restoration lacks
Article III standing. The case will therefore be remanded to
state court.
The Court does not purport to bind the state court on any
issue. The state court will not have an Article III issue, and
state law appears to treat the lack of standing as a waivable
affirmative defense. Schuster, 843 So. 2d at 912 (“There is no
question that lack of standing is an affirmative defense that must
be raised by the defendant and that the failure to raise it
generally results in waiver.”) An assignment of benefits may or
may not deprive the insured of standing to assert its claim for
breach of contract and the right to sue for damages. Brown, 322
So. 3d at 102.
Accordingly, it is hereby
ORDERED :
1. Empire’s Motion To Dismiss (Doc. #86) is granted to the
extent that it is determined RR Restoration has no Article
ITI standing to sue Empire and denied to the extent that
Empire requests dismissal of the Amended Complaint.
Finding no subject-matter jurisdiction, the case is
remanded to the Twentieth Judicial Circuit Court, in and
for Collier County, Florida, for all further proceedings.
3. The Clerk shall terminate all pending motions as moot and
close the file.
DONE and ORDERED at Fort Myers, Florida, this 28th day
of March, 2024.

□ —_ Afr
: le hy ZC. AK Zo0b
ade E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies: Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115609. Public record. Not legal advice.