One Call Property Services, Inc. a/a/o William Hughes v. Security First Insurance Company

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ONE CALL PROPERTY SERVICES INC. a/a/o WILLIAM HUGHES,

Appellant,

v.

SECURITY FIRST INSURANCE COMPANY,

Appellee.

No. 4D14-424

[ May 20, 2015 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Joseph George Marx, Judge; L.T. Case No.

502013CA010316.

Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Scott G. Millard of

Cohen Battisti, Attorneys at Law, Winter Park, for appellant.

Andrew A. Labbe and David J. Salmon of Groelle & Salmon, P.A.,

Tampa, for appellee.

Maria Elena Abate and Matthew C. Scarfone of Colodny, Fass,

Talenfeld, Karlinsky, Abate & Webb, P.A., Fort Lauderdale, for Amici

Curiae-Florida Property & Casualty Association and Florida Insurance

Council.

TAYLOR, J.

One Call Property Services (“One Call”) appeals a final order dismissing

a complaint that it filed, as an alleged assignee of an insured on a

homeowners’ policy, against Security First Insurance for breach of

contract. Because we conclude that the trial court erred in dismissing One

Call’s complaint based on the anti-assignment and loss payment

provisions of the insurance policy, we reverse.

One Call, as an alleged assignee of an insured on a homeowners’

insurance policy, brought a complaint for breach of contract against the

insurer, Security First, alleging that One Call performed emergency water

removal services for the insured following an August 2012 water event,

that the insured had assigned his right to insurance proceeds as payment,

and that Security First refused to reimburse it adequately for the services

provided. In the alternative, the complaint alleged that One Call had an

assignment in equity based on the services it rendered. Attached to the

complaint was a copy of the assignment, which stated in relevant part:

I, the Owner, hereby assign any and all insurance rights,

benefits, and proceeds under any applicable insurance

policies to One Call. I make this assignment in consideration

of One Call’s agreement to perform services and supply

materials and otherwise perform its obligations under this

contract, including One Call not requiring full payment at the

time of service. I intend to transfer all insurance rights to One

Call, including any causes of action which exist or may exist

in the future.

One Call did not attach a copy of the policy to the complaint. Instead,

One Call alleged that a copy of the policy would be obtained “through the

discovery process” and would “be filed in support of this action at that

time.” One Call also alleged compliance with all conditions precedent to

recovery under the policy.

Security First moved to dismiss, arguing that One Call lacked standing

to maintain the lawsuit and that the complaint failed to state a cause of

action. Security First advanced multiple arguments in support of its

position that the assignment was invalid under the terms of the policy and

Florida law. Attached to the motion to dismiss was a certified copy of the

policy.

One Call filed a written response to the motion to dismiss, arguing that

the motion impermissibly went beyond the four corners of the complaint

and asserting various reasons for upholding the validity of the assignment.

The trial court held a hearing on the motion to dismiss. At the hearing,

counsel for One Call focused on the argument that “the nonassignment

provision of the policy when read in conjunction with the loss payment

provision of the policy precludes the plaintiff, as an assignee, from bringing

a lawsuit to determine the amount of the loss or . . . what is due under the

policy.” The trial court ultimately granted the motion to dismiss on the

basis of this argument, noting that the same ruling had been made in a

similar case and that the court was “going to stay consistent.” The court

later entered a final order dismissing the complaint with prejudice. One

Call appealed the dismissal.

“A trial court’s order granting a motion to dismiss is reviewed de novo.”

2

Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011).

In ruling on a motion to dismiss, a trial court is limited to the four

corners of the complaint and its incorporated attachments. U.S. Project

Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So. 2d 74, 76 (Fla. 4th DCA

2003). But where the terms of a legal document are impliedly incorporated

by reference into the complaint, the trial court may consider the contents

of the document in ruling on a motion to dismiss. See Veal v. Voyager

Prop. & Cas. Ins. Co., 51 So. 3d 1246, 1249 (Fla. 2d DCA 2011) (rejecting

argument that the trial court erred by considering the contents of a

settlement agreement that was attached to a motion to dismiss: “[I]n this

case, the complaint refers to the settlement agreement, and in fact, Veal’s

standing to bring suit is premised on the terms of that agreement.

Accordingly, since the complaint impliedly incorporates the terms of the

agreement by reference, the trial court was entitled to review the terms of

that agreement to determine the nature of the claim being alleged.”).

Here, the trial court did not err in considering the contents of the

insurance policy that was filed in connection with the insurer’s motion to

dismiss. The complaint refers to the policy, and One Call’s standing to

bring suit is premised on an assignment of the policy. Accordingly,

because the complaint impliedly incorporates the policy by reference, the

trial court was entitled to review the policy in ruling on the motion to

dismiss.1

On the merits of the issue, One Call argues that the trial court erred as

a matter of law in dismissing its complaint based on the anti-assignment

and loss payment provisions of the policy. Stated succinctly, One Call

maintains that: (1) post-loss assignments of insurance proceeds are valid

under Florida law even if the policy contains an anti-assignment clause;

(2) the right of payment accrues on the date of the loss; and (3) the loss

payment provision does not preclude an assignment of benefits and has

never been construed to have any bearing on the issue of assignments.

1 While we agree that some of Security First’s arguments against the validity of

the assignment probably cannot be resolved on a motion to dismiss, we interpret

the trial court’s ruling as being based exclusively on Security First’s argument

concerning the anti-assignment and loss payment provisions of the insurance

policy. Moreover, in this case, in contrast to Nextgen Restoration Inc. v. Citizens

Property Ins. Corp., 126 So. 3d 1255 (Fla. 2d DCA 2013), the policy was placed in

the record, and it was incorporated by reference in the complaint, so the trial

court was permitted to consider it in ruling on the legal issue that formed the

basis for the dismissal.

3

“All contractual rights are assignable unless the contract prohibits

assignment, the contract involves obligations of a personal nature, or

public policy dictates against assignment.” Kohl v. Blue Cross & Blue

Shield of Fla., Inc., 988 So. 2d 654, 658 (Fla. 4th DCA 2008). Once an

assignment has been made, “the assignor no longer has a right to enforce

the interest because the assignee has obtained all rights to the thing

assigned.” Continental Cas. Co. v. Ryan Inc. E., 974 So. 2d 368, 376 (Fla.

2008) (citations and internal quotation marks omitted). By statute, an

insurance policy “may be assignable, or not assignable, as provided by its

terms.” § 627.422, Fla. Stat. (2012).

A chose in action2 arising out of contract is assignable and “may be

sued upon and recovered by the assignee in his own name and right.”

Spears v. W. Coast Builders’ Supply Co., 101 Fla. 980, 983, 133 So. 97, 98

(1931). “A claim on an insurance policy is a chose in action and is

assignable as such.” United Cos. Life Ins. Co. v. State Farm and Fire Cas.

Co., 477 So. 2d 645, 646 (Fla. 1st DCA 1985). Where there is no provision

forbidding assignment, “an insurance policy may be assigned as any other

chose in action.” Kohl v. Blue Cross & Blue Shield of Fla., Inc., 955 So. 2d

1140, 1143 (Fla. 4th DCA 2007).

Even when an insurance policy contains a provision barring

assignment of the policy, an insured may assign a post-loss claim. See W.

Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 224, 77 So. 209,

210-11 (1917) (“The policy was assigned after loss, and it is a well-settled

rule that the provision in a policy relative to the consent of the insurer to

the transfer of an interest therein does not apply to an assignment after

loss.”); Lexington Ins. Co. v. Simkins Indus., Inc., 704 So. 2d 1384, 1386

n.3 (Fla. 1998) (“[The insurer] concedes that an insured may assign

insurance proceeds to a third party after a loss, even without the consent

of the insurer.”); Accident Cleaners, Inc. v. Universal Ins. Co., 2015 WL

1609973, *2 (Fla. 5th DCA Apr. 10, 2015) (“[The insurer’s] argument

ignores that the right to recover is freely assignable after loss and that an

assignee has a common-law right to sue on a breach of contract claim.

Dating back to 1917, the Florida Supreme Court recognized that

provisions in insurance contracts requiring consent to assignment of the

policy do not apply to assignment after loss.”); Citizens Prop. Ins. Corp. v.

Ifergane, 114 So. 3d 190, 195 (Fla. 3d DCA 2012) (“Post-loss insurance

claims are freely assignable without the consent of the insurer.”); Better

Constr., Inc. v. Nat’l Union Fire Ins. Co., 651 So. 2d 141, 142 (Fla. 3d DCA

1995) (“[A] provision against assignment of an insurance policy does not

2 A “chose in action” is the “right to bring an action to recover a debt, money, or

thing.” Black's Law Dictionary (9th ed. 2009).

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bar an insured’s assignment of an after-loss claim.”); Gisela Invs., N.V. v.

Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984) (“A

provision in a policy of insurance which prohibits assignment thereof

except with consent of the insurer does not apply to prevent assignment

of the claim or interest in the insurance money then due, after loss.”); see

also NextGen Restor., Inc. v. Citizens Prop. Ins. Corp., 126 So. 3d 1255,

1256-57 (Fla. 2d DCA 2013) (stating in dicta: “[The anti-assignment

clause] does not appear to prevent an assignment of benefits or proceeds

owing by virtue of a claim arising under the policy. We do not reach the

validity of this specific assignment of insurance benefits, but we note that

other cases seem to permit assignees to bring similar actions.”).

Despite the well-settled case law allowing post-loss assignments of

insurance claims, Security First argues the assignment is invalid pursuant

to the policy’s anti-assignment and loss payment provisions. Security

First maintains that the assignment impermissibly sought to assign

unaccrued rights under the policy. Essentially, Security First argues that,

at the time the assignment was executed, the insured had nothing to

assign because at that time there were no benefits due and owing to the

insured under the policy.

Security First’s argument is based upon the loss payment clause of the

policy, which states:

Loss Payment. We will adjust all losses with you. We will pay

you unless some other person is named in the policy or is

legally entitled to receive payment. Loss will be paid upon the

earliest of the following:

a. 20 days after:

(1) We receive your written proof of loss and reach a

written, executed agreement or settlement with you

according to the terms of the written agreement; or

b. 60 days after we receive your written proof of loss and:

(1) There is an entry of a final judgment or, in the case of

an appeal from such judgment, within 60 days from and

after the affirmance of the same by the appellate court;

or

(2) Written executed mediation settlement with you

according to the terms of the written mediation

settlement; or

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c. Within 90 days after we receive notice of an initial claim

“reopened claim” or “supplemental claim” from you, we will

pay or deny such claim or a portion of the claim unless the

failure to pay such claim or portion of claim is caused by

factors beyond our control which reasonably prevent such

payment.

The issue we confront is whether payment must be due under the loss

payment provision before an insured may assign a post-loss claim under

the policy. We find that the loss payment provision “falls far short of

creating a contractual bar to assignment.” Cf. Kohl, 988 So. 2d at 658

(language stating that “[b]enefits will be paid directly to you” fell “far short

of creating a contractual bar to assignment”).

The Second District’s opinion in Curtis v. Tower Hill Prime Ins. Co., 154

So. 3d 1193 (Fla. 2d DCA 2015), while not directly on point, provides

useful guidance on this issue. There, the Second District rejected an

insurer’s argument that the insureds could not “maintain a breach-of-

contract suit until the time for payment under the loss-payment provision

has come and gone without payment.” Id. at 1196. The Second District

held that “[t]he loss-payment provision of the policy did not render the suit

premature; indeed, that provision expressly contemplated that there might

be a final judgment—presumably stemming from a lawsuit—before

payment was due.” Id.

Following the reasoning of Curtis, we hold that a standard loss payment

provision in an insurance policy does not preclude an assignment of a

post-loss claim, even when payment is not yet due. The loss payment

clause merely addresses the timing of the payment and expressly

contemplates that a lawsuit could occur before payment is due. We decline

to interpret it as affecting the validity of a post-loss assignment.

We therefore conclude that an assignable right to benefits accrues on

the date of the loss, even though payment is not yet due under the loss

payment clause. Cf. In re Surfside Resort & Suites, Inc., 344 B.R. 179, 189

(Bkrtcy. M.D. Fla. 2006) (“Once the Hotel had sustained property damage,

[the insurer] was already responsible for payment of whatever claim Debtor

asserted. Hence, once the damage affected the property, [the insurer’s]

obligation to pay originated.”); Antal’s Rest., Inc. v. Lumbermen’s Mut. Cas.

Co., 680 A.2d 1386, 1389 (D.C. 1996) (“Before loss, the insured has only

an inchoate or a contingent right to compensation, but after loss that right

has ‘become absolute’ and transferable without consent, since the

relationship of insured and insurer is now one of ‘creditor and debtor’ and

6

the policy [is] no longer ‘significant except as evidence of the existence and

amount of the debt.’”) (citation and internal alteration omitted); cf. also

Levy v. Travelers Ins. Co., 580 So. 2d 190, 191 (Fla. 4th DCA 1991) (stating

that an insurer’s obligation to pay first-party PIP benefits arose as the loss

was incurred, but also stating that the insurer “owed no contractual

obligation to pay first-party benefits” at the time of the accident and that

the cause of action to recover unpaid benefits accrued when the payment

was overdue).

Furthermore, even assuming an insured’s right to benefits does not

accrue until payment is due under the loss payment provision, there is no

reason why an insured could not assign an unaccrued right to benefits

under the policy, so long as the assignment took place after the loss. The

fact that a right is unaccrued does not necessarily prevent its assignment

before the right accrues. See Restatement (Second) of Contracts § 320

(“The fact that a right is . . . conditional does not prevent its assignment

before the condition occurs.”).

Nor can the assignment be invalidated on the theory that it attempts to

assign a contractual “duty to adjust” from the insured to a third party. In

arguing that the insured owes a duty to adjust the loss, the insurers rely

upon the language of the loss payment provision stating that “[w]e will

adjust the loss with you.” Grammatically, “we” is the subject of the

sentence and refers to the insurer, while “you” is the indirect object of the

sentence and refers to the insured. Although this language contemplates

the insured’s participation in the adjustment process, it does not impose

a duty on the insured to adjust the loss. In fact, a “duty to adjust” is not

among the insured’s duties in the section of the policy listing the insured’s

Duties After Loss.

An insured is not an “adjuster” and does not “adjust” losses. To

“adjust” means “[t]o determine the amount that an insurer will pay an

insured to cover a loss.” Black’s Law Dictionary (9th ed. 2009). An insured

does not determine the amount that the insurer will pay to cover the loss,

nor does an insured fit within any commonly recognized definition of

“adjuster.”

In short, as long as the insured complies with all policy conditions, a

third-party assignee may recover benefits on a covered loss. Cf. Shaw v.

State Farm Fire and Cas. Co., 37 So. 3d 329, 332 (Fla. 5th DCA 2010)

(stating that “[a]ssignment of a right to payment under a contract does not

eliminate the duty of compliance with contract conditions, but a third-

party assignee is not liable for performance of any duty under a contract”),

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disapproved on other grounds by Nunez v. Geico Gen. Ins. Co., 117 So. 3d

388 (Fla. 2013).

Turning to the practical implications of this case, we note that this

issue boils down to two competing public policy considerations. On the

one side, the insurance industry argues that assignments of benefits allow

contractors to unilaterally set the value of a claim and demand payment

for fraudulent or inflated invoices. On the other side, contractors argue

that assignments of benefits allow homeowners to hire contractors for

emergency repairs immediately after a loss, particularly in situations

where the homeowners cannot afford to pay the contractors up front.

Our court is not in a position, however, to evaluate these public policy

arguments. There is simply insufficient evidence in the record in this

case—or in any of the related cases—to decide whether assignments of

benefits are significantly increasing the risk to insurers. If studies show

that these assignments are inviting fraud and abuse, then the legislature

is in the best position to investigate and undertake comprehensive reform.

For the foregoing reasons, we reverse the dismissal of the complaint

and remand for further proceedings consistent with this opinion. We

emphasize, however, that we decline to reach any of Security First’s other

challenges to the assignment, including whether the assignment violates

the public adjuster statute or the statute governing insurable interests,3

or whether the assignment is a partial assignment that cannot be enforced

against Security First without its consent. The trial court should address

these issues in the first instance. See Stark v. State Farm Fla. Ins. Co., 95

So. 3d 285, 289 n.4 (Fla. 4th DCA 2012) (declining to apply the tipsy

coachman doctrine and explaining that an appellate court should not

ordinarily decide issues not ruled on by the trial court in the first instance).

Reversed and Remanded.

DAMOORGIAN, C.J., and MAY, J., concur.

* * *

3 For the trial court’s benefit on remand, we note that the Fifth District recently

held that a post-loss assignee is not required to have an insurable interest at the

time of loss. See Accident Cleaners, Inc. v. Universal Ins. Co., 2015 WL 1609973

(Fla. 5th DCA Apr. 10, 2015). The court explained that the legislature, in enacting

section 627.405, Florida Statutes, “did not state that it was displacing well-

settled common law of (1) the free assignability of contractual rights to recover or

(2) the inability for insurers to restrict post-loss assignments.” Id. at *2.

8

Not final until disposition of timely filed motion for rehearing.

9