Gables Ins. Recovery, Inc. v. Citizens Prop. Ins. Corp., s. 3D15-2320 & 3D16-87
| Decision Date | 20 September 2018 |
| Docket Number | Nos. 3D15-2320 & 3D16-87,s. 3D15-2320 & 3D16-87 |
| Citation | 261 So.3d 613 |
| Parties | GABLES INSURANCE RECOVERY, INC., etc., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. |
| Court | Florida District Court of Appeals |
Robert N. Pelier ; Billbrough & Marks and G. Bart Billbrough, Coral Gables, for appellant.
Franklin Legal Group and Jonathan Franklin, Miami, for appellee.
Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
Two homeowners suffered water damage to their homes, and after being unable to collect under their insurance policies, they assigned their claims against their insurance company to a public adjuster. This case is about whether the insureds validly assigned their claims such that the public adjuster had standing to bring breach of insurance contract claims on their behalves. The trial court in each homeowner's case granted summary judgment in favor of the insurance company, finding that the assignments could not confer standing because they violated state law ( Florida Statutes section 626.854(11)(b) (2014) )1 prohibiting public adjusters from entering into a contract that charged the homeowners more than twenty percent of the payments made on the insurance claims. We agree that one of the assignments, in case number 15-2320, violated the twenty percent cap, but find that there's a genuine issue of material fact whether the other assignment, in case number 16-87, violated the state statute. We, therefore, affirm the summary judgment in case number 15-2320, and reverse and remand in case number 16-87.
Case Number 15-2320: Ethel Matusow
Ethel Matusow's home suffered water damage. In November 2013, she reported the damage to Citizens Property Insurance Corporation, and Citizens denied the claim on December 12, 2013. Days later, Matusow hired Gables Insurance Recovery, Inc. as a public adjuster "to appraise, advise and assist" with her claim against Citizens. The public adjusting contract allowed Gables Recovery to "retain on [Matusow's] behalf the professional services of appraisers, estimators, engineers and other experts reasonably needed to assist in this matter and to further [ ] pursue the claim and corresponding payments." For its efforts, the contract called for Gables Recovery to be paid "20% of the gross amount of the collectible loss or damage recovered."
Ultimately, Gables Recovery was unable to reach a settlement with Citizens. Matusow, then, entered into a second contract with Gables Recovery, assigning the company her entire claim. The assignment consisted of two documents: a single, signed page entitled "Assignment of Insurance Rights and Benefits"; and a detailed, three-page contract entitled "Professional Services Engagement Agreement," setting forth the terms of the assignment, including Gables Recovery's compensation for collecting on the claim. Both documents were signed on March 21, 2014.
Under the professional services agreement, Matusow "engage[d] the professional services" of Gables Recovery "for collection and pursuit" of the assigned insurance claim. The professional services agreement required Gables Recovery "to proceed with all efforts to recover any and all amounts due, owing and or payable, it deem[ed] necessary, including the filing of the claim in court." And the agreement required Matusow "to cooperate in providing all necessary documentation to facilitate the pursuit of recovery on the claim" and "to provide access to ... information, statements, testimony at or before trial proceedings in the effort toward recovery of the funds due, owing and/or payable to [Matusow]."
As to compensation, the agreement provided that Gables Recovery would "retain 20% of all amounts collected for the proceeds pertaining to the coverage set forth in the insurance policy." Gables Recovery was also "entitled to recover, collect, retain and otherwise [was] entitled to receive any attorney fees and costs under 627.428 or any other applicable provision of state or federal law entitling the prevailing party to attorney fees and costs."
Gables Recovery, as Matusow's assignee, demanded that Citizens pay $21,130.63 under the policy to fix the water damage in Matusow's home. When Citizens refused to pay, Gables Recovery sued for breach of the insurance policy. Citizens answered and asserted as an affirmative defense that Gables Recovery had no standing because the Matusow assignment violated section 626.854(11)(b) – the twenty percent statutory compensation cap for public adjusters.
Citizens then moved for summary judgment based on the assignment's purported violation of the statutory cap, and Florida Administrative Code Rule 69B-220.201(4)(d) (). Gables Recovery responded that: (1) summary judgment was premature because it had not completed discovery; (2) the statutory caps did not apply because it was not "receiving compensation for work done as a public adjuster," and, instead, it was acting "from its assigned ownership of a post loss insurance claim"; and (3) section 626.854 does not prohibit the assignment of insurance claims to a public adjuster or other person or entity.
The trial court granted Citizens' summary judgment motion, denied rehearing, and entered judgment in its favor. This appeal followed.
Case Number 16-87: Christopher Difilippi
Like Matusow, Christopher Difilippi filed an insurance claim with Citizens when his house suffered water damage. The claim was reported in April 2013. Citizens assessed the loss at $22,352.03 and tendered $19,852.03. Still, on June 13, 2013, Difilippi hired Gables Recovery to adjust the claim for a ten percent fee. Other than the compensation amount, the contract was identical to the Matusow public adjuster contract.
Gables Recovery was unsuccessful in negotiating with Citizens, and just as Matusow did, he assigned his claim. The Difilippi assignment also consisted of two documents: the "Assignment of Insurance Rights and Benefits" executed on January 13, 2014; and the "Professional Services Engagement Agreement" executed on January 21, 2014. The two documents were identical to those signed by Matusow except for Difilippi's personal information, and the amount of compensation owed to Gables Recovery. Under the Difilippi agreement, Gables Recovery retained ten percent of any insurance proceeds recovered from Citizens, plus fees and costs.
Gables Recovery, as Difilippi's assignee, notified Citizens that the initial payment did not cover all the damage to Difilippi's home. When Citizens refused to pay the additional claim, Gables Recovery sued for breach of the insurance policy. Citizens answered and asserted as an affirmative defense that Gables Recovery had no standing because the Difilippi assignment violated section 626.854(11)(b), and Florida Administrative Code Rule 69B-220.201(4)(d).
Citizens moved for summary judgment on the same grounds. In response, Gables Recovery argued that its adjuster services had terminated by the time the assignment was executed; the statute did not prohibit the assignment of claims; and compensation under the assignment contract was less than the twenty percent statutory cap for payment of a claim to a public adjuster.
The trial court granted Citizens' summary judgment motion, and entered final judgment in favor of Citizens. Because the issues raised in the two cases are the same, we consolidated the Matusow and Difilippi appeals.
"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). We review orders granting summary judgment – and determinations that a contract is unenforceable and a party does not have standing – de novo. Id.; Citibank, N.A. v. Olsak, 208 So.3d 227, 229 (Fla. 3d DCA 2016) (); A.I.C. Trading Corp. v. Susman, 40 So.3d 769, 772 (Fla. 3d DCA 2010) ().
Because Gables Recovery was not a party to – or a third party beneficiary of – the insurance contracts between the insureds and Citizens, there is no dispute that the only way the company could have standing to sue on behalf of the homeowners was if the assignments were valid. If the assignments were not valid, then as a non-party to the insurance contracts Gables Recovery would have no right to sue. See White v. Exch. Corp., 167 So.2d 324, 326 (Fla. 3d DCA 1964) (). The issue, then, is whether the Matusow and Difilippi assignments were valid to give Gables Recovery standing to bring the breach of insurance contract claims on their behalf.
"In general, contracts are assignable unless forbidden by the terms of the contract, or an assignment would violate some rule of public policy or some statute, or unless they involve a question of personal trust and confidence." Hall v. O'Neil Turpentine Co., 56 Fla. 324, 47 So. 609, 612 (1908) (emphasis added); see also L.V. McClendon Kennels, Inc. v. Inv. Corp. of S. Fla., 490 So.2d 1374, 1375 (Fla. 3d DCA 1986) (); Kitsos v. Stanford, 291 So.2d 632, 634 (Fla. 3d DCA 1974) ()...
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