Kidwell Grp., LLC v. Am. Integrity Ins. Co. of Fla.

• Decision Date: 16 September 2022
• Docket Number: 2D21-205
• Citation: 347 So.3d 501
• Parties: The KIDWELL GROUP, LLC, d/b/a Air Quality Assessors of Florida, a/a/o Robert and Maureen Mucciaccio, Appellant, v. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

347 So.3d 501

The KIDWELL GROUP, LLC, d/b/a Air Quality Assessors of Florida, a/a/o Robert and Maureen Mucciaccio, Appellant,

v.AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Appellee.

No. 2D21-205

District Court of Appeal of Florida, Second District.

September 16, 2022

Chad A. Barr of Chad Barr Law, Altamonte Springs, for Appellant.

Kimberly J. Fernandes of Kelley Kronenberg, Tallahassee, for Appellee.

LaROSE, Judge.

The Kidwell Group, LLC, d/b/a Air Quality Assessors of Florida, a/a/o Robert and Maureen Mucciaccio (Air Quality), appeals a final order dismissing, with prejudice, its breach-of-contract complaint against American Integrity Insurance Company of Florida (AIIC). The trial court concluded that the assignment of benefits (AOB) that Air Quality obtained from the Mucciaccios was invalid and unenforceable under section 627.7152(2)(a), Florida Statutes (2019). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A).

Air Quality raises two issues on appeal.¹ First, whether a factual dispute precluded the trial court from determining that section 627.7152 governed the type of services Air Quality provided under the AOB. Second, whether section 627.7152 retroactively applied to this case. We affirm.

I. Background

AIIC insured the Mucciaccios’ home. The home sustained hurricane damage in 2017. In 2019, the Mucciaccios assigned postloss benefits in an AOB to Air Quality in exchange for certain services. Air Quality would

perform a non-emergency indoor environmental assessment and/or forensic engineering study .... to determine repairability, scope and/or categorization of water damage, testing for contamination including bacteria and/or mold in order to prepare a forensic engineering report and/or remediation protocol report that may be used to prescribe or confirm proper remediation procedures for the damaged property.

The AOB provided that "this non-emergency indoor environmental assessment in no way is meant to protect, repair, restore, or replace damaged property or to mitigate against further damage to the property."

After providing the services, Air Quality submitted its invoices to AIIC. AIIC refused to pay; Air Quality sued. Air Quality alleged in its complaint that the homeowners "suffered a loss due to water and/or mold, covered perils under the [AIIC] Policy," and Air Quality agreed to provide "reasonable and necessary assessment services to the [homeowners] relating to the loss" in exchange for the assignment of postloss insurance benefits. Air Quality attached the AOB to the complaint. It did not provide the insurance policy.

AIIC moved to dismiss Air Quality's complaint. AIIC argued that Air Quality lacked standing to sue because the language in the complaint and the AOB led to the "undisputed conclusion" that the AOB was an "assignment agreement" subject to section 627.7152. Specifically, AIIC observed that (i) the AOB did not include the required provisions under section 627.7152(2)(a),² and (ii) Air Quality failed to comply with the presuit notice requirement of section 627.7152(9)(a).³

Air Quality countered that the AOB was not an "assignment agreement." Although "the [assessment] report is certainly used in furtherance of repairs or replacements to a property," Air Quality maintained that "it does not actually fall within any of the enumerated service types within [ section] 627.7152" because the report "does not specifically protect, repair, restore, or replace property or ... mitigate against further damage to the property." Air Quality also argued that section 627.7152 could not apply to an AOB relating to an insurance policy in effect before enactment of the statute.

The trial court agreed with AIIC and dismissed the complaint. It concluded that the AOB was an "assignment agreement" that did not comply with section 627.7152(2)(a). It also noted that section 627.7152 applied because the AOB "was executed after the enactment of the statute."

II. Discussion

A. Types of Services

Air Quality argues that the complaint did not demonstrate that its services were governed by section 627.7152. The crux of its argument is that there was no basis for the trial court to determine that Air Quality provided any service to "protect, repair, restore, or replace property or to mitigate against further damage to the property."

AIIC, for its part, emphasizes that Air Quality conceded in the trial court that its assessment report is "certainly used in furtherance of repairs or replacements to a property." AIIC further asserts that, "regardless of what labels Air Quality applie[d] to its contract," the services were of the type enumerated in the statute.

We review the trial court's dismissal of a complaint for failure to state a claim de novo. See Payas v. Adventist Health Sys./Sunbelt, Inc. , 238 So. 3d 887, 890 (Fla. 2d DCA 2018). We review questions of statutory interpretation de novo, as well. McCloud v. State , 260 So. 3d 911, 914 (Fla. 2018).

In ruling on a motion to dismiss, the trial court is limited to the four corners of the complaint and its incorporated attachments; "all factual allegations ... [are] taken as true and all reasonable inferences ... drawn in the appellant's favor." Payas , 238 So. 3d at 890 (first citing Wallace v. Dean , 3 So. 3d 1035, 1042-43 (Fla. 2009) ; and then citing Toney v. C. Courtney , 191 So. 3d 505, 507 (Fla. 1st DCA 2016) ); Fla. Carry, Inc. v. Univ. of Fla. , 180 So. 3d 137, 148 (Fla. 1st DCA 2015). A motion to dismiss is "designed to test the legal sufficiency of a complaint to state a cause of action, not to determine issues of ultimate fact." Howard v. Greenwich Ins. Co. , 307 So. 3d 844, 849-50 (Fla. 3d DCA 2020) (quoting Behnam v. Zadeh , 132 So. 3d 951, 952 (Fla. 1st DCA 2014) ). Additionally, "[a]ffirmative defenses ‘cannot ordinarily be raised by motion to dismiss’ unless ‘the face of the complaint is sufficient to demonstrate the existence of the defense.’ " Wallisville Corp. v. McGuinness , 154 So. 3d 501, 504 (Fla. 4th DCA 2015) (quoting Ramos v. Mast , 789 So. 2d 1226, 1227 (Fla. 4th DCA 2001) ).

The "complaint must allege ‘a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.’ " Payas , 238 So. 3d at 890 (quoting Fla. R. Civ. P. 1.110(b)(2) ). In this case, Air Quality needed a valid AOB to maintain a breach-of-contract cause of action. See Gables Ins. Recovery, Inc. v. Citizens Prop. Ins. Corp. , 261 So. 3d 613, 627 (Fla. 3d DCA 2018) ("Matusow did not validly assign her claim, and without the assignment, Gables Recovery did not have standing to sue Citizens."); see also SFR Servs., LLC v. Indian Harbor Ins. Co. , 529 F. Supp. 3d 1285, 1298 (M.D. Fla. 2021) (explaining that "the issue of whether the AOB is valid is a merits question of contractual standing" that raises the issue of whether the plaintiff states a claim for relief).

The legislature enacted section 627.7152 in May 2019 "to regulate assignment agreements that seek to transfer insurance benefits from the policyholder to a third party." Total Care Restoration, LLC v. Citizens Prop. Ins. Corp. , 337 So. 3d 74, 75-76 (Fla. 4th DCA 2022) ; see also ch. 2019-57, §§ 1-6, Laws of Fla. "An assignment agreement that does not comply with [subsection (2)] is invalid and unenforceable." § 627.7152(2)(d).

An "assignment agreement" is

any instrument by which post-loss [sic] benefits under a residential property insurance policy or commercial property insurance policy, as that term is defined in [section] 627.0625(1), are assigned or transferred, or acquired in any manner, in whole or in part, to or from a person providing services to protect, repair, restore, or replace property or to mitigate against further damage to the property.^{[4 ]}

§ 627.7152(1)(b) (emphasis added). The legislature excluded some types of assignments that are not applicable here. See § 627.7152(11) ("This section does not apply to: (a) An assignment, transfer, or conveyance granted to a subsequent purchaser of the property with an insurable interest in the property following a loss; (b) A power of attorney under chapter 709 that grants to a management company, family member, guardian, or similarly situated person of an insured the authority to act on behalf of an insured as it relates to a property insurance claim; or (c) Liability coverage under a property insurance policy.").

Air Quality's AOB disclaimed that the assessment services were "meant to protect, repair, restore, or replace damaged property or to mitigate against further damage to the property." But, upon closer examination, we see that the AOB described the purpose of the assessment "to determine repairability, scope and/or categorization of water damage, testing for contamination including bacteria and/or mold in order to prepare a forensic engineering report and/or remediation protocol report that may be used to prescribe or confirm proper remediation procedures for the damaged property." Further, Air Quality alleged in its complaint that it agreed to provide "reasonable and necessary assessment services" relating to the damage.

We are hard-pressed to conclude that Air Quality's assessment was not a service that falls within the scope of an "assignment agreement." As AIIC observes, "[i]f it looks like a duck, and quacks like a duck, then it is a duck." See generally Villamorey, S.A. v. BDT Invs., Inc. , 245 So. 3d 909, 911 (Fla. 3d DCA 2018) ("This well-known abductive reasoning test posits: ‘If it looks like a duck, and quacks like a duck, then it is a duck.’ "). The AOB is an "assignment agreement" under section 627.7152, regardless of Air Quality's attempts to disguise it as something else.

Notably, the legislature did not exclude assessment services from its definition of "assignment agreement" or add such services to subsection (11)’s exclusion list. See § 627.7152(1)(b), (11). And, of course, "[i]t is not our role to act as the [l]egislature or to add words to the statute which do not exist." State v. Estime , 259 So. 3d 884, 889 ...