Nextgen Restoration Inc. v. Citizens Prop. Ins. Corp.

• Decision Date: 15 November 2013
• Docket Number: No. 2D12–2990.,2D12–2990.
• Citation: 126 So.3d 1255
• Parties: NEXTGEN RESTORATION INC., a/a/o Marsha Panton, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
• Court: Florida District Court of Appeals

126 So.3d 1255

NEXTGEN RESTORATION INC., a/a/o Marsha Panton, Appellant,

v.CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.

No. 2D12–2990.

District Court of Appeal of Florida, Second District.

Nov. 15, 2013.

Earl I. Higgins, Jr., of Anthony–Smith Law, P.A., Orlando, for Appellant.

Kimberly A. Salmon of Groelle & Salmon P.A., Tampa, for Appellee.

ALTENBERND, Judge.

NextGen Restoration, Inc., appeals an order dismissing its complaint against Citizens Property Insurance Corporation. We reverse.

According to the complaint, a home insured by Citizens was damaged by a water event on May 9, 2011. NextGen allegedly entered into a remediation contract with the homeowner to repair the damage. In consideration for this contract, the homeowner executed a written assignment of benefits that assigned “any and all insurance rights, benefits, and proceeds” under Citizens' policy of insurance. When Citizens paid only a part of NextGen's bill, NextGen filed a lawsuit alleging breach of contract.

Citizens initially responded to the action by filing a motion to dismiss. The motion to dismiss alleged only that NextGen had failed to reference the language of the insurance policy or attach a copy of that contract. Several months later, before any hearing on the motion to dismiss, Citizens filed an answer to the complaint. It admitted that it had issued a policy with an identified number insuring the relevant property, and it also admitted that the property had sustained water damage. As a third affirmative defense, it claimed that “the basis for recovery arises from an invalid assignment.” It raised other defenses, quoting the language of the relevant insurance policy.

The trial court held a hearing on the motion to dismiss about two months after the answer had been filed. Counsel for Citizens appeared in person, and counsel for NextGen appeared by telephone. Although counsel for Citizens began its argument by addressing the ground for dismissal in its motion, i.e., the need to attach the insurance contract to the complaint, it shifted to arguing about the problems created by remediation contractors and the assignments they receive. Oddly, counsel for Citizens provided to the trial court a copy of the insurance policy to establish that the policy contained an anti-assignment clause. Counsel explained that she was going to “digress a moment” and then explained that Citizens was experiencing “an absolute crisis” with remediation companies. Counsel explained that Citizens “desperately” needed rulings and case law on these assignments and orally moved to dismiss the complaint with prejudice.

Counsel for NextGen responded, explaining that the hearing had been set on a motion to dismiss for failure to attach an insurance policy. He explained that he did not have a copy of the insurance policy that Citizens had just provided to the judge. He asked the court to limit the hearing to the motion.

After further argument, the court suggested that “it sounds as though, really, the motion to dismiss is based on a standing issue.” The court concluded that the assignment did not give NextGen standing. While counsel for NextGen continued to argue that the court had gone beyond the motion to dismiss, the participants continued to discuss the...