One Call Prop. Servs. Inc. v. Sec. First Ins. Co.

• Decision Date: 20 May 2015
• Docket Number: No. 4D14–424.,4D14–424.
• Citation: 165 So.3d 749
• Parties: ONE CALL PROPERTY SERVICES INC. a/a/o William Hughes, Appellant, v. SECURITY FIRST INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

165 So.3d 749

ONE CALL PROPERTY SERVICES INC. a/a/o William Hughes, Appellant

v.SECURITY FIRST INSURANCE COMPANY, Appellee.

No. 4D14–424.

District Court of Appeal of Florida, Fourth District.

May 20, 2015.

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.

Opinion

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.” 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.

“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 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.

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