QBE Specialty Ins. Co. v. United Reconstruction Grp., Inc.

• Decision Date: 21 July 2021
• Docket Number: No. 4D21-472,4D21-472
• Citation: 325 So.3d 57
• Parties: QBE SPECIALTY INSURANCE COMPANY, Appellant, v. UNITED RECONSTRUCTION GROUP, INC., a/a/o Fallon Jallali, Appellee.
• Court: Florida District Court of Appeals

325 So.3d 57

QBE SPECIALTY INSURANCE COMPANY, Appellant,

v.UNITED RECONSTRUCTION GROUP, INC., a/a/o Fallon Jallali, Appellee.

No. 4D21-472

District Court of Appeal of Florida, Fourth District.

[July 21, 2021]

Robert T. Vorhoff, Joseph Gelli and Brian A. Oltchick of Garrison, Yount, Forte & Mulcahy, L.L.C., Tampa, for appellant.

Earl I. Higgs, Jr. of Higgs Law, P.A., Orlando, for appellee.

Damoorgian, J.

QBE Specialty Insurance Company ("QBE") appeals the county court's entry of final summary judgment in favor of United Reconstruction Group, Inc. ("United"). The court entered judgment in United's favor on the basis that QBE breached the policy's "Loss Payment" provision by failing to remit the insurance proceeds to United, the assignee under an assignment of benefits agreement purportedly executed by the insured, Fallon Jallali ("the insured"). On appeal, QBE argues the court erred in entering final summary judgment in United's favor because genuine issues of material fact remain as to whether the insured executed, or caused to be executed, the assignment. We agree with QBE and reverse.

The relevant facts in this case, as gleaned from the record, are as follows. The insured owns a home insured by QBE. While the subject policy was in effect, the insured's home sustained water damage. That same day, United was hired to perform emergency water mitigation services on the home. In exchange for its services, United had executed a "Contract for Services, Assignment of Benefits, Direct Payment Authorization, and Hold Harmless Agreement" ("AOB agreement").

The AOB agreement's terms were as follows:

I hereby assign all rights and benefits in relation to such Services to [United] completely and without reservation. I authorize and instruct all insurance company(ies) that may be contractually obligated to provide benefits and/or payments to me for such Services to pay [United] directly as sole payee. I authorize and instruct any payments issued by the insurance company for the Services to be sent to [United] directly. In the event [United] does not receive payment in full for its Services, I hereby assign any and all causes of action, including compromising, litigating, settling or otherwise resolve said claim exclusively as [United] sees fit in its sole discretion. I understand, agree, and waive any right or claim of interest that I may possess to interfere with [United's] exclusive discretion in this regard. I understand that whatever amount [United] is unable to collect from the insurance is ultimately my responsibility.

The AOB agreement included a "Customer Print Name" line and a "Customer Signature" line. The "Customer Print Name" line was left blank, but the "Customer Signature" line included a signature.

Upon completing the work, United sent QBE a copy of the AOB agreement along with its invoice in the amount of $10,897.91. After receiving both documents, QBE's claims adjuster contacted United directly to negotiate the invoice amount. Based on those discussions, United agreed to reduce the invoice amount to $8,603.20. QBE thereafter sent a check for the negotiated amount to the insured, who promptly endorsed and cashed the check.

United thereafter sued QBE for breach of contract, arguing that by remitting the insurance proceeds to the insured rather than to United, QBE breached the policy's "Loss Payment" provision. That provision states, in relevant part, that QBE will pay the insured "unless some other person is named in the policy or is legally entitled to receive payment ." (emphasis added). As the assignee under the written AOB agreement, United maintained it was the only entity legally entitled to receive payment. Alternatively, United argued it was entitled to receive payment because it had "an assignment in equity based upon the services it performed at the insured's property." QBE answered the complaint and raised as an affirmative defense that the AOB agreement was invalid because it was not signed by the insured. QBE later insinuated that the insured's father, who is not a named insured under the policy, signed the document.

United ultimately moved for summary judgment. In support of its motion, United filed the affidavit of Lagos Nagy, one of its owners. In relevant part, Mr. Nagy attested that United was hired to perform water mitigation services and that "the insured executed, or caused to be executed, the assignment of benefits under the policy to United for the services it performed. Instead of collecting an upfront payment from the insured, United accepted the AOB and direct payment authorization to perform services at the property." United also filed the deposition transcript of QBE's corporate representative. In relevant part, the corporate representative confirmed that, prior to issuing the check, QBE received a copy of the AOB agreement and United's invoice; QBE's claims adjuster contacted United directly and negotiated the invoice amount; and QBE paid the negotiated amount to the insured.

QBE filed a response in opposition to United's motion for summary judgment, arguing that the written AOB agreement was invalid because it was not signed by the insured. As such, QBE could not have breached the loss payment provision because United was not legally entitled to receive payment. In support of its position that the signature appearing on the AOB agreement did not belong to the insured, QBE presented the affidavit of a forensic document examiner. In relevant part, the forensic document examiner attested that he compared the signature on the AOB agreement to seven known/standard signatures of the insured taken from various documents. After comparing the signatures, the forensic document examiner concluded the signature on the AOB agreement "does not compare favorably with the individual characteristics present in...