Boyd & Jenerette Senior Associate Jordan Parker Recently Obtained an Order of Dismissal with Prejudice in a Property Damage Suit Arising from an Assignment of Benefits
In Plaintiff’s First Amended Complaint, Plaintiff alleged the subject property sustained covered hurricane damage and Plaintiff provided necessary services to the insured and in exchange, the insured agreed to allow direct billing to the insurance carrier and further agreed to assign all rights under the policy for the services rendered.
In Count I of the Amended Complaint, Plaintiff alleged breach of contract by the insurer for failing and/or refusing to tender full insurance proceeds due and owing to the Plaintiff. In Count II, Plaintiff sought a declaratory judgment, claiming it was in doubt as to the validity and/or enforceability of its assignment of benefits under Florida Statute 627.7152 and the common law. In Count III, Plaintiff brought a claim for general assumpsit and alleged Plaintiff and Defendant had an advantageous, non-speculative, business relationship, which was not evidenced by a written contract; the parties conducted themselves as though Plaintiff was a post-lost beneficiary under the Policy; Defendant breached the Policy by failing or refusing to pay the full amounts due and owing to Plaintiff; and Defendant waived Plaintiff’s compliance with Fla. Stat. §627.7152(2)(a).
Plaintiff attached the purposed assignment of benefits, signed and dated by the insurer on November 4, 2020, and an unexecuted invoice for services, dated November 6, 2020 to the Amended Complaint. Plaintiff also alleged it met all conditions precedent to the filing of the lawsuit.
In the Motion to Dismiss, Defendant argued Plaintiff’s assignment of benefits failed to comply with Florida Statute 627.7152(2)(a) and was invalid and unenforceable. Specifically, Defendant argued the statute’s plain language requires that at the time the assignment of benefits is signed, the assignor must be provided with a list of the itemized services to be performed by the assignee, as well as the costs thereof. Kidwell Group v. United Prop. & Cas. Ins. Co. 2022 Fla. App. Lexis 4096 (citing Fla. Stat. §627.7152(2)(a)(1),(4)). An unexecuted invoice dated after an assignment of benefits will not suffice. Id. (emphasis added). Defendant further argued Plaintiff failed to comply with the pre-suit notice requirements outlined in Florida Statute 627.7152(9). Therefore, Plaintiff’s breach of contract claims should be dismissed.
Next, Defendant argued Plaintiff was not entitled to declaratory judgment because it failed to allege a real, immediate controversy.
Lastly, Defendant argued the Court is not permitted to modify or extend the express terms of a statute to allow for the waiver of the preconditions outlined in §627.7152(2)(a), thus, Plaintiff’s claim for general assumpsit should be dismissed.
Following a hearing on the motion, the Court found the pre-suit notice requirements pursuant to Florida Statute 627.7152(2)(a) are mandatory for a valid and enforceable assignment of benefits, and Plaintiff did not have valid assignment. The Court also found the notice of intent to initiate litigation was no provided with in the statutory ten days and dismissed Plaintiff’s Amended Complaint with prejudice.
Plaintiff has appealed the ruling and the matter is now being handled by Boyd & Jenerette Shareholder Kansas Gooden and the appellate team.
About Jordan L. Parker
Jordan Parker is a senior associate attorney working for the firm in Sarasota, Florida. She primarily focuses her practice on first and third-party automobile liability defense, insurance coverage disputes, and property damage claims. Prior to joining the firm, she worked for a Tampa based insurance defense firm for five years and focused her practice on premise liability, general civil litigation and insurance defense, automobile negligence, and property damage claims.
Jordan began her career as an attorney with the Guardian Ad Litem Program in Jacksonville, Florida, advocating for the best interest of children in juvenile dependency matters.
When she is not at work, she enjoys spending time boating and fishing with her husband and son.