The Fourth District Court of Appeal of Florida Rules that Post-Loss Assignment of Benefits are Permissible.

In One Call Prop. Servs. v. Sec. First Ins. Co., 2015 Fla. App. LEXIS 7643, 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.

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. 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.

The Fourth District Court of Appeal of Florida reversed the trial courts order concluding that the trial court erred in dismissing One Call’s complaint based on the anti-assignment and loss payment provisions of the insurance policy. Here, the trial court was entitled to review a homeowners’ insurance policy in ruling on the insurer’s motion to dismiss an assignee’s breach of contract claim because the complaint referred to the policy, and the assignee’s standing to bring suit was premised on an assignment of the policy. The complaint impliedly incorporated the policy by reference. However, the Court found the trial court erred as a matter of law in dismissing the assignee’s claim because post-loss assignments of insurance proceeds were valid under Florida law, the policy’s loss payment provision did not preclude an assignment of benefits, and an assignable right to benefits accrued on the date of the loss. The Court emphasized, that they declined to reach any of Security First’s other challenges to the assignment, including whether the assignment violates the public adjuster statute or the statute governing insurable interests, or whether the assignment is a partial assignment that cannot be enforced against Security First without its consent. The trial court should address these issues in the first instance.