February 21, 2023

Kelley Kronenberg Obtains Another Summary Judgment Against Repeat Plaintiff, Air Quality Assessors

Kelley Kronenberg’s First-Party Property team of Attorney, Marisa Hershiser, and Partner, Derek Goldsmith prevailed on Defendant’s Motion for Summary Judgment, securing favorable rulings on all three grounds raised therein. The Honorable Corey Cawthon presided.  

The insured filed a claim related to damages allegedly resulting from Hurricane Irma, on September 10, 2017. On or about September 15, 2020, the insured contracted with Plaintiff to provide engineering services, executing what purported to be a post-loss AOB (Assignment of Benefits). The carrier denied payment to Plaintiff and the instant suit for breach of contract and declaratory judgment followed. 

In the face of a damage claim for $3,500.00 and a demand from Plaintiff far exceeding that sum, our defense team filed a Motion for Summary Judgment asserting three grounds: (1) the AOB fails to comply with Florida Statutes §627.7152; (2) the engineer report services are not compensable under the policy; and (3) Plaintiff’s supplemental claim for engineer report services is barred under Florida Statutes §627.70132.  

Judge Cawthon agreed. As to Defendant’s first argument, the Court noted, §627.7152 is clear and unambiguous regarding what is required to constitute a valid and enforceable assignment of benefits, and any AOB not meeting these criteria is “invalid and unenforceable.” Specifically, the AOB statute requires the agreement to include, “a written, itemized, per-unit cost estimate of services to be performed by the assignee,” and the document provided by Plaintiff contained a separate invoice, failing to meet that element. This failure resulted in Plaintiff lacking the necessary standing to sue the insurer.  

Addressing Defendant’s second argument, the Court traced the applicable policy, noting engineer report services are not included in the covered perils section of the policy which restricts reimbursement to repairs necessary to protect against further damage. Regarding Defendant’s third argument, Judge Cawthon ruled the supplemental claim for reimbursement was time barred as it was asserted more than three years after the hurricane first made landfall. The judge went on to state that, even if the AOB was valid and enforceable, Plaintiff’s suit would be time barred pursuant to §627.70132 and the terms of the underlying policy.  

Winning on all three grounds, the defense team of Marisa Hershiser and Derek Goldsmith skillfully shielded our client from exposure exceeding $10,000.00.