June 7, 2023Share
Kelley Kronenberg Prevailed on Motion to Dismiss for Invalid AOB
Kelley Kronenberg Partner, Kurt Ciell, added to his string of wins against The Kidwell Group by prevailing on a Motion to Dismiss arguing Plaintiff submitted an invalid Assignment of Benefits. The Honorable Andrew Bain of Florida’s Ninth Judicial Circuit presided.
In this breach of contract action, stemming from a first-party property homeowner’s insurance claim dispute, Plaintiff is a contractor who sued State Farm as the alleged assignee of the named insured pursuant to a purported Assignment of Benefits (“AOB”) contract. The AOB, allegedly executed by Plaintiff and the insureds on April 23, 2022, was attached as an exhibit to Plaintiff’s Complaint. In the Complaint, Plaintiff claimed the services it allegedly provided pursuant to the AOB are compensable with benefits under the subject policy, and because the AOB itself was executed after July 1, 2019, the AOB must be governed by Fl. Stat. §627.7152. Plaintiff also averred that the AOB falls under the governance of Fl. Stat. §627.7152, since the AOB reflected the services that Plaintiff allegedly performed for the insured and noted that the resulting report prepared by Plaintiff should be provided to the insured’s “repair contractors to ensure a complete and proper repair of the damage to the subject property.”
As part of his rigorous defense, Kurt Ciell argued that, while Plaintiff’s assignment agreement contained a list of all of the services Plaintiff offers with one of its services allegedly checked by the insured, because there was no indication of what the total cost of the work would be, Plaintiff’s price list did not constitute the type of estimate required under Section 627.7152(2)(a)4, Florida Statutes. Rather, Plaintiff’s price list substantially resembled that of the price list stuck down by the Fourth District Court of Appeals in Air Quality Experts Corp. a/a/o Gerard v. Family Security Ins. Co., 351 So.3d 32 (Fla. 4th DCA 2022). Without a “written, itemized, per-unit cost estimate” of the work to be performed, the AOB is invalid and unenforceable, leaving Plaintiff without standing to sue State Farm.
The Court agreed with Mr. Ciell, entering an Order mirroring the arguments asserted in Defendant’s Motion to Dismiss and dismissing Plaintiff’s Complaint with prejudice. This victory saved our client $3,500.00 in damages, and any fees and costs that may have been sought. Additionally, the Court reserved jurisdiction for State Farm to assert its entitlement to attorney’s fees and costs, as prevailing party.