April 19, 2023

Kelley Kronenberg Secures Dismissal in Seminole County Breach of Contract Case

Kelley Kronenberg Attorney, Coral Lerner, assisted by Partner, Scott Dornstein, prevailed on a Motion to Dismiss in a Breach of Contract action stemming from a First-Party Property homeowners’ insurance claim dispute which centered on the validity of an Assignment of Benefits. The Honorable Judge Carsandra Buie presided. 

In this case, repeat-Plaintiff, The Kidwell Group, filed a Breach of Contract suit after Defendant denied payment for an engineering report prepared for the policyholder. Plaintiff asserted entitlement to recoupment of the costs for preparing the report based on an Assignment of Benefits (“AOB”) and attached an invoice to the Complaint as support.  

Defendant argued the invoice attached to the AOB did not constitute an estimate for purposes of compliance with the AOB statute. Coral Lerner focused on the requirement that the estimate be provided at the time the AOB was executed, pursuant to Kivovitz. In the Response to Defendant’s Motion to Dismiss, Plaintiff alluded to the fact that this did not occur, arguing provision of the estimate was a condition precedent to a contract being formed and, once the estimate was attached, a contract was formed. Relying on the First DCA decision in Glantz, Ms. Lerner asserted invalidity as the invoice and AOB were dated the same day and an invoice is a demand for payment for services performed, not an estimate of the cost of prospective services (“an invoice and an estimate are not the same thing”). 

After hearing argument, Judge Buie concurred with Ms. Lerner and dismissed Plaintiff’s Complaint, holding an invoice is not an estimate for purposes of compliance with the requirement set forth in Florida Statutes § 627.7152–that an Assignment of Benefits contain an itemized, per-unit cost estimate of services to be rendered. 

The success of this case, reflective of the strenuous advocacy of our First-Party Property Defense team, now paves way for future defenses of similar cases in Seminole County, Florida.