August 17, 2022
ShareKK’s 1st Party Property Appellate Team Secures Affirmation of Trial Court’s Dismissal of Assignment of Benefits Case with Prejudice
Kelley Kronenberg Attorney Jordan Lande and Partner Kim Fernandes secure affirmation of trial court’s dismissal of case with prejudice.
In The Kidwell Group, LLC A/A/O Amadio v. Olympus Insurance Company, No 5D21-2955 (Fla. 5th DCA July 22, 2022), a third-party contractor brought suit against Olympus for breach of contract pursuant to an Assignment of Benefits (“AOB”) agreement that was attached to the complaint, and upon which the third-party contractor’s legal standing relied. Based on the date the AOB was executed, both the lower court and appellate court concluded that the AOB was subject to, and governed by, the new AOB reform law, codified as Fla. Stat. §627.7152 (2019).
At the appellate oral argument, Kidwell did not dispute its non-compliance; rather, it argued the statute was inapplicable as the insurance policy was issued prior to the statute’s effective date and retroactive application would be unconstitutional. The Fifth DCA concluded Kidwell’s argument is without merit, explaining that any AOB executed on or after the effective date of §627.7152 and that fails to comply with the requirements of the statute is invalid and unenforceable; and, the statute expressly applies to AOBs “executed on or after July 1, 2019.” The subsections of §627.7152 require an assignment to be in writing and executed by the assignor and assignee, and contain written, itemized, per unit cost estimate of the services to be performed by the assignee, amongst other requirements.
Perhaps, of greater consequence, the Court noted a recent decision by the Fourth DCA considering the date of the AOB controlling for the application of §627.7152. The Court expressly aligned itself with the Fourth DCA and held that, based on the plain language of the statute, the trial court properly applied §627.7152 prospectively; as such, the lower court’s order dismissing Kidwell’s complaint with prejudice was affirmed. This is a significant victory for carriers and will have considerable ramifications for AOB matters across the State of Florida.