DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE KIDWELL GROUP, LLC d/b/a
AIR QUALITY ASSESSORS OF FLORIDA a/a/o
FRANCINE NOVEMBRE,
Appellant,
v.
GEOVERA SPECIALTY INSURANCE COMPANY,
Appellee.
No. 4D20-1014
[October 13, 2021]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Sandra Bosso-Pardo, Judge; L.T. Case No.
502018SC016320.
Chad A. Barr of Chad Barr Law, Altamonte Springs, for appellant.
Patrick J. Carleton and Andrew A. Labbe of Groelle & Salmon, P.A.,
West Palm Beach, for appellee.
GERBER, J.
The insureds’ assignee appeals from the county court’s final order
granting the insurer’s motion to dismiss the assignee’s breach of contract
action against the insurer. The county court granted the insurer’s motion
to dismiss because only the wife-insured, and not also the husband-
insured, had signed the assignment of claims benefits, thus not complying
with the policy’s provision stating:
No assignment of claims benefits, regardless of whether made
before loss or after loss, shall be valid without the written
consent of all “insureds,” all additional “insureds,” and all
mortgagee(s) named in this policy.
(Emphasis added).
We affirm the county court’s dismissal based on our decision in
Restoration 1 of Port St. Lucie v. Ark Royal Insurance Co., 255 So. 3d 344
(Fla. 4th DCA 2018). Restoration 1 held that the same policy provision did
not violate Florida law, because the policy provision did not require the
insurer to consent to the benefits assignment. Cf. W. Fla. Grocery Co. v.
Teutonia Fire Ins. Co., 77 So. 209, 210-11 (Fla. 1917) (“[I]t is a well-settled
rule that the provision in a policy relative to the consent of the insurer to
the transfer of an interest therein does not apply to an assignment after
loss.”) (emphasis added).
As we recognized in Restoration 1, we acknowledge our decision
conflicts with Security First Insurance Company v. Florida Office of
Insurance Regulation, 232 So. 3d 1157 (Fla. 5th DCA 2017). In Security
First, our sister court interpreted West Florida Grocery to mean that any
restriction on a benefits assignment was unenforceable, even those
restrictions not limited to requiring insurer consent. Id. at 1158-59.
Accordingly, Security First struck down an assignment of benefits
provision which required the consent of the insureds and mortgagees. Id.
at 1159. The assignment of claims benefits provision in Security First is
nearly identical to the one in Restoration 1 and the instant case. 232 So.
3d at 1158 n.1. To the extent our sister court in Security First expanded
upon West Florida Grocery, we certify conflict, as we did in Restoration 1.
255 So. 3d at 348.
The county court’s final order in the instant case also certified to this
court the following question of great public importance: “[W]hether an
assignment of benefits executed prior to July 1, 2019 requires the
signature of all named insureds in order to be enforceable against a
defendant in a breach of contract lawsuit for property damage.” The
county court proposed its certified question at the assignee’s request. The
assignee argues that in 2019, the Legislature enacted section 627.7153,
Florida Statutes (2019), which expressly permits a policy issued or
renewed on or after July 1, 2019, to restrict in whole or in part an insured’s
right to execute an assignment agreement when certain enumerated
conditions (not at issue here) are met. See generally § 627.7153, Fla. Stat.
(2019). According to the assignee, the Legislature’s enactment of section
627.7153 created a question as to whether policies issued or renewed
before July 1, 2019, were prohibited from restricting in whole or in part an
insured’s right to execute an assignment agreement.
We initially accepted jurisdiction to answer the county court’s certified
question pursuant to Florida Rule of Appellate Procedure 9.160. Rule
9.160 provides a district court of appeal with discretionary jurisdiction to
review a county court decision which the county court certifies to be of
great public importance. See generally Fla. R. App. P. 9.160. Since
accepting jurisdiction pursuant to rule 9.160, mandatory jurisdiction over
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this county court appeal also has been conferred upon us pursuant to
Florida Rule of Appellate Procedure 9.030(b)(1)(A), as amended January 1,
2021.
While we maintain mandatory jurisdiction over this county court
appeal pursuant to rule 9.030(b)(1)(A), we now conclude that our initial
acceptance of discretionary jurisdiction pursuant to rule 9.160 was
improvidently granted. Our decision in Restoration 1 relied upon the
principle that, “absent some great prejudice to the dominant public
interest or specific pronouncement by the Florida Legislature, courts strive
to uphold the parties’ freedom of contract.” 255 So. 3d at 348 (internal
quotation marks and citations omitted). Applying that principle, we held
that requiring all insureds to consent to an assignment of claims benefits
did not impose “some great prejudice to the dominant public interest.” Id.
Therefore, we held that “the language of the assignment of benefits
provision in the instant insurance contract is enforceable,” and “[t]he
central reasoning and holding of West Florida Grocery does not extend to
the facts of this case.” Id.
Our Restoration 1 holding did not turn on any “specific pronouncement
by the Florida Legislature,” or lack thereof, in 2018. And we do not
question our Restoration 1 holding in light of the Legislature’s 2019
enactment of section 627.7153, Florida Statutes (2019), to expressly
permit a policy issued or renewed on or after July 1, 2019, to restrict in
whole or in part an insured’s right to execute an assignment agreement
when certain enumerated conditions (not at issue here) are met. Rather,
our Restoration 1 holding stands firm on the ground upon which we based
that holding, as should judicial review of any policy issued or renewed on
or after July 1, 2019. See Restoration 1 of Port St. Lucie v. Ark Royal Ins.
Co., nos. SC18-1624, SC18-1623, 2019 WL 3403438, at *1 (Fla. July 29,
2019) (“Because we conclude that the new legislation addresses on a
going-forward basis the issue before us, we exercise our discretion to
discharge jurisdiction.”). Thus, on further reflection, we no longer see a
need to answer the certified question, and therefore decline to do so. See
Fla. R. App. P. 9.160(e)(2) (“The district court of appeal, in its absolute
discretion, shall by order accept or reject jurisdiction.”) (emphasis added).
Based on the foregoing, we affirm the circuit court’s dismissal in the
instant case based on our Restoration 1 holding. On all other arguments
which the assignee has raised in this appeal, we affirm without further
discussion. As stated above, we certify conflict with Security First
Insurance Company v. Florida Office of Insurance Regulation, 232 So. 3d
1157 (Fla. 5th DCA 2017).
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Affirmed; conflict certified.
WARNER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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