ALL INSURANCE RESTORATION SERVICES, INC. v. AMERICAN INTERGRITY INSURANCE COMPANY OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ALL INSURANCE RESTORATION SERVICES, INC.
a/a/o EDWIN MASABANDA and MILENA MASABANDA,
Appellant,

v.

AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA,
Appellee.

No. 4D21-89

[March 23, 2022]

Appeal from the County Court for the Nineteenth Judicial Circuit, St.
Lucie County; Daryl Isenhower, Judge; L.T. Case Nos. 2020-SC-000245
and 2020-AP-000022.

Erin M. Berger and Melissa A. Giasi of Giasi Law, P.A., Tampa, for
appellant.

Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St.
Petersburg, for appellee.

FORST, J.

Appellant All Insurance Restoration Services, Inc. appeals the trial
court’s dismissal of its complaint against American Integrity Insurance
Company of Florida (“Insurer”), in an action involving the interplay
between homestead property rights and the assignment of post-loss
insurance benefits. The trial court found that assigned insurance benefits
are “imbued with the same [homestead protections] as the property itself,”
thereby requiring compliance with sections 689.01 and 689.111, Florida
Statutes (2019), for proper sale, alienation or devise.

Appellant raises several arguments on appeal. Finding merit in
Appellant’s arguments that sections 689.01’s and 689.111’s homestead
protections are inapplicable to an assignment of post-loss insurance
benefits, we reverse.

Background
 In early 2019, Edwin and Milena Masabanda’s (“the Insureds”) real
property sustained damage from a covered peril. To protect the property
from further damage, the Insureds hired Appellant to perform water
mitigation services. As payment, the Insureds assigned Appellant their
policy benefits pursuant to a “Work Authorization, Direct Payment
Request, & Limited Assignment of Benefits” (“AOB”).

In accordance with the AOB, Appellant provided Insurer “with itemized
invoices detailing the amount owed for the work [on the Insureds’]
property.” However, Insurer refused to pay the amount due and owing
under the AOB. Consequently, Appellant filed a one-count complaint
against Insurer for breach of contract.

Insurer filed a motion to dismiss, arguing that the AOB was both an
invalid assignment and an improper conveyance of homestead property.
Specifically, Insurer cited Quiroga v. Citizens Property Insurance Corp., 34
So. 3d 101 (Fla. 3d DCA 2010), arguing “insurance proceeds for homestead
property are constitutionally protected to the same extent as the property
and cannot be divested by a homeowner through an unsecured
agreement.” Insurer further contended, “[d]espite the lack of a secured
agreement, the alleged [AOB was] not a proper conveyance of homestead
property” because it did not comply with sections 689.01 and 689.111,
Florida Statutes (2019).

In response, Appellant filed an amended memorandum of law.
According to Appellant, Quiroga was distinguishable “because it involved
a charging lien imposed on proceeds from an insurance policy [and] not,
like here, a voluntary transfer of benefits on the part of the [I]nsured[s].”
Additionally, Appellant contended that sections 689.01 and 689.111 had
“nothing to do with the assignment of benefits provided to [Appellant] by
the Insureds . . . .”

Following a hearing on Insurer’s motion to dismiss, the trial court
entered an order granting the motion. Citing to Quiroga and to JD
Restoration Inc. v. Universal Property & Casualty Insurance Co., 245 So. 3d
809 (Fla. 4th DCA 2018)—a nonprecedential citation opinion involving an
identical issue—the court found that the assigned insurance proceeds
were “imbued with the same insulation as the property itself enjoys.” The
trial court stated that such insulation could be “stripped or avoided only
by proper procedure to create a secured interest in the insurance proceeds
in favor of [Appellant].” And, because the Insureds did not execute the
AOB in the manner which sections 689.01 and 689.111 prescribe, the trial
court found dismissal appropriate. This appeal followed.

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 Analysis

“The standard of review of orders granting motions to dismiss is de
novo.” Scott v. Progressive Express Ins. Co., 932 So. 2d 475, 477 (Fla. 4th
DCA 2006). Likewise, the standard of review of a trial court’s
interpretation of constitutional provisions or statutes is de novo. Furst v.
Rebholdz as Tr. of Rod Rebholz Revocable Tr., 302 So. 3d 423, 428 (Fla. 2d
DCA 2020).

A. Homestead Application

1. General Law

The Florida Constitution’s Article X, section 4, contains certain
protections on the sale, devise, or alienation of homestead property. Under
article X, section 4(a):

There shall be exempt from forced sale under process of any
court, and no judgment, decree or execution shall be a lien
thereon, except for the payment of taxes and assessments
thereon, obligations contracted for the purchase,
improvement or repair thereof, or obligations contracted for
house, field or other labor performed on the realty, the
following property owned by a natural person:

(1) a homestead . . . .

Art. X, § 4(a), Fla. Const. (emphasis added). Moreover, under article X,
section 4(c):

The homestead shall not be subject to devise if the owner is
survived by spouse or minor child, except the homestead may
be devised to the owner’s spouse if there be no minor child.
The owner of homestead real estate, joined by the spouse if
married, may alienate the homestead by mortgage, sale or gift
and, if married, may by deed transfer the title to an estate by
the entirety with the spouse. If the owner or spouse is
incompetent, the method of alienation or encumbrance shall
be as provided by law.

Art. X, § 4(c), Fla. Const. (emphasis added).

“In the event a homestead is damaged . . . the proceeds of any insurance
recovery are imbued” with the same constitutional protections as the

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homestead property itself. Quiroga v. Citizens Prop. Ins. Corp., 34 So. 3d
101, 102 (Fla. 3d DCA 2010). Thus, Article X, Section 4’s protections on
the sale, devise, or alienation of homestead property apply to insurance
proceeds. See id.; Orange Brevard Plumbing & Heating Co. v. La Croix, 137
So. 2d 201, 203–04 (Fla. 1962). However, recent opinions have clarified
that these constitutional homestead protections have no bearing on the
assignment of any post-loss insurance proceeds or benefits. See Speed
Dry, Inc. v. Anchor Prop. & Cas. Ins. Co., 302 So. 3d 463, 466–67 (Fla. 5th
DCA 2020), rev. denied, SC20-1382, 2020 WL 5793576 (Fla. Sept. 29,
2020); Citrus Contracting LLC v. Liberty Mut. Fire Ins. Co., No. 6:19-cv-
2192-Orl-28EJK, 2020 WL 364581, at *2 (M.D. Fla. Jan. 22, 2020).

2. Quiroga

In Quiroga, a law firm secured insurance proceeds “for the benefit of its
client and policy insured . . . .” 34 So. 3d at 101. The client then
terminated the law firm’s representation, seeking “to shield himself from
any responsibility to compensate his counsel by claiming the insurance
proceeds [were] exempt homestead property, not subject to attachment by
means of a charging lien.” Id. The trial court agreed with the client,
denying the law firm’s motion to impose a charging lien on the
homeowner’s insurance proceeds. See id.

On appeal, the Third District noted that neither party disputed the
property was constitutionally exempt homestead property. Id. at 101–02.
However, because insurance proceeds are imbued with the same
homestead protections as the property itself, the court held that the client
“did not and, as a matter of public policy in this State, [could not] through
an unsecured agreement . . . enter into an enforceable contract to divest
himself” of his Article X, Section 4(a) protections.

3. Citrus Contracting and Speed Dry

In Citrus Contracting, the Middle District of Florida considered an
insurer’s argument that assigned post-loss insurance benefits are
“homestead property that falls within Article X, § 4(a) of the Florida
Constitution such that the proceeds of the Policy retain the same
homestead protections as the Property itself.” Citrus Contracting, 2020 WL
364581, at *2 (footnote omitted). Noting that “[n]either the Supreme Court
of Florida nor any Florida appellate court has explicitly extended Florida
law” as the insurer argued, the court denied the insurer’s motion to
dismiss. Id.

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 Subsequently, in Speed Dry, the Fifth District considered whether
Article X, Section 4(c) “prevents the owner of homestead real property from
assigning post-loss insurance benefits to a third-party contractor.” Speed
Dry, 302 So. 3d at 464. Utilizing the supremacy-of-text principle, the court
determined that, for purposes of Article X, Section 4(c), the term “alienate”
referred to the transfer of real property. Id. at 466. In line with that
construction, the court stated that “[a]n assignment of post-loss insurance
benefits does not transfer title of real property . . . [but is instead] an
assignment of contract rights that places a third party in the shoes of the
homeowner and in privity with the insurance company.” Id. Thus, the
court held that the assignment of benefits at issue conveyed “no interest
in the homestead property” and was not prohibited by Article X, Section
4(c). 1 Id. at 466–67.

4. Application of Quiroga, Citrus Contracting, and Speed Dry to the
Instant Case

Despite the above-noted persuasive authority suggesting that
homestead protections are irrelevant to the assignment of post-loss
insurance benefits under Article X, Insurer argues that Quiroga applies to
the case at bar, and that this court should follow its nonprecedential
citation opinion in J.D. Restoration—a citation opinion which, as stated
earlier, involved an identical issue and which in fact relied upon Quiroga
in support. 2

However, Quiroga did not involve an assignment of benefits. Therefore,
Quiroga’s application to the instant case is tenuous at best. Indeed, both
Citrus Contracting and Speed Dry specifically distinguished Quiroga when
determining that the constitutional homestead protections did not apply.

1 In Landmark Construction Inc. of Central Florida v. Anchor Property & Casualty
Insurance Co., 325 So. 3d 153 (Fla. 5th DCA 2020), the Fifth District reinforced
Speed Dry’s holding, certifying the following question as one of great public
importance: “DOES ARTICLE X, SECTION 4(c) OF THE FLORIDA CONSTITUTION
ALLOW THE OWNER OF HOMESTEAD REAL PROPERTY, JOINED BY THE
SPOUSE, IF MARRIED, TO ASSIGN POST-LOSS INSURANCE BENEFITS TO A
THIRD-PARTY CONTRACTOR CONTRACTED TO MAKE REPAIRS TO THE
HOMESTEAD PROPERTY?” Id. at 154. The supreme court denied review. SC20-
1428, 2020 WL 6128206 (Fla. Oct. 19, 2020).
2 Insurer also suggests that this Court follow One Call Property Services, Inc. v.

St. Johns Insurance Co., 183 So. 3d 364 (Fla. 4th DCA 2016). That case, too,
involved an identical issue, but resulted in a nonprecedential per curiam
affirmance opinion.

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 In Citrus Contracting, the Middle District of Florida noted that Quiroga
“involved a charging lien that attorneys sought to place on insurance
proceeds,” stating that it was “not persuaded that Quiroga is properly
extended to assignments” of post-loss insurance benefits. Citrus
Contracting, 2020 WL 364581, at *2. Moreover, in Speed Dry, the Fifth
District further distinguished Quiroga, arguing the case stood for the
proposition that “a homesteader cannot waive, through an unsecured
agreement, the homestead exemption set forth in article X, section 4(a).”
Id. at 466–67. As the appellant-assignee in Speed Dry had not tried to lien
the insured’s home or force a sale on the insured’s homestead, the court
held that Article X, Section 4(a)—and therefore Quiroga—was not
implicated. See id.

Here, we agree with the rationale of both Citrus Contracting and Speed
Dry. As it pertains to Article X, Section 4(a), no forced sale or potential
lien occurred. Thus, like both Citrus Contracting and Speed Dry, we
distinguish Quiroga on such basis. Further, with respect to Article X,
Section 4(c), we find compelling Speed Dry’s assertion that “[a]n
assignment of post-loss insurance benefits . . . is an assignment of
contract rights that places a third party in the shoes of the homeowner
and in privity with the insurance company [and] . . . conveys no interest
in . . . homestead property.” 302 So. 3d at 466.

“The general purpose of the homestead provision in the Florida
Constitution, at least historically, has been to protect the family and the
family home.” In re Est. of Morrow, 611 So. 2d 80, 81 (Fla. 2d DCA 1992).
“The public policy furthered by a homestead exemption is to promote the
stability and welfare of the state by securing to the householder a home,
so that the homeowner and his or her heirs may live beyond the reach of
financial misfortune and the demands of creditors who have given credit
under such law.” Chames v. DeMayo, 972 So. 2d 850, 853–54 (Fla. 2007)
(internal quotation marks omitted) (quoting McKean v. Warburton, 919 So.
2d 341, 344 (Fla. 2005)).

Limiting the voluntary assignment of post-loss insurance benefits, as
Insurer requests, does not protect the family and family home. Nor does
such limitation further public policy, as in any assignment of post-loss
insurance benefits, the assignment “places a third party in the shoes of
the homeowner and in privity with the insurance company.” Speed Dry,
302 So. 3d at 466. Under the ensuing assignment, “the assignor no longer
has a right to enforce the interest because the assignee has obtained ‘all
rights to the things assigned.’” Cont’l Cas. Co. v. Ryan Inc. E., 974 So. 2d
368, 376 (Fla. 2008) (quoting Price v. RLI Ins. Co., 914 So. 2d 1010, 1013–
14 (Fla. 5th DCA 2005)). Thus, the homeowner is necessarily not subject

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to the “demands of creditors.” Chames, 972 So. 2d at 853. Consequently
then, Article X, Section 4(c) is not implicated when dealing with the
assignment of post-loss insurance benefits.

To the extent our nonprecedential citation opinion in J.D. Restoration,
or our nonprecedential per curiam affirmance in One Call are at odds with
this holding, we note that neither this Court nor the trial court had the
benefit of the Citrus Contracting or Speed Dry decisions. Accordingly,
because we find Speed Dry particularly persuasive, and because the
former decisions are nonprecedential, we decline to follow those former
decisions.

B. Sections 689.01 and 689.111

Having determined that homestead exemptions have no application to
the assignment of post-loss insurance benefits, we next address the
applicability of sections 689.01 and 689.111, Florida Statutes (2019).

Section 689.01 provides in pertinent part:

No estate or interest of freehold, or for a of term of more than
1 year, or any uncertain interest of, in, or out of any
messuages, lands, tenements, or hereditaments shall be
created, made, granted, transferred, or released in any
manner other than by instrument in writing, signed in the
presence of two subscribing witnesses by the party creating,
making, granting, conveying, transferring, or releasing such
estate, interest, or term of more than 1 year, or by the party’s
lawfully authorized agent, unless by will and testament, or
other testamentary appointment, duly made according to law
....

§ 689.01(1), Fla. Stat. (2019). “[W]hen the language of the statute is clear
and unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.”
Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc.
v. McRainey, 137 So. 157, 159 (Fla. 1931)).

Here, section 689.01’s plain language indicates that the statute is
connected to the transfer of real property, which—as noted in Speed Dry—
is not part of an assignment of post-loss insurance benefits. Speed Dry,

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302 So. 3d at 466. In fact, messuages, 3 lands, tenements, and
hereditaments are all terms associated with real property. While Insurer
argues that “hereditaments” extends to legal rights related to real property
and could therefore also cover assigned insurance benefits, hereditaments
are “[a]ny property that can be inherited; anything that passes by
intestacy” or “[r]eal property; land.” Hereditament, Black’s Law Dictionary
(11th ed. 2019).

An assignment of insurance rights simply does not implicate a transfer
of property by inheritance or intestacy or involve the transfer of real
property or land. Thus, section 689.01, by its plain language, is
inapplicable to the assignment of post-loss insurance benefits. Further,
while a statute’s title alone is not determinative, Fitts v. Furst, 283 So. 3d
833, 837 (Fla. 2d DCA 2019), section 689.01’s title is “How real estate [is]
conveyed.” § 689.01, Fla. Stat. (2019).

As for section 689.111, both that statute’s title and plain language
clearly reference a conveyance of homestead realty. See § 689.111, Fla.
Stat. (2019). Because “[a]n assignment of post-loss insurance benefits
does not transfer title of real property . . . [but is instead] an assignment
of contract rights that places a third party in the shoes of the homeowner
and in privity with the insurance company,” Speed Dry, 302 So. 3d at 466,
section 689.111 is inapplicable. Thus, whatever infirmities may or may
not have existed with Appellant’s compliance with sections 689.01 and
689.111, because the AOB did not involve a transfer of real property or of
homestead realty, Appellant was not required to comply with such statutes
as part of the assignment of benefits at issue.

Conclusion

Pursuant to recent persuasive authority, we hold that Article X, Section
4’s restrictions on the sale, devise, or alienation of homestead property are
not to be treated as impediments to the assignment of post-loss insurance
benefits. Because those homestead protections are inapplicable and do
not involve a transfer of real property, we further hold that Appellant’s
purported noncompliance with sections 689.01 and 689.111 was
immaterial. Therefore, the trial court erred in granting Insurer’s motion
to dismiss and in later dismissing the case. Accordingly, we reverse and
remand for the entry of an order denying Insurer’s motion.

Reversed and remanded with instructions.

3Messuage means “[a] dwelling house together with the curtilage, including any
outbuildings.” Messuage, Black’s Law Dictionary (11th ed. 2019).

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MAY and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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