GALE FORCE ROOFING AND RESTORATION, LLC v. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

GALE FORCE ROOFING AND RESTORATION, LLC,

Appellant,

v.

AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA,

Appellee.

No. 2D22-4104

February 16, 2024

Appeal from the Circuit Court for Hillsborough County; Caroline Tesche
Arkin, Judge.

Jeremy D. Bailie of Weber, Crabb & Wein, P.A., St. Petersburg, for
Appellant.

Kimberly J. Fernandes of Kelley Kronenberg, Tallahassee, for Appellee.

KHOUZAM, Judge.

Gale Force Roofing and Restoration, LLC, appeals an order
dismissing its complaint against American Integrity Insurance Company
of Florida. Although Gale Force brought the action as the assignee of
American Integrity's insured, the trial court determined that Gale Force
lacked standing to do so on the basis that the assignment of benefits
(AOB) attached to the complaint failed to satisfy the requirements of
section 627.7152, Florida Statutes (2021).1 Because the trial court did
not err in dismissing the complaint on the basis of an invalid
assignment, we affirm. We write to explain our reasoning.
Gale Force contends that the trial court erred in ruling that the
AOB is invalid and unenforceable because the court looked only to the
first two pages of the complaint attachment to determine its validity as
an AOB instead of considering the full six-page document.2 Had the trial
court considered all six pages, Gale Force maintains, it would have
concluded that the AOB complied with all applicable statutory
requirements. American Integrity responds that the trial court correctly
limited its review of the AOB's statutory compliance to only the first two
pages of the complaint attachment and, further, that even if it had
considered all six pages, the court would inexorably have found the AOB
invalid and unenforceable due to several substantive deficiencies therein.
In this case, we need not—and do not—decide the question of
whether the court was required to consider all pages attached to the
complaint to determine the validity of the AOB. That is because, even
accepting for purposes of analysis Gail Force's primary contention that
the court should have evaluated all six pages to determine statutory
compliance, we reach the same result: the AOB is invalid and
unenforceable under the plain language of section 627.7152(2).

1 This statute has since been amended, but the parties agree that

the 2021 version applies here.

2 Although the six-page attachment is consecutively paginated "[#]

of 6," it contains two separate sections under different titles: the first two
pages are titled "Assignment Agreement," followed by a "Construction
Services Agreement" as well as an exhibit.

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 "The standard of review of an order granting a motion to dismiss is
de novo." Air Quality Experts Corp. v. Fam. Sec. Ins., 351 So. 3d 32, 36
(Fla. 4th DCA 2022) (citing Rhiner v. Koyama, 327 So. 3d 314, 316 (Fla.
4th DCA 2021)). "Statutory interpretation and standing also receive de
novo review." Id. (first citing Therlonge v. State, 184 So. 3d 1120, 1121
(Fla. 4th DCA 2015); and then citing Matthews v. Fed. Nat'l Mortg. Ass'n,
160 So. 3d 131, 132 (Fla. 4th DCA 2015)).
"Section 627.7152 . . . was enacted by the Florida legislature in
2019 to regulate assignment agreements that seek to transfer insurance
benefits from the policyholder to a third party." Total Care Restoration,
LLC v. Citizens Prop. Ins., 337 So. 3d 74, 75-76 (Fla. 4th DCA 2022); see
also ch. 2019-57, Laws of Fla.
To that end, "[s]ection 627.7152 establishes mandatory
requirements which an AOB must include to be enforceable." Air Quality
Experts, 351 So. 3d at 37. The only such provisions necessary to decide
this appeal are as follows:
(2)(a) An assignment agreement must:

....

2. Contain a provision that allows the assignor to
rescind the assignment agreement without a penalty or
fee by submitting a written notice of rescission signed
by the assignor to the assignee within 14 days after the
execution of the agreement, at least 30 days after the
date work on the property is scheduled to commence if
the assignee has not substantially performed, or at least
30 days after the execution of the agreement if the
agreement does not contain a commencement date and
the assignee has not begun substantial work on the
property.

....

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 6. Contain the following notice in 18-point uppercase
and boldfaced type:

YOU ARE AGREEING TO GIVE UP CERTAIN
RIGHTS YOU HAVE UNDER YOUR INSURANCE
POLICY TO A THIRD PARTY, WHICH MAY RESULT
IN LITIGATION AGAINST YOUR INSURER. PLEASE
READ AND UNDERSTAND THIS DOCUMENT BEFORE
SIGNING IT. YOU HAVE THE RIGHT TO CANCEL
THIS AGREEMENT WITHOUT PENALTY WITHIN 14
DAYS AFTER THE DATE THIS AGREEMENT IS
EXECUTED, AT LEAST 30 DAYS AFTER THE DATE
WORK ON THE PROPERTY IS SCHEDULED TO
COMMENCE IF THE ASSIGNEE HAS NOT
SUBSTANTIALLY PERFORMED, OR AT LEAST 30
DAYS AFTER THE EXECUTION OF THE AGREEMENT
IF THE AGREEMENT DOES NOT CONTAIN A
COMMENCEMENT DATE AND THE ASSIGNEE HAS
NOT BEGUN SUBSTANTIAL WORK ON THE
PROPERTY. HOWEVER, YOU ARE OBLIGATED FOR
PAYMENT OF ANY CONTRACTED WORK
PERFORMED BEFORE THE AGREEMENT IS
RESCINDED. THIS AGREEMENT DOES NOT
CHANGE YOUR OBLIGATION TO PERFORM THE
DUTIES REQUIRED UNDER YOUR PROPERTY
INSURANCE POLICY.
§ 627.7152(2)(a) (emphasis added). The statute expressly provides that
an assignment that fails to comply with any of the provisions of
subsection 627.7152(2) "is invalid and unenforceable." § 627.7152(2)(d);
see also Air Quality Experts, 351 So. 3d at 39 ("An assignee under a
noncomplying AOB cannot enforce the contract because the Legislature
has specifically stated that such contracts are invalid and
unenforceable.").
Here, even the full six-page document fails to include a provision
containing all of the recission terms expressly required by section
627.7152(2)(a)2. Accordingly, under the plain language of subsection
(2)(d), the AOB is "invalid and unenforceable."

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 It is undisputed that the document attached to the complaint
contains the uppercase and boldfaced statement required by subsection
627.7152(2)(a)6. But that statement, by itself, does not include all of the
terms expressly required under the parallel subsection 627.7152(2)(a)2.
In particular, subsection (2)(a)2 requires a provision that allows
recission "without a penalty or fee," whereas the required uppercase and
boldfaced statement in subsection (2)(a)6 mentions a "penalty," but not a
"fee." Further, subsection (2)(a)2 expressly requires a provision that
permits the assignor to rescind by submitting a "written notice," whereas
the required uppercase and boldfaced statement in subsection (2)(a)6 is
silent as to the mechanism for doing so. Thus, the required uppercase
and boldfaced statement in subsection (2)(a)6 lacks two separate terms
expressly required by subsection (2)(a)2.3
Although another provision of the document attached to the
complaint also addresses recission, it likewise does not satisfy
subsection (2)(a)2, neither considered individually nor in concert with the
uppercase and boldfaced statement required by subsection (2)(a)6. In
particular, the additional provision in Gale Force's document provides:
Customer Cancellation. The Customer may cancel this
contract by delivering to the Contractor a written, signed, and
dated notice stating "I, [Customer's Full Name], hereby cancel
my contractual agreement with Gale Force Roofing and
Restoration LLC." In the event the Customer cancels this
Agreement, Customer agrees the Contractor shall be entitled
to payment for the work already performed on the Property.
The Customer and the Contractor agree that neither shall be

3 Although we have reached this conclusion through a textual

analysis of the plain language of the statute, we also note that the
contrary interpretation would render subsection (2)(a)2 entirely
superfluous. If the uppercase and boldfaced statement required by
subsection (2)(a)6 were sufficient on its own to satisfy the requirements
of subsection (2)(a)2, then it would do so in every case.

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 permitted to cancel/rescind this agreement after the
commencement of substantial work on the Property; and, in
the event that any party does cancel this agreement after
installation has commenced, the non-canceling party shall be
entitled to all damages, including consequential damages,
and reasonable attorney's fees and costs.
Unlike the required uppercase and boldfaced statement of
subsection (2)(a)6, this provision does specify that recission is
accomplished by "written" notice. But it nowhere mentions the fourteen-
day deadline required by subsection (2)(a)2, nor does it mention that
such recission is without a penalty or fee. Thus, it also fails to satisfy
subsection (2)(a)2 in multiple ways.
To the extent the two provisions—the required uppercase and
boldfaced statement of subsection (2)(a)6 and the "Customer
Cancellation" paragraph in Gale Force's document—might be considered
together to achieve compliance with subsection (2)(a)2, the plain
language of the statute forecloses such an analysis. In particular,
subsection (2)(a)2 does not speak in terms of rights or duties under the
contract; instead, it expressly requires that the AOB "[c]ontain a
provision" setting forth the specified recission terms. (Emphasis added.)
By specifying that the AOB must have "a" singular "provision"
setting forth these several terms, the legislature has prohibited piecemeal
compliance among several provisions. See, e.g., Samples v. Fla. Birth-
Related Neuro. Inj. Comp. Ass'n, 114 So. 3d 912, 916 (Fla. 2013)
(rejecting plural interpretation of statute where plain language is
unambiguously stated in the singular). Moreover, subsection (2)(a)
contains parallel requirements addressing the substance of the AOB's
terms versus their presentation, showing that the legislature knows the
difference between the two. Compare, e.g., § 627.7152(2)(a)5 (requiring
that the AOB "[r]elate only to" certain work), with §§ 627.7152(2)(a)2, 3,

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4, 6, 7 (each requiring that the AOB "[c]ontain" a specified provision, a
written estimate, or a notice).
At bottom, nowhere in the document attached to the complaint is
"a provision" that complies with all of the express requirements of
subsection (2)(a)2. Thus, even considering all six pages as urged by Gale
Force, the AOB is "invalid and unenforceable" under the plain language
of the statute. § 627.7152(2)(d). Under this analysis, we do not reach
the other deficiencies asserted by American Integrity. Because the AOB
fails to comply with section 627.7152(2)(a)2, the trial court did not err in
dismissing the complaint, and we must affirm.
Affirmed.

LUCAS and LABRIT, JJ., Concur.

__________________________

Opinion subject to revision prior to official publication.

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