In Gen. Contractors of Cent. Fla. LLC v. Heritage Prop.
& Cas. Ins. Co., No. 3D21-34, 2021 WL 5617450 (Fla. Dist. Ct. App. Dec.
1, 2021), the Third District Court of Appeal affirmed the lower court’s
decision to dismiss General Contractor of Central Florida’s (“General
Contractors”) lawsuit seeking payment for work it performed on its client’s home.
General Contractors provided emergency water removal
services to Michael Concepcion (“Mr. Concepcion”). The damage to Mr.
Concepcion’s home was covered as a peril under an insurance policy issued by
Heritage Property and Casualty Insurance (“Heritage”). Mr. Concepcion assigned
his rights and benefits under this policy to General Contractors.
When General Contractors submitted an invoice, Heritage
refused to pay for the water removal services. General Contractors then sued
Heritage for breach of contract. General Contractors asserted it had a right to
payment as an assignee of Mr. Concepcion, the insured.
In the lower court, Heritage moved to dismiss the lawsuit.
Heritage argued General Contractors did not have standing to sue for breach of
contract because the insurance policy contained a provision requiring all
mortgagees to consent in writing to any post-loss assignment of rights and
benefits. Only Mr. Concepcion executed the assignment of rights and benefits to
General Contractors. Wells Fargo, the entity listed as the mortgagee on the
insurance policy, had not consented in writing to the assignment.
The lower court dismissed the lawsuit, holding General
Contractors did not have standing sue based on the provision in the policy. The
lower court relied on an opinion from the Fourth District Court of Appeal,
which holds a provision requiring the consent of all insureds and mortgagees for
an assignment of rights is enforceable. The Third District Court adopted this
holding.
General Contractors argued the lower court failed to consider the existence of equitable assignment. The appellate court rejected this argument because the Complaint did not sufficiently plead a claim for equitable assignment. The Court also noted General Contractors never requested to amend the Complaint to include an equitable assignment claim. Ultimately, the failure to amend the Complaint precluded the Court from considering the issue of equitable assignment. The Court concluded General Contractors’ lawsuit was due to be dismissed.
