Third District Court of Appeal
State of Florida
Opinion filed August 25, 2021.
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No. 3D19-1830
Lower Tribunal No. 14-25285
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Aundrea Cole,
Appellant,
vs.
Citizens Property Insurance Corporation, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Peter R.
Lopez, Judge.
Cernitz Shanbron, LLC, and Justin Cernitz; Alvarez, Feltman, Da Silva
& Costa, PL, and Paul B. Feltman, for appellant.
Mandelbaum, Fitzsimmons, Hewitt & Cain, P.A., and Samuel R.
Mandelbaum (Tampa); Link & Rockenbach, P.A., and Kara Rockenbach
Link and Daniel M. Schwarz (West Palm Beach), for appellee.
Before SCALES, LINDSEY and MILLER, JJ.
SCALES, J.
Appellant, co-plaintiff below, Aundrea Cole, is the named insured on a
homeowner’s insurance policy issued by appellee, defendant below,
Citizens. Cole, and her co-plaintiff, A.M.Z. Investment Group, LLC (the
“LLC”),1 appeal the trial court’s May 17, 2019 order dismissing, with
prejudice, their Fourth Amended Complaint against Citizens. Because the
operative complaint adequately alleged that Cole had an insurable interest
in the property and that the LLC had standing, we reverse the trial court’s
dismissal order.
According to appellants’ complaint,2 approximately two months after
Cole obtained the subject policy, Cole “changed the structure of the
1
The LLC did not file its own notice of appeal and Cole’s notice of appeal
did not identify the LLC as an appellant. Further, the cover pages of Cole’s
initial and reply briefs identify only Cole as an appellant. Nevertheless, Cole’s
briefing includes argument on behalf of the LLC, and Citizens, rather than
challenging the LLC’s status as a proper appellant (via a motion to dismiss
or otherwise), filed an answer brief that responds to Cole’s appellate
argument pertaining to the LLC. At oral argument, in response to a panel
member’s question, Citizens argued for the first time that the LLC’s failure to
file a notice of appeal deprives us of jurisdiction to review the challenged
order as it relates to the LLC. We conclude, however, under the facts and
circumstances presented here, that the LLC’s failure to file a notice of appeal
did not prejudice Citizens, see Pakonis v. Clark,
183 So. 3d 386, 387 (Fla.
3d DCA 2014), and thus, we have jurisdiction to review that portion of the
challenged order dismissing, for lack of standing, the LLC’s claims against
Citizens.
2
For the purposes of our de novo review of an order granting a motion to
dismiss a complaint, this Court accepts as true all well pled allegations in the
2
ownership of the subject insured dwelling, by transferring ownership of the
property into a corporate entity, A.M.Z. Investment Group, LLC., in which
[Cole] is a 25% member.” Later that same year (2013), the property suffered
damage as a result of two vandalism losses.
Cole and the LLC brought the instant action alleging Citizens breached
the insurance contract by failing to fully indemnify Cole and the LLC for the
losses allegedly covered under the policy. The lawsuit also sought
declaratory relief regarding coverage under the policy. Citizens moved to
dismiss the complaint asserting that, because of Cole’s transfer of the
property to the LLC without Citizens’s consent, Cole had no insurable interest
in the property and the transferee LLC lacked standing to enforce the
insurance policy.
The trial court agreed with Citizens, and entered the challenged final
order determining, as a matter of law, that “once Aundrea Cole transferred
her interest in the subject property to the limited liability corporation, Aundrea
Cole no longer had an insurable interest in the property and therefore cannot
maintain this lawsuit against [Citizens].” The trial court also found, without
further elaboration, that the LLC “lacks standing to sue Citizens.”
complaint. Chakra5, Inc. v. City of Miami Beach,
254 So. 3d 1056, 1061 (Fla.
3d DCA 2018).
3
We reverse the dismissal order as to Cole because “[i]n Florida an
‘insurable interest’ is not determined by the concept of title, but rather
whether the insured has a substantial economic interest in the property.”
Aetna Ins. Co. v. King,
265 So. 2d 716, 718 (Fla. 1st DCA 1972). The King
case is premised upon section 627.405 of the Florida Statutes that, among
other things, defines what constitutes an “insurable interest” in property. This
statute reads, in its entirety, as follows:
(1) No contract of insurance of property or of any interest in
property or arising from property shall be enforceable as to the
insurance except for the benefit of persons having an insurable
interest in the things insured as at the time of the loss.
(2) “Insurable interest” as used in this section means any
actual, lawful, and substantial economic interest in the safety
or preservation of the subject of the insurance free from loss,
destruction, or pecuniary damage or impairment.
(3) The measure of an insurable interest in property is the
extent to which the insured might be damnified by loss, injury,
or impairment thereof.
§ 627.405, Fla. Stat. (2013) (emphasis added).
Cole’s complaint alleges that, notwithstanding her quitclaim of the
property to the LLC, she maintained an insurable interest in the property. At
this stage of the proceedings, the trial court was required to accept that
allegation as true. Whether and to what extent Cole has a “substantial
economic interest” in keeping the subject property “free from loss,
4
destruction, or pecuniary damage or impairment” presents a fact issue that
cannot be resolved, as a matter of law, at this stage of the litigation. See e.g.,
Rivera v. Praetorian Ins. Co., No. 8:18-cv-1059-T-23SPF,
2020 WL
3250131, at *3 (M.D. Fla. Mar. 31, 2020) (denying summary judgment for
insurer because extent to which prior owner, who conveyed title to another,
retained a “substantial economic interest” in insured home presented dispute
of material fact).
We similarly reverse the trial court’s dismissal as to the LLC’s lack of
standing to sue Citizens. “Generally, the issue of standing is not properly
raised in a motion to dismiss unless the allegations of the complaint or its
attachments negate a plaintiff’s standing.” Wilmington Sav. Fund Society,
FSB v. Contreras,
278 So. 3d 744, 748 (Fla. 5th DCA 2019). As mentioned
in note 2, supra, under our de novo standard of review we must accept as
true the LLC’s well pled allegations. Sousa v. Zuni Transp., Inc.,
286 So. 3d
820, 822 (Fla. 3d DCA 2019). We are compelled to reverse because, in the
operative complaint, the LLC alleged both that it had an insurable interest as
the owner of the property, and that Citizens had not paid it in full for covered
losses.
Id.
We therefore reverse the trial court’s May 17, 2019 final order
dismissing the claims of both Cole and the LLC.
5
Reversed.3
On Motion for Rehearing Rehearing En Banc, Certification and
Clarification
PER CURIAM.
On July 17, 2021, Citizens filed a Motion for Rehearing, Rehearing En
Banc, 4 Certification and Clarification (the “Motion”). In the Motion,
Citizens argues, inter alia, that the recent opinion of our sister court
in Reconco v. Integon National Insurance Co.,
312 So. 3d 914 (Fla. 4th DCA
2021) compels affirmance. Reconco, though, is inapposite. We therefore
deny the motion for rehearing but write separately to address Citizens’s
argument that our panel decision is in conflict with Reconco. We deny the
motions for certification and clarification without comment.
In Reconco, after the mortgagor/homeowner failed to maintain the
insurance required by the mortgage, the bank as mortgagee obtained
forced-placed insurance for the encumbered property. The forced-placed
3
Our opinion simply concludes that, in the Fourth Amended Complaint,
appellants have made sufficient allegations to withstand Citizens’s motion to
dismiss. We express no opinion on the extent, if any, of either appellant’s
insurable interest in the property. We also express no opinion as to any
coverage defenses that Citizens may interpose to appellants’ claims, or
whether either appellant is an insured under the policy.
4
This opinion does not address the motion for rehearing en banc.
6
policy obtained by the bank explicitly stated that only the mortgagee was the
insured under the policy and that there was no contract of insurance with the
mortgagor. Id. at 915 (“The contract of insurance is only between the
NAMED INSURED and [the Insurer]. There is no contract of insurance
between the BORROWER and the [Insurer].”).
After the mortgaged property suffered hurricane damage, the
mortgagor, dissatisfied with the insurer’s loss payment to the mortgagee,
filed a declaratory action against the insurer attempting to invoke the policy's
appraisal clause to obtain additional loss payments. In her complaint (to
which the forced-placed policy was appended), the mortgagor alleged she
was an intended third-party beneficiary of the mortgagee's forced-placed
insurance policy and, therefore, had standing to sue the insurer. Affirming
the trial court’s dismissal of the mortgagor's complaint for lack of standing,
the Fourth District concluded that the policy's explicit language disclaiming
the mortgagor's third-party beneficiary status “expresses a clear and
manifest intent not to benefit [the mortgagor].” Id. at 919.
In the Motion, Citizens argues that, pursuant to Reconco, we should
affirm the trial court's dismissal of Cole's Fourth Amended Complaint for lack
of standing because Cole’s insurance policy with Citizens (which was
attached to the complaint) does not identify the LLC as an insured. Citizens
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argues that, as in Reconco, the trial court could adjudicate the LLC’s lack of
standing at the dismissal stage, for the pleadings and exhibits show that the
LLC was not an insured under the policy.
Reconco, though, is distinguishable because the insurance policy in
Reconco expressly and specifically excluded the mortgagor as an insured
under the policy. Thus, the attachment to the Reconco complaint
conclusively negated the plaintiff's standing. See Wilmington Sav. Fund
Society, FSB, 278 So. 3d at 748. In this case, the insurance policy is silent
as to the LLC’s status as an insured, and the policy does not expressly
exclude coverage for the LLC. Because the LLC has alleged an insurable
interest in the property that is not expressly negated by the insurance policy
attached as an exhibit to the complaint, the LLC has stated a cause of action
sufficient to survive the dismissal stage.
Motion for rehearing denied. Motions for certification and clarification
denied.
8
