Third District Court of Appeal
State of Florida
Opinion filed October 19, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1348
Lower Tribunal No. 19-36841
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Kwaku Adjei, et al.,
Appellants,
vs.
First Community Insurance Company,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Alan Fine,
Judge.
Font & Nelson, PLLC, Jose P. Font, and Christopher Herrera (Fort
Lauderdale), for appellants.
Cole, Scott & Kissane, P.A., and Mark D. Tinker (Tampa), for appellee.
Before LOGUE, MILLER, and BOKOR, JJ.
MILLER, J.
Appellants, Jeremiah and Joel Adjei, as assignees of Kwaku and
Beatrice Adjei, challenge a final order dismissing their breach of contract
lawsuit against appellee, First Community Insurance Company, for lack of
standing. The primary issue on appeal is whether applying section
627.7152, Florida Statutes (2019), to the assignment of a claim for post-loss
insurance benefits under a policy issued prior to enactment of the statute is
constitutionally authorized.1 Concluding that applying the statute to the
assignment in this case does not constitute an impermissible retroactive
application, we affirm.
BACKGROUND
In 2016, First Community issued a residential homeowner’s policy to
the named insureds, Kwaku and Beatrice Adjei. After their property
sustained damage during Hurricane Irma, the named insureds submitted a
claim under the policy. First Community paid a portion of the claimed
damages. The named insureds filed suit against First Community but later
voluntarily dismissed the case.
1
We summarily reject the notion that section 627.7153, Florida Statutes
(2019), which governs anti-assignment provisions in insurance policies, has
any application to this case. The statute was enacted three years after the
policy issued, and the policy is devoid of any anti-assignment clause.
Moreover, we find no abuse of discretion in the dismissal “with prejudice.”
2
On July 1, 2019, section 627.7152, Florida Statutes, took effect. Over
three months later, the named insureds assigned their benefits under the
policy to their children, appellants.2 The assignment stated in its entirety:
I, Beatrice Adjei and Kwaku Adjei, hereby assign Joel Adjei and
Jeremiah Adjei any and all rights and benefits that I have in
relation to any and all insurance policies that were maintained in
relation to the residence located at 17168 SW 144th Place,
Miami, FL 33177, including but not limited to the policy that was
maintained by First Community Insurance Company, and
identified by policy number 09-0011605944-4-02 in relation to
claim number 17-7275. This assignment as stated is in
consideration of the fact that the referenced residence has
served, and continues to serve as Joel and Jeremiah Adjei's
primary residence in relation to this agreement to insure
maintenance repairs and they have been agreed to maintain,
repair or otherwise take responsibility for the various others
obligations and they have liabilities associated with the
ownership of the residence.
Relying upon the assignment, appellants filed suit against First
Community. The trial court dismissed early iterations of the complaint,
without prejudice, on the basis the assignment failed to comply with the
requirements of section 627.7152, Florida Statutes. The named insureds
then attempted to file suit in their own names. The court dismissed that
claim, too, and appellants eventually filed a fourth amended petition for
declaratory relief. In the complaint, appellants sought a declaration as to
2
The assignment is undated, but the parties agree it was executed on
October 25, 2019.
3
their rights and remedies under the policy. Part and parcel with their factual
allegations, appellants contended they were not service professionals but
rather the children of the named insureds.
First Community again sought dismissal on the basis that appellants
lacked standing because the assignment of benefits failed to conform with
section 627.7152, Florida Statutes. In furtherance of its motion, First
Community contended the assignment was noncompliant because it omitted
essential items, including the assignees’ signatures, a rescission provision,
a cost estimate, an indemnification clause, a boilerplate statutory notice
provision, and language confirming that the assignees would furnish the
insurer with a copy of the agreement within three business days after either
execution or commencement of work.
Appellants countered by arguing that the assignment was not subject
to the requirements of section 627.7152, Florida Statutes, because it did not
fall within the statutory definition of “assignment agreement,” and applying
the statute to the assignment of a claim under a 2016 policy constituted an
unconstitutional impairment of contract. After entertaining argument, the trial
court dismissed the case. Appellants unsuccessfully sought rehearing, and
the instant appeal ensued.
4
STANDARD OF REVIEW
“A de novo standard of review applies when reviewing whether a party
has standing to bring an action,” Boyd v. Wells Fargo Bank, N.A.,
143 So. 3d
1128, 1129 (Fla. 4th DCA 2014), and the dismissal of a complaint with
prejudice, Sanchez v. County of Volusia,
331 So. 3d 853, 854 (Fla. 5th DCA
2021). Similarly, we review de novo whether applying section 627.7152,
Florida Statutes, to an assignment of benefits under a policy incepted prior
to the enactment of the statute is constitutionally permissible.
ANALYSIS
First enacted in 2019, section 627.7152, Florida Statutes, regulates
certain assignment agreements “seek[ing] to transfer insurance benefits
from the policyholder to a third party.”3 Total Care Restoration, LLC v.
Citizens Prop. Ins. Corp.,
337 So. 3d 74, 76 (Fla. 4th DCA 2022). The statute
applies to any assignment of post-loss benefits “to or from a person providing
services to protect, repair, restore, or replace property or to mitigate against
further damage to the property” executed on or after July 1, 2019. §
627.7152(1)(b), (13), Fla. Stat.
3
The 2019 version of section 627.7152, Florida Statutes, is the applicable
version in this case because that is the version of the statute that was in
effect when the assignment was executed. The statute has since been
amended, most recently in 2022. Ch. 2022-2-D, § 18, Laws of Fla.
5
The statute contains a “checklist” of terms that must be included within
any such assignment agreement. Included among the requirements is that
the assignment must be in writing, executed by and between the assignor
and the assignee, and contain several boilerplate provisions regarding
liability, rescission, and delivery of the agreement to the insurer. See §
627.7152(2)(a), Fla. Stat. Statutorily noncompliant assignment agreements,
without exception, are deemed “invalid and unenforceable.” §
627.7152(2)(d), Fla. Stat.
Appellants do not contend their assignment is statutorily compliant.
Rather, they claim their assignment is not subject to the reach of section
627.7152, Florida Statutes, because it was not “to or from a person providing
services to protect, repair, restore, or replace property or to mitigate against
further damage to the property.” § 627.7152(1)(b) Fla. Stat.
While not every assignment triggers the requirements of section
627.7152, Florida Statutes, here, the plain language of the assignment belies
appellants’ claim that they did not agree to restore or repair the property.
The assignment specifically provides that appellants warrant to “insure
maintenance repairs” and “agree[] to maintain, repair or otherwise take
responsibility for the various other obligations” of ownership. Consequently,
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the assignment, as drafted, implicates the statutory scheme. Thus, we turn
our examination to the constitutional concerns.
Article 1, Section 10 of the Constitution of the United States prohibits
any state from passing “a valid law or enactment impairing the obligation of
contracts.” State ex rel. Sovereign Camp, W.O.W. v. Boring,
164 So. 859,
865 (Fla. 1935). Correspondingly, article 1, section 10 of the Florida
Constitution provides that “No . . . law impairing the obligation of contracts
shall be passed.” Art. I, § 10, Fla. Const. Consistent with these provisions,
the Florida Supreme Court has construed contractual impairment as a “wall
of absolute prohibition.” State, Dep’t of Transp. v. Edward M. Chadbourne,
Inc.,
382 So. 2d 293, 297 (Fla. 1980).
“Determining proper limitations on the temporal reach of statutes,”
however, “is a recurring problem in the law.” R.A.M. of S. Fla., Inc. v. WCI
Communities, Inc.,
869 So. 2d 1210, 1215 (Fla. 2d DCA 2004). Ordinarily,
procedural statutes apply retroactively, while substantive measures are
presumed to apply prospectively. See Young v. Altenhaus,
472 So. 2d 1152,
1154 (Fla.1985). That is not to say that substantive statutes cannot apply
retroactively. Rather, they may be applied retroactively only if a two-prong
inquiry is satisfied:
[T]he court must first determine if there is “clear evidence of
legislative intent to apply the statute retrospectively.”
7
[Metropolitan Dade County. v. Chase Fed. Hous. Corp.,
737 So.
2d 494, 499 (Fla. 1999)]. Once the first inquiry is made, and only
“[i]f the legislation clearly expresses an intent that it must apply
retroactively, then the second inquiry is whether retroactive
application is constitutionally permissible.”
Id. (citing State Farm
Mut. Auto. Ins. v. Laforet,
658 So. 2d 55, 61 (Fla.1995)); see also
Florida Hosp. Waterman, Inc. v. Buster,
984 So. 2d 478, 487
(Fla. 2008) (“[A] retroactivity analysis is two-pronged, asking first
if the relevant provision provides for retroactive application, and
second if such application is constitutionally permissible.”).
Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc.,
67 So. 3d 187,
194 (Fla. 2011) (third and fourth alteration in original).
As reiterated recently by Justice Canady, “sometimes ‘[t]he distinction
between substantive and procedural law is neither simple nor certain.’” Love
v. State,
286 So. 3d 177, 183 (Fla. 2019) (alteration in original) (quoting
Caple v. Tuttle’s Design-Build, Inc.,
753 So. 2d 49, 53 (Fla. 2000)). Despite
this lack of clarity, it is abundantly clear that laws that “would impair rights a
party possessed when he acted, increase a party’s liability for past conduct,
or impose new duties with respect to transactions already completed” are
substantive in nature. Landgraf v. USI Film Prod.,
511 U.S. 244, 280 (1994).
Conversely, statutes that involve “the means and methods to apply and
enforce those duties and rights” are deemed procedural. Alamo Rent-A-Car,
Inc. v. Mancusi,
632 So. 2d 1352, 1358 (Fla. 1994). A retroactive application
of procedural statutes is permissible because “no one has a vested interest
8
in any given mode of procedure.” State v. Kelley,
588 So. 2d 595, 597 (Fla.
1st DCA 1991).
In accord with these principles, “it is generally accepted that the statute
in effect at the time an insurance contract is executed governs substantive
issues arising in connection with that contract.” Hassen v. State Farm Mut.
Auto. Ins. Co.,
674 So. 2d 106, 108 (Fla. 1996). Here, rather than address
the omission of the “checklist” within the assignment agreement, appellants
rely upon the Florida Supreme Court’s decision in Menendez v. Progressive
Express Insurance Co.,
35 So. 3d 873 (Fla. 2010), for the proposition that
portions of the statute not implicated in this case—a pre-suit notice
requirement and fee shifting provision—impair substantive contractual rights.
We decline the invitation to render an advisory opinion as to the retroactivity
of these two provisions and instead confine our analysis, as we must, to the
issue at hand—namely, whether requiring the inclusion of the statutory
“checklist” in the instant assignment runs afoul of constitutional concerns.
It is axiomatic that a Florida policyholder is ordinarily authorized to
freely assign a post-loss insurance claim. See § 627.422, Fla. Stat. (2022);
Citizens Prop. Ins. Corp. v. Ifergane,
114 So. 3d 190, 195 (Fla. 3d DCA 2012)
(“Post-loss insurance claims are freely assignable without the consent of the
insurer.”); Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co.,
185 So.
9
3d 638, 643 (Fla. 2d DCA 2016) (same); see also Raven Env’t. Restoration
Servs., LLC v. United Nat’l Ins. Co.,
489 F. Supp. 3d 1372, 1377 n.2 (S.D.
Fla. 2020) (“Florida law permits a policyholder of an authorized insurance
policy to freely assign post-loss insurance claims.”). This is because
“[g]enerally, rights under a contract are assignable.” Pro. Consulting Servs.,
Inc. v. Hartford Life & Accident Ins. Co.,
849 So. 2d 446, 447 (Fla. 2d DCA
2003). This may be the case even if the policy contains an anti-assignment
clause. § 627.422(2), Fla. Stat.; Extreme Emergency Fire & Water
Restoration LLC v. Certain Underwriters at Lloyd’s of London,
314 So. 3d
559, 560 (Fla. 3d DCA 2020).
Further, as appellants correctly observe, the policy in this case does
not purport to prohibit or restrict the right of an insured to assign a post-loss
claim. As a result, at the time the policy issued, the named insureds were
free to execute a post-loss assignment.
At first glance, the “checklist” in section 627.7152, Florida Statutes,
might appear to curtail that right. A closer reading, however, yields the
inescapable conclusion that this portion of the statute merely regulates the
contents of any assignment agreement by requiring the contracting parties
to include certain language. Had the legislature wished to do so, it
indubitably could have designated certain claims unassignable, prohibited a
10
class of potential assignees from accepting an assignment, limited the
circumstances under which an insured might legally assign a claim, or
imposed any other substantively restrictive measures. Consequently,
insofar as it merely requires the inclusion of certain words, we conclude the
statute solely “affect[s] rights under the assignment of benefits, not
substantive rights under the insurance policy.” SFR Servs., LLC v. Indian
Harbor Ins. Co.,
529 F. Supp. 3d 1285, 1290 (M.D. Fla. 2021). Thus,
applying the provisions to assignments executed after its effective date does
not “impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to transactions
already completed.” Landgraf,
511 U.S. at 280.
This conclusion is consistent with several decisions by our sister
courts. See Kidwell Grp., LLC v. Olympus Ins. Co., 47 Fla. L. Weekly D1571,
D1571 (Fla. 5th DCA July 22, 2022) (“[B]ased on the plain language of
[section 627.7152, Florida Statutes], the trial court properly applied section
627.7152 prospectively to the assignment agreement in this case.”); Total
Care Restoration, LLC, 337 So. 3d at 77 (“This case does not involve the
application of a statute to a preexisting insurance policy; it concerns a
statute’s application to an assignment created after the effective date of the
statute. Thus, section 627.7152—the law in effect at the time the assignment
11
of benefits was executed—was properly applied to the assignment in this
case.”); see also SFR Servs., LLC, 529 F. Supp. at 1289–90 (maintaining
section 627.7152, Florida Statutes, did not affect substantive rights under
insurance policy and only established procedural requirements for effective
formation of an assignment of benefits); JPJ Servs. LLC v. N.H. Ins. Co., No.
21-14329-CIV,
2022 WL 1908970, at *4–5 (S.D. Fla. June 3, 2022) (applying
section 627.7152, Florida Statutes, to an assignment agreement created in
2020 of an insurance policy issued prior to enactment of section 627.7152,
Florida Statutes). Accordingly, we impute no error to the order on appeal,
and we affirm in all respects.
Affirmed.
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