TOTAL CARE RESTORATION, LLC, A/A/O YOEL BERNAL v. CITIZENS PROPERTY INSURANCE CORPORATION ( 2023 )

Third District Court of Appeal
State of Florida
Opinion filed March 15, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-711
Lower Tribunal No. 21-31745 CC
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Total Care Restoration, LLC, a/a/o Yoel Bernal,
Appellant,
vs.
Citizens Property Insurance Corporation,
Appellee.
An Appeal from the County Court for Miami-Dade County, Elijah A.
Levitt, Judge.
Law Office of Chad A. Barr, P.A., and Chad A. Barr and Dalton L. Gray
(Altamonte Springs), for appellant.
Dean, Ringers, Morgan & Lawton, P.A., and Jessica C. Conner
(Orlando), for appellee.
Before EMAS, MILLER and LOBREE, JJ.
EMAS, J.
INTRODUCTION
Total Care Restoration, LLC (as assignee of Yoel Bernal) appeals the
trial court’s order dismissing its breach of contract complaint with prejudice.
The trial court dismissed the complaint based on Total Care’s failure to
comply with section 627.7152(2)(a)4., Florida Statutes (2021), 1 which
provides that an assignment of benefits agreement must “[c]ontain a written,
itemized, per-unit cost estimate of the services to be performed by the
assignee.” (Emphasis added). The assignment of benefits agreement in the
instant case contained a generic list of available services, together with their
unit cost, which the trial court concluded was insufficient to satisfy the
statute’s requirement, rendering the assignment agreement statutorily
invalid and unenforceable. We agree with the trial court’s conclusion and, for
the reasons that follow, affirm the trial court’s order.
FACTUAL BACKGROUND
Yoel Bernal’s home, insured by Citizens, suffered a loss due to water
damage on June 17, 2021. Twelve days later, Bernal entered into an
assignment agreement, by which he assigned his insurance benefits to Total
Care in exchange for water dry-out services performed on Bernal’s property.
1
The statute was later amended in 2022, see Ch. 2022-271, § 21, Laws of
Florida. Although subsection (2)(a)4. was moved to subsection (2)(a)5., the
statutory language remained unchanged.
2
Attached to the assignment agreement was a document entitled “Itemized
per-Unit Cost Estimate.” That document contained a list of available
“emergency” and “non-emergency” services, together with a unit price for
each service. After performing services on Bernal’s property, Total Care
submitted its assignment agreement and invoices to Citizens. Citizens
denied full reimbursement. In response, Total Care filed the underlying
lawsuit for breach of contract, seeking to recover $16,066.32 in damages.
Attached to the complaint was the assignment of benefits agreement (with
the list described above), together with invoices submitted to Citizens for the
work performed.
Citizens moved to dismiss the complaint with prejudice, contending
that the assignment of benefits agreement, on its face, failed to comply with
section 627.7152(2)(a)4., Florida Statutes (2021) (requiring that an
assignment of benefits agreement “[c]ontain a written, itemized, per-unit cost
estimate of the services to be performed by the assignee”) rendering the
assignment agreement invalid and unenforceable. Id. § 627.7152(2)(d)
(providing: “An assignment agreement that does not comply with this
subsection is invalid and unenforceable.”)
More specifically, Citizens contended the assignment agreement did
not contain “a written, itemized, per-unit cost estimate of the services to be
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performed by assignee” as required by the statute. In response, Total Care
contended that the assignment agreement contained an itemized per-unit
cost estimate in compliance with the statute; Citizens lacked privity to
challenge the assignment agreement; and non-compliance with the statute
would render the assignment agreement voidable, not void, and—if
voidable—Citizens would have no standing to challenge the assignment
agreement since it was not a party to, or third-party beneficiary of, the
assignment agreement.
Following a hearing, the trial court entered its order dismissing the case
with prejudice, on the basis that the assignment agreement was invalid and
unenforceable because it does not contain the itemized, per-unit cost
estimate of the services to be performed as required by section
627.7152(2)(a)4., but instead simply a list of available services offered by
Total Care. This appeal followed.
STANDARD OF REVIEW
The court reviews the granting of a motion to dismiss de novo.
People's Tr. Ins. Co. v. Alonzo-Pombo, 307 So. 3d 840, 842 (Fla. 3d DCA
2020). In doing so, a reviewing court is generally limited to the four corners
of the complaint and any attachments. Fla. R. Civ. P. 1.130(b) (“Any exhibit
attached to a pleading must be considered a part thereof for all purposes.”)
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In the event of an inconsistency between the allegations of the complaint
and the language in the attachment, the attachment controls. K.R. Exch.
Servs., Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So. 3d 889, 894 (Fla. 3d
DCA 2010) (“It is well settled that the court must consider an exhibit attached
to the complaint together with the complaint's allegations, and that the exhibit
controls when its language is inconsistent with the complaint's allegations.”)
Questions of law, such as construction of a statute, are also subject to de
novo review. Aramark Unif. and Career Apparel, Inc. v. Easton, 894 So. 2d
20, 23 (Fla. 2004); Mattino v. City of Marathon, 345 So. 3d 939, 943 (Fla. 3d
DCA 2022).
DISCUSSION AND ANALYSIS
Enacted by the legislature in 2019, section 627.7152, Florida Statutes
(2021), governs assignment of benefits agreements. Subsection (2)(a)
enumerates several requirements for a valid and enforceable assignment of
benefits agreement. Relevant to the instant case, the statute requires: “An
assignment agreement must. . . [c]ontain a written, itemized, per-unit cost
estimate of the services to be performed by the assignee.” Id. §
627.7152(2)(a)4. In addition, section (2)(d) provides: “An assignment
agreement that does not comply with this subsection is invalid and
unenforceable.”
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The provision’s plain language requires an itemized cost estimate of
services “to be performed” on the property. By contrast, the document
provided by Total Care is nothing more than a generic menu of available
services offered by Total Care, listing the cost of each available service.
Here is the actual document attached to the assignment agreement:
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While Total Care contends this document meets the statute’s
requirement of “a written, itemized, per-unit cost estimate of the services to
be performed by the assignee,” we conclude it falls far short. It is not tailored
to the insured or to the services to be performed on this particular property.
Instead, it is simply a listing of services offered by Total Care, divided into
two categories—"Emergency Service Price” and “Non-Emergency Prices.”
The services listed under the two categories overlap nearly completely
(the emergency category lists twenty-two services, while the non-emergency
category lists eighteen identical services), with the difference being the cost
of an available service performed on an emergency versus non-emergency
basis. Such a generic menu of services available to any customer manifestly
fails to comply with the “itemized, per-unit cost estimate of the services to be
performed” required by section 627.7152(2)(a)4.
Indeed, this document is not an “estimate” at all, because it fails to set
forth: the specific services being performed by Total Care on Mr. Bernal’s
property; whether those services are being performed on an emergency or
non-emergency basis; and the estimated cost for each of the services being
performed on the property based on the number of “units” (e.g., number of
hours/days needed for each service and/or number of square feet involved
for each specific service being performed on the insured’s property).
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We find persuasive the reasoning and holding of our sibling court in Air
Quality Experts Corp. v. Fam. Sec. Ins. Co., 351 So. 3d 32 (Fla. 4th DCA
2022), which is indistinguishable in all material respects from this case. In
Air Quality, an assignee under a homeowner’s property insurance
assignment agreement submitted bills to the insurer. When the insurer
refused to pay, the assignee sued, attaching to the complaint the assignment
agreement contract and two invoices. The assignment agreement included
“a standard price list of the types of services offered by the assignee with
their unit price.” Id. at 37. As the Fourth District explained, “[t]here was
nothing in the attachment which tied the price list to the insured’s home so
that it could be considered an estimate.” Id.
The insurer moved to dismiss with prejudice arguing that the amended
statement of claim (on its face) failed to meet the requirement that “[a]n
assignment agreement must . . . [c]ontain a written, itemized, per-unit cost
estimate of the services to be performed by the assignee,” and the failure to
comply meant that the assignment was “invalid and unenforceable.” §§
627.7152(2)(a)4., (2)(d).
In response, the assignee in Air Quality raised many of the same
arguments Total Care raises here: the price list attached to the assignment
agreement was sufficient to meet the statutory requirements; and the insurer
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did not have standing to challenge the assignment’s validity on two bases:
(a) if the assignment was invalid, it would be voidable, not void; and (b) the
insurer was not a party to the assignment or in privity of contract with the
assignee. In affirming the trial court’s order, the Fourth District rejected each
of these arguments as without merit. We agree fully with our sister court’s
reasoning.
For example, as to the assignee’s standing arguments, the court
maintained its focus on the statute’s plain language, explaining that it is the
assignee, rather than the insurer, who lacks standing, as it sought to enforce
a claim to insurance proceeds based upon “an invalid assignment.” Id. at 37-
38. The Fourth District further held:
Here the statute expressly declares [that] an assignment
violative of its requirements is ‘invalid and unenforceable’,
precluding its enforcement by courts. § 627.7152(2)(d). As the
assignee’s right to sue the insurance company derives from an
invalid document, the courts cannot enforce it.
Id. at 38-39.
As for Total Care’s contention that, under subsection (2)(d), an “invalid
and unenforceable” assignment agreement is rendered merely voidable not
void, we reject (as did Air Quality) this proposed construction of the statutory
phrase “invalid and unenforceable.” We also reject Total Care’s related
argument that the statutory phrase “invalid and unenforceable” is at best
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ambiguous, and thus the trial court was premature in dismissing the action.
To the extent a different conclusion was reached in SFR Services, LLC v.
Indian Harbor Insurance Co., 529 F. Supp. 3d 1285, 1294 (M.D. Fla. 2021)
(“Even if the statutory terms ‘invalid and unenforceable’ could mean ‘void,’
they could also mean voidable. So the question of whether a noncomplying
AOB is void or merely voidable cannot be answered merely by referring
without further analysis to the statutory language ‘invalid and
unenforceable’”), we disagree and instead adopt the reasoning of our sister
court in Air Quality:
SFR does not cite to any Florida law when it stated that a statute
may declare a contract void but instead mean that it is voidable.
Indeed, we can find no such law. The court also noted that the
Legislature did not use the word “void” but “invalid.” SFR Servs.,
529 F. Supp. 3d at 1293-94.
While the definitions of “void” and “invalid” are distinct, they are
not substantially different. “Void” means “of no legal effect,” while
“invalid” means “not legally binding.” Black's Law Dictionary (11th
ed. 2019). Whether the contract is of no legal effect or is not
legally binding, it is unenforceable. As we must apply the plain
meaning of a statute, the Legislature has precluded the
enforcement of an AOB which does not include the mandatory
statutory requirements.
Air Quality, 351 So. 3d at 38.
The Fifth District has likewise declined to adopt the reasoning of SFR
Services, see Kidwell Grp., LLC v. ASI Preferred Ins. Corp., 351 So. 3d 1176(Fla. 5th DCA 2022), and held that the insurer has standing to challenge the
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assignment pursuant to section 627.7152, and that the phrase “invalid and
unenforceable” as used in this statute, does not mean voidable. We agree,
and conclude that Total Care’s assignment is precisely what the plain
language of the statute says it is: “invalid and unenforceable,” and Citizens
has standing to challenge the assignment as such. Given that the statute is
unambiguous, and that the assignment agreement, on its face, fails to
comply with section 627.7152(2)(a)4., the assignment is invalid and
unenforceable, and the trial court properly dismissed the complaint with
prejudice.
CONCLUSION
We adopt the rationale and holding of the Fourth District in Air Quality
and the Fifth District in Kidwell. The failure to comply with section
627.7152(2)(a)4 rendered the assignment agreement “invalid and
unenforceable” under section 627.7152(2)(d), and subject to challenge by
Citizens, the insurer. The trial court properly dismissed Total Care’s
complaint with prejudice as its breach of contract action was premised upon
a statutorily invalid and unenforceable assignment of benefits agreement.
Affirmed.
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