The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Jose Linares and Celia Linares v. Safepoint Insurance Company ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE KIDWELL GROUP, LLC, d/b/a AIR QUALITY ASSESSORS OF
FLORIDA, a/a/o JOSE LINARES and CELIA LINARES,
Appellant,
v.
SAFEPOINT INSURANCE COMPANY,
Appellee.
No. 4D2022-2806
[December 20, 2023]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Tabitha Blackmon, Judge; L.T. Case No. COINX-22-
027241.
Larry Moskowitz of Larry Moskowitz, P.A., Fort Lauderdale, for
appellant.
Patrick M. Chidnese and Frieda C. Lindroth of Bickford & Chidnese,
LLP, Tampa, for appellee.
LEVINE, J.
The trial court dismissed a claim filed by appellant, as assignee of
benefits under a homeowner’s insurance policy, for breach of contract
against appellee, the insurer, finding that an invoice failed to satisfy
section 627.7152(2)(a), Florida Statutes (2021), because the invoice was
unexecuted. Section 627.7152(2)(a) requires that an assignment
agreement be executed and contain an itemized, per-unit cost estimate of
the services to be performed. We find that, taking the allegations in the
amended complaint as true, as required when considering a motion to
dismiss, the invoice was provided with, and fully incorporated into, the
executed assignment agreement. Thus, for purposes of ruling on the
motion to dismiss, the invoice should have been treated as part of the
executed assignment agreement, and the trial court erred by finding that
the invoice should have been separately executed. Accordingly, we reverse
and remand for further proceedings.
Appellant sued the insurer for breach of contract for failure to pay a
$3,000 claim. The amended complaint alleged that appellant and the
insureds entered into an assignment agreement for “forensic engineering
services with incorporated written, itemized, per unit cost invoice in the
amount of $3,000.” An assignment agreement and an invoice, both dated
December 29, 2021, were attached to the amended complaint. 1 The
assignment agreement stated that “an itemized per unit cost
estimate/invoice has been provided with this contract and is fully
incorporated herein.” The assignment agreement contained a “Good Faith
Itemized Per-Unit Cost Estimate” with a list of services and costs with a
checkmark next to one service: “Engineer Report with Repair Plan =
$3,000+.” The invoice contained a price of $3,000 for an “Engineer Report
from State Licensed Professional Engineer.”
The insurer moved to dismiss, arguing the separate invoice was not
executed and did not satisfy section 627.7152(2)(a), Florida Statutes
(2021). In support, the insurer relied on Kidwell Group, LLC v. United
Property & Casualty Insurance Co., 343 So. 3d 97 (Fla. 4th DCA 2022).
Appellant responded that the signature on the assignment agreement
complied with the statute and that the invoice was contemporaneous with
and part of the assignment agreement.
The trial court dismissed the amended complaint with prejudice,
stating:
The invoice attached to the amended complaint is unexecuted
by the assignor and therefore fails to comply with F.S.
627.7152. This Court is bound by the 4th DCA’s decision in
The Kidwell Group, LLC, d/b/a Air Quality Assessors of
Florida a/a/o Ben Kikovitz v. UNITED PROPERTY & Casualty
Insurance Company, 343 So. 3d 97 (4th DCA 2022), where
the Court held, in part, that an unexecuted invoice is invalid.
Appellant argues the trial court erred in failing to construe the invoice
as part of the assignment agreement where the assignment agreement
stated that “an itemized per unit cost estimate/invoice has been provided
with this contract and is fully incorporated herein.” The insurer responds
that this statement did not incorporate the invoice by reference; rather, it
referred to a different document, that being the “Good Faith Itemized Per-
Unit Cost Estimate.”
1 The assignment agreement is attached to this opinion as Appendix 1, and the
invoice is attached as Appendix 2.
2
An order granting a motion to dismiss is reviewed de novo. Rhiner v.
Koyama, 327 So. 3d 314, 316 (Fla. 4th DCA 2021). Issues of statutory
interpretation are also reviewed de novo. Therlonge v. State, 184 So. 3d
1120, 1121 (Fla. 4th DCA 2015).
“A motion to dismiss is designed to test the legal sufficiency of the
complaint, not to determine factual issues, and the allegations of the
complaint must be taken as true and all reasonable inferences therefrom
construed in favor of the nonmoving party.” The Fla. Bar v. Greene, 926
So. 2d 1195, 1199 (Fla. 2006). When ruling on a motion to dismiss, the
trial court is limited to the four corners of the complaint, including the
exhibits attached to it. Haslett v. Broward Health Imperial Point Med. Ctr.,
197 So. 3d 124, 127 (Fla. 4th DCA 2016).
Pursuant to section 627.7152, Florida Statutes (2021), an assignment
agreement must comply with certain requirements. Pertinent to the issue
on appeal, an assignment agreement must “[b]e in writing and executed
by and between the assignor and the assignee” and “[c]ontain a written,
itemized, per-unit cost estimate of the services to be performed by the
assignee.” § 627.7152(2)(a)(1), (4), Fla. Stat. (2021). “An assignment
agreement that does not comply with this subsection is invalid and
unenforceable.” § 627.7152(2)(d), Fla. Stat. (2021). 2
In the instant case, at this juncture, the trial court erred in failing to
construe the invoice as part of the assignment agreement. The amended
complaint alleged that appellant and the insureds entered into an
assignment agreement for “forensic engineering services with incorporated
written, itemized, per unit cost invoice in the amount of $3,000.”
(emphasis added). Both the assignment agreement and invoice were
attached to the amended complaint, and both were dated December 29,
2021. Additionally, the assignment agreement stated that “an itemized
per unit cost estimate/invoice has been provided with this contract and is
fully incorporated herein.” (emphasis added).
Taking the allegations in the amended complaint and attachments
thereto in a light most favorable to appellant, the invoice was provided
with, and fully incorporated into, the assignment agreement. “It is a
generally accepted rule of contract law that, where a writing expressly
refers to and sufficiently describes another document, that other
document, or so much of it as is referred to, is to be interpreted as part of
2 For insurance policies issued after January 1, 2023, the Florida Legislature has
declared all assignments to be void, invalid, and unenforceable. § 627.7152(13),
Fla. Stat. (2023).
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the writing.” OBS Co. v. Pace Constr. Corp., 558 So. 2d 404, 406 (Fla.
1990). Because the invoice was incorporated into the executed assignment
agreement, the invoice did not need a separate signature in order to
withstand a motion to dismiss. See Cavallaro v. Stratford Homes, Inc., 784
So. 2d 619, 622 (Fla. 5th DCA 2001) (stating that “[i]n order for documents
to be read in conjunction with each other . . . , there must be some
reference to the unsigned writing in the signed writing”) (citation and
internal quotation marks omitted); First Guar. Corp. v. Palmer Bank & Tr.
Co. of Fort Myers, N.A., 405 So. 2d 186, 188 (Fla. 2d DCA 1981) (“[S]everal
writings, only one of which is signed, may be aggregated . . . , provided the
signed writing expressly or implicitly refers to the unsigned document.”).
The trial court’s reliance on Kidwell was misplaced because, in that
case, the invoice was dated five days after the assignment agreement, and
there was no allegation in Kidwell that the invoice was incorporated into
the assignment agreement. 343 So. 3d at 98. Here, in contrast, the invoice
and assignment agreement were dated the same day, and appellant alleged
the assignment agreement incorporated the invoice.
The insurer advances two alternative grounds for affirmance. First, the
insurer argues that the assignment agreement and invoice were generic
and did not describe specific services. The cases the insurer relies on are
distinguishable because those cases involved only a general list for
services that could be performed, without any indication of what services
were estimated to be performed. See Total Care Restoration, LLC v. Citizens
Prop. Ins. Corp., 357 So. 3d 1260 (Fla. 3d DCA 2023); Air Quality Experts
Corp. v. Family Sec. Ins. Co., 351 So. 3d 32 (Fla. 4th DCA 2022). In
contrast, here the service was sufficiently detailed because it listed a single
service of an engineer report with an estimated cost of $3,000. See MVP
Plumbing, Inc. v. Citizens Prop. Ins. Corp., 359 So. 3d 885, 885 (Fla. 3d DCA
2023) (finding a service sufficiently detailed where “the assignment
expressly contemplated appellant would perform a single service, a pipe
inspection, for the estimated cost of $750”).
Second, the insurer argues that the preparation of a report is not a
covered loss. However, this not an issue that can be resolved at the motion
to dismiss stage of the proceedings. Whether the engineering report falls
within the scope of the policy depends on whether it was used for the repair
or replacement of the damaged property. See People’s Tr. Ins. Co. v.
Kidwell Grp., LLC, 363 So. 3d 1108 (Fla. 4th DCA 2023) (resolving at trial
the issue of whether an engineering report for $3,500 was a covered loss
under the policy).
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In summary, because at this juncture the invoice should have been
considered as part of the executed assignment agreement, the invoice did
not require a separate execution to satisfy section 627.7152(2)(a). As such,
we reverse the dismissal and remand for further proceedings.
Reversed and remanded for further proceedings.
MAY and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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APPENDIX 1
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APPENDIX 2
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