Preview
Filing # 95401866 E-Filed 09/09/2019 04:23:23 PM
IN THE CIRCUIT COURT OF THE 9™
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO: 2019-CA-002696-CI
CARABEO CARPET CARE, INC. a/a/o
Jennie Escalona & Jesus Machado,
Plaintiff,
VS.
AMERICAN TRADITIONS INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE
TO STATE A CLAIM AND FOR PREMATURE BAD FAITH ALLEGATIONS, AND
MOTION TO STRIKE PARAGRAPHS 14 AND 19 OF P. TIFF’S COMPLAINT
AND PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES
Defendant, American Traditions Insurance Company (“American Traditions”), by and
through undersigned counsel, hereby files its Defendant’s Motion to Dismiss Plaintiffs Complaint
for Failure to State a Claim and for Premature Bad Faith Allegations, and Motion to Strike
Paragraphs 14 and 19 of Plaintiff's Complaint and Plaintiff's Claim for Attorney’s Fees, and in
support of same, states as follows:
INTRODUCTION
Plaintiff filed suit alleging breach of a contract of homeowner’s insurance, seeking
damages therefor. However, Plaintiff failed to state sufficient facts upon which relief may be
granted, failing to state the claimed damages in any manner that might allow Defendant to prepare
its defenses. Further, Plaintiff has improperly incorporated allegation that implicate a premature
claim for bad faith within Count I, and has even overtly alleged a count for bad faith Count II,
despite having not established a breach of the policy. Count II should be dismissed because it is
not ripe for consideration. Count II specifically alleges Breach of Florida Statute § 624.155, but
Florida case law has made it patently clear that a cause of action for bad faith is premature unless
and until there is a determination of liability and the extent of damages, i.e., that the carrier
breached the subject policy. Finally, the Plaintiff has explicitly alleged that it is claiming fees under
Florida Statute § 627.428, which is improper.
FACTUAL BACKGROUND
1 This action involves a first-party property homeowner’s insurance loss. See
Complaint, on file with the Court.
2 Plaintiff filed this lawsuit as a purported assignee pursuant to an assignment of
benefits contract attached to the Complaint. Jd.
3 Plaintiff seeks damages for their services performed, or to be performed, relating
to the alleged loss. /d. Plaintiff also claims it is entitled to recover attorney’s fees pursuant to
Florida Statute § 627.428. Id.
MOTION TO DISMISS OR FOR MORE DEFINITE STATEMENT
1 Defendant now moves to the Complaint because it fails to allege sufficient ultimate
facts to show that the Plaintiff is entitled to relief, or in the alternative, moves for a more definite
statement.
2. The Complaint fails to provide basic details regarding the claim, which prevents
American Traditions from asserting any affirmative defenses.
3 The Complaint fails to provide any information about alleged damages, stating
vaguely that the Plaintiff was purportedly retained to perform “remediation services.” See
Paragraph 10 of the Complaint, on file with the Court.
4 The Complaint does not provide any indication of what those services are alleged
to be in the body of the Complaint, nor in the attached exhibit. /d.
5 In Florida, “[i]n order to state a cause of action, a complaint must allege sufficient
ultimate facts to show that the pleader is entitled to relief.” MEBA Med. & Benefits Plan v. Lago,
867 So. 2d 1184, 1186 (Fla. 4" DCA 2004); see also Fla. R. Civ. P. 1.110(b)(2).
6 These allegations are necessary in order for Defendant to properly defend against
the action and to accurately frame the pleadings.
7 Specifically, the exhibit attached to the Complaint indicates that the Insureds
assigned “any and all insurance rights, benefits, proceeds, and any causes of action . . . up to the
limit for services rendered or to be rendered by [Plaintiff,]” meaning that Defendant cannot
formulate its affirmative defenses without having any idea of what service(s) the Plaintiff is
purporting to claim under the policy and in relation to the claimed loss. See Complaint, on file with
the Court.
8 As a result, the Complaint fails to allege sufficient ultimate facts showing the
pleader is entitled to relief and fails to state the claim with sufficient particularity for a defense to
be prepared.
9 Accordingly, Defendant respectfully requests that this Honorable Court dismiss the
Plaintiff's Complaint for failure to state a cause of action.
10. In the alternative, and to the extent this Honorable Court is not inclined to dismiss
the Complaint for failure to state a cause of action, Defendant respectfully moves for a more
definite statement.
11. Florida Rule of Civil Procedure 1.140(e) allows a party to move for a more definite
statement where “a pleading is so vague or ambiguous that a party cannot reasonably be required
to frame a responsive pleading.”
12. In sum, the Plaintiff's failure to set for any facts whatsoever regarding the alleged
loss results in a failure to allege sufficient ultimate facts entitling Plaintiff to relief and precludes
Defendant from determining its defenses and fashioning an appropriate response.
13. Therefore, the Plaintiff's Complaint should be dismissed, or the Plaintiff should be
required to provide a more definite statement.
MOTION TO DISMISS FOR PREMATURE BAD FAITH
14. American Traditions also moves this Court to dismiss the entirety of the Plaintiff's
Complaint, or in the alternative, to strike Count II, and Paragraph 16 from the Complaint, because
bad faith is currently not ripe for consideration.
15. In Paragraph 16 and Count II, the Plaintiff is alleging a cause of action against
American Traditions for bad faith.
16. Florida law is clear that in a bad faith case, “liability is based on the carrier’s
conduct in processing and paying a given claim.” Fidelity Cas. Ins. Co. v. Taylor, 525 So. 2d 908,
909 (Fla. 3d DCA 1987).
17. In Paragraph 16, the Plaintiffs allegations are directly about the manner and
method in which the claim was adjusted, which is only appropriate in a bad faith claim.
18. Regarding Count II, Florida Statute §624.155 does allow a party to bring a civil
action against an insurer for failing to act in good faith under certain circumstances.! See Fla. Stat.
§624.155.
' American Traditions contends that those circumstances are not present here, and that Plaintiff would never
be able to maintain an action for bad faith.
19. However, even though the statute does allow a party to bring an action against an
insurance company, the circumstances under which the action may be brought are very specific.
The Florida Supreme Court has clearly stated that “bringing a cause of action in court for violation
of section 624.155(1)(b)(1) is premature until there is a determination of liability and extent of
damages owedJ, i.e., breach,] on the first-party insurance contract.” See Vest v. Travelers Ins. Co.,
753 So. 2d 1270, 1276 (Fla. 2000) (emphasis added); See also Liberty Mutual Ins. Co. v. Farm,
Inc., 754 So. 2d 865, 866 (Fla. 3d DCA 2000).
20. In short, “allowing the bad faith action to proceed before termination of the
underlying contractual litigation constitute[s] a departure from the essential requirements of law.”
See Michigan Millers Mutual Ins. Co. v. Bourke, 581 So, 2d 1368, 1369 (Fla. 2d DCA 1991).
21. Florida law further mandates dismissal with prejudice when the allegations
supporting one of a plaintiffs claims are the same allegations that would support a statutory bad
faith claim. OBE v. Dome Condo. Ass’n, 577 F. Supp. 2d 1256, 1260-61 (S.D. Fla. 2009) (applying
Florida law); see also Dennis v. Northwestern Mut. Life Ins. Co., 2006 U.S. Dist. LEXIS 19578,
*10 (MLD. Fla. 2006) (citing OneBeacon Ins. Co. y. Delta Fire Sprinklers, Inc., 898 So. 2d 113,
115 (Fla. Sth DCA 2005).
22. The case law cited above is directly on point in the present case. Paragraph 16
makes allegations regarding the manner and method of adjustment, and Count II of the Plaintiff's
Complaint specifically states that it is being brought based upon an alleged breach of Florida
Statute § 624.155.
23. However, to date, there has been no determination that American Traditions has
breached the contract. As such, the premature bad faith allegations demand that the Complaint be
dismissed with prejudice.
24. To the extent that the Court is not inclined to dismiss the Complaint with prejudice,
pursuant to Florida Rule of Civil Procedure 1.140(f), Defendant alternatively requests that the
Court strike Paragraph 16 from the Complaint, and dismiss Count II.
MOTION TO STRIKE PARAGRAPHS 14 AND 19 OF PLAINTIFF’S COMPLAINT
AND PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES?
25. Additionally, the Plaintiff's claim for fees in Paragraphs 14 and 19, and the
Wherefore Clause of the Complaint is improper, and should be stricken.
26. Based on recent legislation aimed at curbing the rampant litigation due to
assignment of benefits (“AOB”), Plaintiffs claim for attorney’s fees pursuant to Florida Statute §
627.428 is improper, immaterial, and must be stricken by this Court.
27. Recently, The Florida Legislature enacted HB 7065 (the “AOB Reform Bill”),
codified as Fla. Stat. § 627.7152. A primary provision of the law removes an assignees ability to
recover attorney’s fees pursuant to Fla. Stat. § 627.428, and creates a new structure by which an
assignee who files suit against an insurer may recover attorney fees. The law went into effect on
July 1, 2019. See CS/CS/HB 7065, attached as Exhibit A. As discussed below, however, the
effective date of the law regarding attorney fees changed to May 24, 2019.>
28. Subsection 10 of Florida Statute § 627.7152 removed the one-way attorney fee
provision:
(10) Notwithstanding any other provision of law, in a suit related to an assignment
agreement for post-loss claims arising under a residential or commercial property
insurance policy, attorney fees and costs may be recovered by an assignee only
under s. 57.105 and this subsection.
? Defendant maintains that Count II should be dismissed in its entirety, See Motion to Dismiss for Premature
Bad Faith supra, but includes Paragraph 19 in this Motion to Strike in an abundance of caution in the event
that the Court is not inclined to dismiss Count II.
3 Although the Plaintiffs claim for fees under Florida Statute § 627.428 is completely barred by the
effective date of Florida Statute § 627.7152, the effective date of the fee portion (Section 10) of Florida
Statute § 627.7152 is especially important to demonstrate the completely baseless nature of Plaintiffs claim
for fees under Florida Statute § 627.428.
Id. (emphasis added).
29. Subsection 10 further allows for the recovery of attorney fees from both sides
dependent upon pre-suit settlement offers, similar to the proposal for settlement statute.
30. In response to the new law changing the ability to recover fees under 627.428, there
was concern that there would be a rush of AOB vendors filing suit before the law went into effect
on July 1, 2019, in order to be entitled to attorney fees under the old statute.
31. In response to the uproar, Governor Ron DeSantis signed into law the Court’s
Jurisdictional Bill (HB 337) at 9:41 a.m. on May 24, 2019, which included Section 23 that stated:
Section 23. Notwithstanding subsection (13) of section 627.7152, as created by HB
7065, 2019 Regular Session, subsection (10) of that section is effective upon
becoming a law.
See Letter from Governor Ron DeSantis, attached as Exhibit B, and Section 23 of CS/CS/HB 337,
attached as Exhibit C (emphasis added).
32. Further, the Final Bill Analysis from the House of Representatives Staff specifically
stated that HB 337 “makes the attorney fees provision of CS/CS/HB 7065, providing the exclusive
means by which a party to assignment of benefits litigation resulting in a judgment may recover
attorney fees, effective upon becoming a law instead of July 1, 2019, the effective date of that
bill.” See, Final Bill Analysis, attached as Exhibit D (emphasis added).
33. Plaintiff filed this action on August 21, 2019, well after Subsection 10 of Florida
Statute § 627.7152 took effect and barred the recovery of attorney’s fees pursuant to Florida Statute
§ 627.428 for lawsuits arising out of an assignment of benefits, and even well after the date that
the entirety of Florida Statute 627.7152 took effect. Thus, Plaintiff cannot seek entitlement of
attorney’s fees pursuant to Florida Statute § 627.428.
34. Despite this, the Plaintiff pleads in Paragraphs 14 and 19 that the Plaintiff is seeking
the recovery of attorney’s fees and costs pursuant Florida Statute § 627.428. This is legally
improper pursuant Subsection 10 of Florida Statute § 627.7152, which became effective before
Plaintiff's suit was filed. Therefore, the Plaintiff is not entitled to attorney’s fees pursuant to
Florida Statute § 627.428, because Plaintiff filed suit after May 24, 2019. Subsection 10 of Florida
Statute § 627.7152 and Florida Statute §57.105 are the sole avenues for recovery of attorney’s fees
ind costs for the Plaintiff since this suit was filed on August 21, 2019.
35. Florida Rule of Civil Procedure 1.140(f) states:
(f) Motion to Strike. A Party may move to strike or the court may strike redundant,
immaterial, impertinent, or scandalous matter from any pleading at any time.
Id.
36. For the reasons stated herein, Plaintiff is not entitled to the recovery of attorney fees
and costs pursuant to Florida Statute § 627.428 and therefore, said paragraph and allegations are
immaterial, impertinent, and scandalous and must be stricken.
CONCLUSION
Because the Plaintiff fails to state a claim upon which relief may be granted, the Complaint
should be dismissed or the Plaintiff should be required to provide a more definite statement.
Additionally, the Plaintiff's Complaint contains premature bad faith allegations, which provide
another basis for dismissal. In the alternative the bad faith allegations should be stricken and Count
II dismissed. Finally, the Plaintiff's claim for attorney’s fees under Florida Statute § 627.428 is
improper and should be stricken.
WHEREFORE, the Defendant, American Traditions Insurance Company, respectfully
requests the Court enter an Order dismissing the Complaint, or requiring the Plaintiff to provide a
more definite statement while striking Paragraph 16 and Count II, and striking Plaintiffs claim for
attorney’s fees under Florida Statute § 627.428, as well as any further relief the Court deems just
and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail
via the Florida Courts E-filing Portal system on this 9" day of September, 2019, upon: Sonya P.
Randolph, Esq., Font & Nelson, PLLC, Attorneys for Plaintiff, 200 S. Andrews Ave., Ste. 501,
Fort Lauderdale, FL 33301, pleadings@fontnelson.com, srandolph@fontnelson.com.
BRESSLER, AMERY & Ross, P.C.
200 East Las Olas Boulevard
Suite 1500
Fort Lauderdale, Florida 33301
T: 954.499.7979
F: 954.499.7969
E-Mail: Miainsurancei”
miainsurance@bressler.com
oressier COM
epstein@bressler.com
By: _/s/_ Samantha Epstein
Hope C. Zelinger
Florida Bar No.: 92173
Samantha S. Epstein
Florida Bar No.: 68693
EXHIBIT “A”
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
An act relating to insurance assignment agreements;
creating s. 627.7152, F.S.; providing definitions;
providing requirements and limitations for property
insurance assignment agreements; providing a burden of
proof; providing that an assignment agreement does not
affect managed repair arrangements under a property
insurance policy; providing that an assignment
agreement does not confer or create authority to
10 adjust, negotiate, or settle a claim without
11 authorization under part VI of chapter 626; providing
12 that an acceptance by an assignee of an assignment
13 agreement is a waiver by the assignee and its
14 subcontractors of certain claims against an insured;
1s specifying an insured's payment obligations under an
16 assignment agreement; requiring notice of intent to
17 initiate litigation; specifying requirements for such
18 notice; requiring a written response to the notice of
19 intent to initiate litigation; specifying requirements
20 for such response; providing for an award of
21 reasonable attorney fees for certain claims arising
22 under an assignment agreement; providing for an award
23 of reasonable attorney fees following a voluntary
24 dismissal under certain circumstances; requiring the
25 court to stay proceedings under certain circumstances;
Page 1 of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
26 directing the Office of Insurance Regulation to
27 require insurers to report specified data; requiring
28 the Financial Services Commission to adopt rules;
29 providing applicability; creating s. 627.7153, F.S.?7
30 defining the term "assignment agreement"; authorizing
31 insurers to make available property insurance policies
32 restricting the assignment of post-loss benefits under
33 certain conditions; requiring annual notice of
34 coverage options; requiring a written or electronic
35 waiver under certain circumstances; requiring the
36 office to approve a waiver form; providing
37 applicability; amending s. 627.422, F.S.; providing
38 that residential or commercial property insurance
39 policies may not prohibit the assignment of post-lost
40 benefits; providing an exception; prohibiting Citizens
41 Property Insurance Corporation from implementing rate
42 changes for certain policies; providing an exception;
43 requiring certain rate filings to include specified
44 information; requiring the corporation to inform
45 policyholders of certain information; providing
46 severability; providing an effective date.
47
48 Be It Enacted by the Legislature of the State of Florida:
49
50 Section 1. Section 627.7152, Florida Statutes, is created
Page 2 of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
S1 to read:
52 627.7152 Assignment agreements.—
53 (1) As_ used in this section, the term:
54 (a) "Assignee" means a person who is assigned post-loss
55 benefits through an assignment agreement.
56 (b) "Assignment agreement" means any instrument by which
57 post-loss benefits under a_ residential propert insurance polic
58 or commercial propert insurance policy, as that term is defined
59 ins. 627.0625(1), are assigned or transferred, or acquired in
60 an manner, in_whole or in part, to or from _a person providing
61 services to protect, repair, restore, or replace property or to
62 mitigate against further damage to the propert
63 (c) "Assignor" means a person who assigns post-loss
64 benefits under a residential property insurance policy or
65 commercial propert insurance polic to another person through
66 an assignment agreement.
67 (da) "Disputed amount" means the difference between the
68 assignee's presuit settlement demand and the insurer's presuit
69 settlement offer.
70 (e) "Judgment obtained" means damages recovered, if any,
71 but does not include an amount awarded for attorne fees,
72 costs, or interest.
73 (£) "Presuit settlement demand" means the demand made b
74 the assignee in the written notice of intent to initiate
75 litigation as required by paragraph (9) (a).
Page 3 of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
76 (g) "Presuit settlement offer" means the offer made by the
77 insurer in its written response to the notice of intent to
78 initiate litigation as required by paragraph (9) (b).
719 (2) (a) An assignment agreement must:
80 1 Be in writing and executed b and_ between the assignor
81 and the assignee.
82 2 Contain a provision that allows the assignor to rescind
83 the assignment agreement without a penalt or fee b submitting
84 a written notice of rescission signed by the assignor to the
85 assignee within 14 days after the execution of the agreement, at
86 least 30 days after the date work on the property is scheduled
87 to commence if the assignee has not substantially performed, or
88 at_least 30 days after the execution of the agreement if the
89 agreement does not contain a commencement date and the assignee
90 has not begun substantial work on the propert :
91 3 Contain a provision requiring the assignee to provide a
92 cop of the executed assignment agreement to the insurer within
93 3 business days after the date on which the assignment agreement
94 is executed or the date on which work begins, whichever is
95 earlier. Delivery of the copy of the assignment agreement to the
96 insurer ma be made:
97 a By personal service, overnight delivery, or electronic
98 transmission, with evidence of deliver in the form of a receipt
99 or other paper or electronic acknowledgement by the insurer; or
100 b To the location designated for receipt of such
Page
4 of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
101 agreements as specified in the polic :
102 4 Contain a written, itemized, per-unit cost estimate of
103 the services to be performed by the assignee.
104 5 Relate only to work to be performed by the assignee for
105 services to protect, repair, restore, or replace a dwelling or
106 structure or to mitigate against further damage to such
107 property.
108 6 Contain the following notice in 18-point uppercase and
109 boldfaced type:
110
111 YOU_ARE AGREEING TO GIVE UP CERTAIN RIGHTS YOU HAVE UNDER YOUR
112 INSURANCE POLICY TO A THIRD PARTY, WHICH MAY RESULT IN
113 LITIGATION AGAINST YOUR INSURER. PLEASE READ AND UNDERSTAND THIS
114 DOCUMENT BEFORE SIGNING IT. YOU HAVE THE RIGHT TO CANCEL THIS
115 AGREEMENT WITHOUT PENALTY WITHIN 14 DAYS AFTER THE DATE THIS
116 AGREEMENT IS EXECUTED, AT LEAST 30 DAYS AFTER THE DATE WORK ON
117 THE PROPERTY IS SCHEDULED TO COMMENCE IF THE ASSIGNEE HAS NOT
118 SUBSTANTIALLY PERFORMED, OR_AT LEAST 30 DAYS AFTER THE EXECUTION
119 OF THE AGREEMENT IF THE AGREEMENT DOES NOT CONTAIN A
120 COMMENCEMENT DATE AND THE ASSIGNEE HAS NOT BEGUN SUBSTANTIAL
121 WORK ON THE PROPERTY. HOWEVER, YOU ARE OBLIGATED FOR PAYMENT OF
122 ANY CONTRACTED WORK PERFORMED BEFORE THE AGREEMENT IS RESCINDED.
123 THIS AGREEMENT DOES NOT CHANGE YOUR OBLIGATION TO PERFORM THE
124 DUTIES REQUIRED UNDER YOUR PROPERTY INSURANCE POLICY.
125
Page 5of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
7
126 Contain a provision requiring the assignee to indemnif
127 and hold harmless the assignor from all liabilities, damages,
128 losses, and_costs, including, but not limited to, attorne fees,
129 should the policy subject to the assignment agreement prohibit,
130 in_whole or in part, the assignment of benefits.
131 (b) An_ assignment agreement may not contain:
132 A penalt or fee for rescission under subparagraph
133 (a) 2.7
134 A_ check or mortgage processing fee;
135 A penalt or fee for cancellation of the agreement; or
136 An_ administrative fee.
137 (c) If an_assignor acts under an urgent or emergenc
138 circumstance to protect propert from damage and executes an
139 assignment agreement to protect, repair, restore, or replace
140 propert or to mitigate against further damage to the property,
141 an_ assignee may not receive an assignment of post-loss benefits
142 under a _ residential propert insurance polic in_excess of the
143 greater of $3,000 or 1 percent of the Coverage A limit under
144 such polic For purposes of this paragraph, the term "urgent or
145 emergency circumstance" means a situation in which a loss to
146 propert t if not addressed immediatel Lt will result in
147 additional damage until measures are completed to prevent such
148 damage.
149 (d) An_ assignment agreement that does not comply with this
150 subsection is invalid and unenforceable.
Page 6of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
151 (3) In_a claim arising under an assignment agreement, an
152 assignee has the burden to demonstrate that the insurer is not
153 prejudiced by the assignee's failure to:
154 (a) Maintain records of all services provided under the
155 assignment agreement.
156 (b) Cooperate with the insurer in the claim investigation.
157 (c) Provide the insurer with requested records and
158 documents related to the services provided, and permit the
159 insurer to make copies of such records and documents.
160 (d) Deliver a_cop of the executed assignment agreement to
161 the insurer within 3 business days after executing the
162 assignment agreement or work has begun, whichever is earlier.
163 (4) An assignee:
164 (a) Must provide the assignor with accurate and up-to-date
165 revised estimates of the scope of work to be performed as
166 supplemental or additional repairs are required.
167 (b) Must perform the work in accordance with accepted
168 industry standards.
169 (c) Ma not seek payment from the assignor exceeding the
170 applicable deductible under the policy unless the assignor has
171 chosen to have additional work performed at the assignor's own
172 expense.
173 (da) Must, as_a_condition precedent to filing suit under
174 the policy, and, if required by the insurer, submit to
175 examinations under oath and recorded statements conducted by the
Page 7of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
176 insurer or the insurer's representative that are reasonabl
177 necessary, based on the scope of the work and the complexity of
178 the claim, which examinations and recorded statements must be
179 limited to matters related to the services provided, the cost of
180 the services, and the assignment agreement.
181 (e) Must, as_a condition precedent to filing suit under
182 the policy, and, if required by the insurer, participate in
183 appraisal or other alternative dispute resolution methods in
184 accordance with the terms of the policy.
185 (5) An_ assignment agreement and this section do not modif
186 or eliminate any term, condition, or defense relating to any
187 managed repair arrangement provided in the polic :
188 (6) An assignment agreement does not transfer or create
189 any authority to adjust, negotiate, or settle any portion of a
190 claim to a person or entit not authorized to adjust, negotiate,
191 or settle a claim on behalf of an assignor or a claimant under
192 part VI of chapter 626.
193 (7) (a) Notwithstanding any other provision of law, and
194 except as provided in paragraph (b), acceptance b an_assignee
195 of an assignment agreement is a waiver by the assignee and its
196 subcontractors of claims against a named insured for payments
197 arising from the assignment agreement. The assignee and its
198 subcontractors ma not collect or attempt to collect mone from
199 an insured, maintain any action at law against an insured, claim
200 a_lien on the real propert of an insured, or report an insured
Page 8 of 16
CODING: Words sis'ckes are deletions; words underlined are additions.
hb7065-04-er
FLOR | DA HOUSE OF REPRESENTA T | Ves
ENROLLED
CS/CS/HB 7065 , Engrossed 1 2019 Legislature
201 to_a_credit agenc for payments arising from the assignment
202 agreement. Such waiver rema
Preview
Filing # 95401866 E-Filed 09/09/2019 04:23:23 PM IN THE CIRCUIT COURT OF THE 9™ JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2019-CA-002696-CI CARABEO CARPET CARE, INC. a/a/o Jennie Escalona & Jesus Machado, Plaintiff, VS. AMERICAN TRADITIONS INSURANCE COMPANY, Defendant. / DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO STATE A CLAIM AND FOR PREMATURE BAD FAITH ALLEGATIONS, AND MOTION TO STRIKE PARAGRAPHS 14 AND 19 OF P. TIFF’S COMPLAINT AND PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES Defendant, American Traditions Insurance Company (“American Traditions”), by and through undersigned counsel, hereby files its Defendant’s Motion to Dismiss Plaintiffs Complaint for Failure to State a Claim and for Premature Bad Faith Allegations, and Motion to Strike Paragraphs 14 and 19 of Plaintiff's Complaint and Plaintiff's Claim for Attorney’s Fees, and in support of same, states as follows: INTRODUCTION Plaintiff filed suit alleging breach of a contract of homeowner’s insurance, seeking damages therefor. However, Plaintiff failed to state sufficient facts upon which relief may be granted, failing to state the claimed damages in any manner that might allow Defendant to prepare its defenses. Further, Plaintiff has improperly incorporated allegation that implicate a premature claim for bad faith within Count I, and has even overtly alleged a count for bad faith Count II, despite having not established a breach of the policy. Count II should be dismissed because it is not ripe for consideration. Count II specifically alleges Breach of Florida Statute § 624.155, but Florida case law has made it patently clear that a cause of action for bad faith is premature unless and until there is a determination of liability and the extent of damages, i.e., that the carrier breached the subject policy. Finally, the Plaintiff has explicitly alleged that it is claiming fees under Florida Statute § 627.428, which is improper. FACTUAL BACKGROUND 1 This action involves a first-party property homeowner’s insurance loss. See Complaint, on file with the Court. 2 Plaintiff filed this lawsuit as a purported assignee pursuant to an assignment of benefits contract attached to the Complaint. Jd. 3 Plaintiff seeks damages for their services performed, or to be performed, relating to the alleged loss. /d. Plaintiff also claims it is entitled to recover attorney’s fees pursuant to Florida Statute § 627.428. Id. MOTION TO DISMISS OR FOR MORE DEFINITE STATEMENT 1 Defendant now moves to the Complaint because it fails to allege sufficient ultimate facts to show that the Plaintiff is entitled to relief, or in the alternative, moves for a more definite statement. 2. The Complaint fails to provide basic details regarding the claim, which prevents American Traditions from asserting any affirmative defenses. 3 The Complaint fails to provide any information about alleged damages, stating vaguely that the Plaintiff was purportedly retained to perform “remediation services.” See Paragraph 10 of the Complaint, on file with the Court. 4 The Complaint does not provide any indication of what those services are alleged to be in the body of the Complaint, nor in the attached exhibit. /d. 5 In Florida, “[i]n order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” MEBA Med. & Benefits Plan v. Lago, 867 So. 2d 1184, 1186 (Fla. 4" DCA 2004); see also Fla. R. Civ. P. 1.110(b)(2). 6 These allegations are necessary in order for Defendant to properly defend against the action and to accurately frame the pleadings. 7 Specifically, the exhibit attached to the Complaint indicates that the Insureds assigned “any and all insurance rights, benefits, proceeds, and any causes of action . . . up to the limit for services rendered or to be rendered by [Plaintiff,]” meaning that Defendant cannot formulate its affirmative defenses without having any idea of what service(s) the Plaintiff is purporting to claim under the policy and in relation to the claimed loss. See Complaint, on file with the Court. 8 As a result, the Complaint fails to allege sufficient ultimate facts showing the pleader is entitled to relief and fails to state the claim with sufficient particularity for a defense to be prepared. 9 Accordingly, Defendant respectfully requests that this Honorable Court dismiss the Plaintiff's Complaint for failure to state a cause of action. 10. In the alternative, and to the extent this Honorable Court is not inclined to dismiss the Complaint for failure to state a cause of action, Defendant respectfully moves for a more definite statement. 11. Florida Rule of Civil Procedure 1.140(e) allows a party to move for a more definite statement where “a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” 12. In sum, the Plaintiff's failure to set for any facts whatsoever regarding the alleged loss results in a failure to allege sufficient ultimate facts entitling Plaintiff to relief and precludes Defendant from determining its defenses and fashioning an appropriate response. 13. Therefore, the Plaintiff's Complaint should be dismissed, or the Plaintiff should be required to provide a more definite statement. MOTION TO DISMISS FOR PREMATURE BAD FAITH 14. American Traditions also moves this Court to dismiss the entirety of the Plaintiff's Complaint, or in the alternative, to strike Count II, and Paragraph 16 from the Complaint, because bad faith is currently not ripe for consideration. 15. In Paragraph 16 and Count II, the Plaintiff is alleging a cause of action against American Traditions for bad faith. 16. Florida law is clear that in a bad faith case, “liability is based on the carrier’s conduct in processing and paying a given claim.” Fidelity Cas. Ins. Co. v. Taylor, 525 So. 2d 908, 909 (Fla. 3d DCA 1987). 17. In Paragraph 16, the Plaintiffs allegations are directly about the manner and method in which the claim was adjusted, which is only appropriate in a bad faith claim. 18. Regarding Count II, Florida Statute §624.155 does allow a party to bring a civil action against an insurer for failing to act in good faith under certain circumstances.! See Fla. Stat. §624.155. ' American Traditions contends that those circumstances are not present here, and that Plaintiff would never be able to maintain an action for bad faith. 19. However, even though the statute does allow a party to bring an action against an insurance company, the circumstances under which the action may be brought are very specific. The Florida Supreme Court has clearly stated that “bringing a cause of action in court for violation of section 624.155(1)(b)(1) is premature until there is a determination of liability and extent of damages owedJ, i.e., breach,] on the first-party insurance contract.” See Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1276 (Fla. 2000) (emphasis added); See also Liberty Mutual Ins. Co. v. Farm, Inc., 754 So. 2d 865, 866 (Fla. 3d DCA 2000). 20. In short, “allowing the bad faith action to proceed before termination of the underlying contractual litigation constitute[s] a departure from the essential requirements of law.” See Michigan Millers Mutual Ins. Co. v. Bourke, 581 So, 2d 1368, 1369 (Fla. 2d DCA 1991). 21. Florida law further mandates dismissal with prejudice when the allegations supporting one of a plaintiffs claims are the same allegations that would support a statutory bad faith claim. OBE v. Dome Condo. Ass’n, 577 F. Supp. 2d 1256, 1260-61 (S.D. Fla. 2009) (applying Florida law); see also Dennis v. Northwestern Mut. Life Ins. Co., 2006 U.S. Dist. LEXIS 19578, *10 (MLD. Fla. 2006) (citing OneBeacon Ins. Co. y. Delta Fire Sprinklers, Inc., 898 So. 2d 113, 115 (Fla. Sth DCA 2005). 22. The case law cited above is directly on point in the present case. Paragraph 16 makes allegations regarding the manner and method of adjustment, and Count II of the Plaintiff's Complaint specifically states that it is being brought based upon an alleged breach of Florida Statute § 624.155. 23. However, to date, there has been no determination that American Traditions has breached the contract. As such, the premature bad faith allegations demand that the Complaint be dismissed with prejudice. 24. To the extent that the Court is not inclined to dismiss the Complaint with prejudice, pursuant to Florida Rule of Civil Procedure 1.140(f), Defendant alternatively requests that the Court strike Paragraph 16 from the Complaint, and dismiss Count II. MOTION TO STRIKE PARAGRAPHS 14 AND 19 OF PLAINTIFF’S COMPLAINT AND PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES? 25. Additionally, the Plaintiff's claim for fees in Paragraphs 14 and 19, and the Wherefore Clause of the Complaint is improper, and should be stricken. 26. Based on recent legislation aimed at curbing the rampant litigation due to assignment of benefits (“AOB”), Plaintiffs claim for attorney’s fees pursuant to Florida Statute § 627.428 is improper, immaterial, and must be stricken by this Court. 27. Recently, The Florida Legislature enacted HB 7065 (the “AOB Reform Bill”), codified as Fla. Stat. § 627.7152. A primary provision of the law removes an assignees ability to recover attorney’s fees pursuant to Fla. Stat. § 627.428, and creates a new structure by which an assignee who files suit against an insurer may recover attorney fees. The law went into effect on July 1, 2019. See CS/CS/HB 7065, attached as Exhibit A. As discussed below, however, the effective date of the law regarding attorney fees changed to May 24, 2019.> 28. Subsection 10 of Florida Statute § 627.7152 removed the one-way attorney fee provision: (10) Notwithstanding any other provision of law, in a suit related to an assignment agreement for post-loss claims arising under a residential or commercial property insurance policy, attorney fees and costs may be recovered by an assignee only under s. 57.105 and this subsection. ? Defendant maintains that Count II should be dismissed in its entirety, See Motion to Dismiss for Premature Bad Faith supra, but includes Paragraph 19 in this Motion to Strike in an abundance of caution in the event that the Court is not inclined to dismiss Count II. 3 Although the Plaintiffs claim for fees under Florida Statute § 627.428 is completely barred by the effective date of Florida Statute § 627.7152, the effective date of the fee portion (Section 10) of Florida Statute § 627.7152 is especially important to demonstrate the completely baseless nature of Plaintiffs claim for fees under Florida Statute § 627.428. Id. (emphasis added). 29. Subsection 10 further allows for the recovery of attorney fees from both sides dependent upon pre-suit settlement offers, similar to the proposal for settlement statute. 30. In response to the new law changing the ability to recover fees under 627.428, there was concern that there would be a rush of AOB vendors filing suit before the law went into effect on July 1, 2019, in order to be entitled to attorney fees under the old statute. 31. In response to the uproar, Governor Ron DeSantis signed into law the Court’s Jurisdictional Bill (HB 337) at 9:41 a.m. on May 24, 2019, which included Section 23 that stated: Section 23. Notwithstanding subsection (13) of section 627.7152, as created by HB 7065, 2019 Regular Session, subsection (10) of that section is effective upon becoming a law. See Letter from Governor Ron DeSantis, attached as Exhibit B, and Section 23 of CS/CS/HB 337, attached as Exhibit C (emphasis added). 32. Further, the Final Bill Analysis from the House of Representatives Staff specifically stated that HB 337 “makes the attorney fees provision of CS/CS/HB 7065, providing the exclusive means by which a party to assignment of benefits litigation resulting in a judgment may recover attorney fees, effective upon becoming a law instead of July 1, 2019, the effective date of that bill.” See, Final Bill Analysis, attached as Exhibit D (emphasis added). 33. Plaintiff filed this action on August 21, 2019, well after Subsection 10 of Florida Statute § 627.7152 took effect and barred the recovery of attorney’s fees pursuant to Florida Statute § 627.428 for lawsuits arising out of an assignment of benefits, and even well after the date that the entirety of Florida Statute 627.7152 took effect. Thus, Plaintiff cannot seek entitlement of attorney’s fees pursuant to Florida Statute § 627.428. 34. Despite this, the Plaintiff pleads in Paragraphs 14 and 19 that the Plaintiff is seeking the recovery of attorney’s fees and costs pursuant Florida Statute § 627.428. This is legally improper pursuant Subsection 10 of Florida Statute § 627.7152, which became effective before Plaintiff's suit was filed. Therefore, the Plaintiff is not entitled to attorney’s fees pursuant to Florida Statute § 627.428, because Plaintiff filed suit after May 24, 2019. Subsection 10 of Florida Statute § 627.7152 and Florida Statute §57.105 are the sole avenues for recovery of attorney’s fees ind costs for the Plaintiff since this suit was filed on August 21, 2019. 35. Florida Rule of Civil Procedure 1.140(f) states: (f) Motion to Strike. A Party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time. Id. 36. For the reasons stated herein, Plaintiff is not entitled to the recovery of attorney fees and costs pursuant to Florida Statute § 627.428 and therefore, said paragraph and allegations are immaterial, impertinent, and scandalous and must be stricken. CONCLUSION Because the Plaintiff fails to state a claim upon which relief may be granted, the Complaint should be dismissed or the Plaintiff should be required to provide a more definite statement. Additionally, the Plaintiff's Complaint contains premature bad faith allegations, which provide another basis for dismissal. In the alternative the bad faith allegations should be stricken and Count II dismissed. Finally, the Plaintiff's claim for attorney’s fees under Florida Statute § 627.428 is improper and should be stricken. WHEREFORE, the Defendant, American Traditions Insurance Company, respectfully requests the Court enter an Order dismissing the Complaint, or requiring the Plaintiff to provide a more definite statement while striking Paragraph 16 and Count II, and striking Plaintiffs claim for attorney’s fees under Florida Statute § 627.428, as well as any further relief the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail via the Florida Courts E-filing Portal system on this 9" day of September, 2019, upon: Sonya P. Randolph, Esq., Font & Nelson, PLLC, Attorneys for Plaintiff, 200 S. Andrews Ave., Ste. 501, Fort Lauderdale, FL 33301, pleadings@fontnelson.com, srandolph@fontnelson.com. BRESSLER, AMERY & Ross, P.C. 200 East Las Olas Boulevard Suite 1500 Fort Lauderdale, Florida 33301 T: 954.499.7979 F: 954.499.7969 E-Mail: Miainsurancei” miainsurance@bressler.com oressier COM epstein@bressler.com By: _/s/_ Samantha Epstein Hope C. Zelinger Florida Bar No.: 92173 Samantha S. Epstein Florida Bar No.: 68693 EXHIBIT “A” FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature An act relating to insurance assignment agreements; creating s. 627.7152, F.S.; providing definitions; providing requirements and limitations for property insurance assignment agreements; providing a burden of proof; providing that an assignment agreement does not affect managed repair arrangements under a property insurance policy; providing that an assignment agreement does not confer or create authority to 10 adjust, negotiate, or settle a claim without 11 authorization under part VI of chapter 626; providing 12 that an acceptance by an assignee of an assignment 13 agreement is a waiver by the assignee and its 14 subcontractors of certain claims against an insured; 1s specifying an insured's payment obligations under an 16 assignment agreement; requiring notice of intent to 17 initiate litigation; specifying requirements for such 18 notice; requiring a written response to the notice of 19 intent to initiate litigation; specifying requirements 20 for such response; providing for an award of 21 reasonable attorney fees for certain claims arising 22 under an assignment agreement; providing for an award 23 of reasonable attorney fees following a voluntary 24 dismissal under certain circumstances; requiring the 25 court to stay proceedings under certain circumstances; Page 1 of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature 26 directing the Office of Insurance Regulation to 27 require insurers to report specified data; requiring 28 the Financial Services Commission to adopt rules; 29 providing applicability; creating s. 627.7153, F.S.?7 30 defining the term "assignment agreement"; authorizing 31 insurers to make available property insurance policies 32 restricting the assignment of post-loss benefits under 33 certain conditions; requiring annual notice of 34 coverage options; requiring a written or electronic 35 waiver under certain circumstances; requiring the 36 office to approve a waiver form; providing 37 applicability; amending s. 627.422, F.S.; providing 38 that residential or commercial property insurance 39 policies may not prohibit the assignment of post-lost 40 benefits; providing an exception; prohibiting Citizens 41 Property Insurance Corporation from implementing rate 42 changes for certain policies; providing an exception; 43 requiring certain rate filings to include specified 44 information; requiring the corporation to inform 45 policyholders of certain information; providing 46 severability; providing an effective date. 47 48 Be It Enacted by the Legislature of the State of Florida: 49 50 Section 1. Section 627.7152, Florida Statutes, is created Page 2 of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature S1 to read: 52 627.7152 Assignment agreements.— 53 (1) As_ used in this section, the term: 54 (a) "Assignee" means a person who is assigned post-loss 55 benefits through an assignment agreement. 56 (b) "Assignment agreement" means any instrument by which 57 post-loss benefits under a_ residential propert insurance polic 58 or commercial propert insurance policy, as that term is defined 59 ins. 627.0625(1), are assigned or transferred, or acquired in 60 an manner, in_whole or in part, to or from _a person providing 61 services to protect, repair, restore, or replace property or to 62 mitigate against further damage to the propert 63 (c) "Assignor" means a person who assigns post-loss 64 benefits under a residential property insurance policy or 65 commercial propert insurance polic to another person through 66 an assignment agreement. 67 (da) "Disputed amount" means the difference between the 68 assignee's presuit settlement demand and the insurer's presuit 69 settlement offer. 70 (e) "Judgment obtained" means damages recovered, if any, 71 but does not include an amount awarded for attorne fees, 72 costs, or interest. 73 (£) "Presuit settlement demand" means the demand made b 74 the assignee in the written notice of intent to initiate 75 litigation as required by paragraph (9) (a). Page 3 of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature 76 (g) "Presuit settlement offer" means the offer made by the 77 insurer in its written response to the notice of intent to 78 initiate litigation as required by paragraph (9) (b). 719 (2) (a) An assignment agreement must: 80 1 Be in writing and executed b and_ between the assignor 81 and the assignee. 82 2 Contain a provision that allows the assignor to rescind 83 the assignment agreement without a penalt or fee b submitting 84 a written notice of rescission signed by the assignor to the 85 assignee within 14 days after the execution of the agreement, at 86 least 30 days after the date work on the property is scheduled 87 to commence if the assignee has not substantially performed, or 88 at_least 30 days after the execution of the agreement if the 89 agreement does not contain a commencement date and the assignee 90 has not begun substantial work on the propert : 91 3 Contain a provision requiring the assignee to provide a 92 cop of the executed assignment agreement to the insurer within 93 3 business days after the date on which the assignment agreement 94 is executed or the date on which work begins, whichever is 95 earlier. Delivery of the copy of the assignment agreement to the 96 insurer ma be made: 97 a By personal service, overnight delivery, or electronic 98 transmission, with evidence of deliver in the form of a receipt 99 or other paper or electronic acknowledgement by the insurer; or 100 b To the location designated for receipt of such Page 4 of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature 101 agreements as specified in the polic : 102 4 Contain a written, itemized, per-unit cost estimate of 103 the services to be performed by the assignee. 104 5 Relate only to work to be performed by the assignee for 105 services to protect, repair, restore, or replace a dwelling or 106 structure or to mitigate against further damage to such 107 property. 108 6 Contain the following notice in 18-point uppercase and 109 boldfaced type: 110 111 YOU_ARE AGREEING TO GIVE UP CERTAIN RIGHTS YOU HAVE UNDER YOUR 112 INSURANCE POLICY TO A THIRD PARTY, WHICH MAY RESULT IN 113 LITIGATION AGAINST YOUR INSURER. PLEASE READ AND UNDERSTAND THIS 114 DOCUMENT BEFORE SIGNING IT. YOU HAVE THE RIGHT TO CANCEL THIS 115 AGREEMENT WITHOUT PENALTY WITHIN 14 DAYS AFTER THE DATE THIS 116 AGREEMENT IS EXECUTED, AT LEAST 30 DAYS AFTER THE DATE WORK ON 117 THE PROPERTY IS SCHEDULED TO COMMENCE IF THE ASSIGNEE HAS NOT 118 SUBSTANTIALLY PERFORMED, OR_AT LEAST 30 DAYS AFTER THE EXECUTION 119 OF THE AGREEMENT IF THE AGREEMENT DOES NOT CONTAIN A 120 COMMENCEMENT DATE AND THE ASSIGNEE HAS NOT BEGUN SUBSTANTIAL 121 WORK ON THE PROPERTY. HOWEVER, YOU ARE OBLIGATED FOR PAYMENT OF 122 ANY CONTRACTED WORK PERFORMED BEFORE THE AGREEMENT IS RESCINDED. 123 THIS AGREEMENT DOES NOT CHANGE YOUR OBLIGATION TO PERFORM THE 124 DUTIES REQUIRED UNDER YOUR PROPERTY INSURANCE POLICY. 125 Page 5of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature 7 126 Contain a provision requiring the assignee to indemnif 127 and hold harmless the assignor from all liabilities, damages, 128 losses, and_costs, including, but not limited to, attorne fees, 129 should the policy subject to the assignment agreement prohibit, 130 in_whole or in part, the assignment of benefits. 131 (b) An_ assignment agreement may not contain: 132 A penalt or fee for rescission under subparagraph 133 (a) 2.7 134 A_ check or mortgage processing fee; 135 A penalt or fee for cancellation of the agreement; or 136 An_ administrative fee. 137 (c) If an_assignor acts under an urgent or emergenc 138 circumstance to protect propert from damage and executes an 139 assignment agreement to protect, repair, restore, or replace 140 propert or to mitigate against further damage to the property, 141 an_ assignee may not receive an assignment of post-loss benefits 142 under a _ residential propert insurance polic in_excess of the 143 greater of $3,000 or 1 percent of the Coverage A limit under 144 such polic For purposes of this paragraph, the term "urgent or 145 emergency circumstance" means a situation in which a loss to 146 propert t if not addressed immediatel Lt will result in 147 additional damage until measures are completed to prevent such 148 damage. 149 (d) An_ assignment agreement that does not comply with this 150 subsection is invalid and unenforceable. Page 6of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature 151 (3) In_a claim arising under an assignment agreement, an 152 assignee has the burden to demonstrate that the insurer is not 153 prejudiced by the assignee's failure to: 154 (a) Maintain records of all services provided under the 155 assignment agreement. 156 (b) Cooperate with the insurer in the claim investigation. 157 (c) Provide the insurer with requested records and 158 documents related to the services provided, and permit the 159 insurer to make copies of such records and documents. 160 (d) Deliver a_cop of the executed assignment agreement to 161 the insurer within 3 business days after executing the 162 assignment agreement or work has begun, whichever is earlier. 163 (4) An assignee: 164 (a) Must provide the assignor with accurate and up-to-date 165 revised estimates of the scope of work to be performed as 166 supplemental or additional repairs are required. 167 (b) Must perform the work in accordance with accepted 168 industry standards. 169 (c) Ma not seek payment from the assignor exceeding the 170 applicable deductible under the policy unless the assignor has 171 chosen to have additional work performed at the assignor's own 172 expense. 173 (da) Must, as_a_condition precedent to filing suit under 174 the policy, and, if required by the insurer, submit to 175 examinations under oath and recorded statements conducted by the Page 7of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature 176 insurer or the insurer's representative that are reasonabl 177 necessary, based on the scope of the work and the complexity of 178 the claim, which examinations and recorded statements must be 179 limited to matters related to the services provided, the cost of 180 the services, and the assignment agreement. 181 (e) Must, as_a condition precedent to filing suit under 182 the policy, and, if required by the insurer, participate in 183 appraisal or other alternative dispute resolution methods in 184 accordance with the terms of the policy. 185 (5) An_ assignment agreement and this section do not modif 186 or eliminate any term, condition, or defense relating to any 187 managed repair arrangement provided in the polic : 188 (6) An assignment agreement does not transfer or create 189 any authority to adjust, negotiate, or settle any portion of a 190 claim to a person or entit not authorized to adjust, negotiate, 191 or settle a claim on behalf of an assignor or a claimant under 192 part VI of chapter 626. 193 (7) (a) Notwithstanding any other provision of law, and 194 except as provided in paragraph (b), acceptance b an_assignee 195 of an assignment agreement is a waiver by the assignee and its 196 subcontractors of claims against a named insured for payments 197 arising from the assignment agreement. The assignee and its 198 subcontractors ma not collect or attempt to collect mone from 199 an insured, maintain any action at law against an insured, claim 200 a_lien on the real propert of an insured, or report an insured Page 8 of 16 CODING: Words sis'ckes are deletions; words underlined are additions. hb7065-04-er FLOR | DA HOUSE OF REPRESENTA T | Ves ENROLLED CS/CS/HB 7065 , Engrossed 1 2019 Legislature 201 to_a_credit agenc for payments arising from the assignment 202 agreement. Such waiver rema