Opinion
No. 2D20-2665
05-06-2022
ALL INSURANCE RESTORATION SERVICES, INC., a/a/o Juan Lugo and Haydee Lugo, Appellant, v. HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
Melissa A. Giasi and Erin M. Berger of Giasi Law, P.A., Tampa, for Appellant. Kara Rockenbach Link and Daniel M. Schwarz of Link & Rockenbach, PA, West Palm Beach, for Appellee.
Melissa A. Giasi and Erin M. Berger of Giasi Law, P.A., Tampa, for Appellant.
Kara Rockenbach Link and Daniel M. Schwarz of Link & Rockenbach, PA, West Palm Beach, for Appellee.
NORTHCUTT, Judge.
All Insurance Restoration Services, Inc. (AIRS), challenges an order dismissing its amended complaint against Heritage Property and Casualty Insurance Company. We reverse because no basis for dismissal appeared within the four corners of AIRS's amended complaint.
This appeal arises out of four consolidated breach-of-contract suits concerning two water-damage losses at the home of Juan and Haydee Lugo. Prior to the commencement of mitigation efforts, the Lugos executed two assignment-of-benefits (AOB) forms in favor of AIRS, one for each of the two losses. Proceeding under one of the AOBs, in case 19-CC-7988 AIRS sued Heritage, the Lugos' insurer, seeking payment for its work at the Lugos' home.
Heritage moved to dismiss the complaint on the grounds that the AOB was ineffective and that AIRS therefore lacked standing because the Lugos had not complied with a condition in their insurance policy requiring that they obtain the consent of their mortgagee, JPMorgan Chase, prior to assigning benefits under the policy. The circuit court reviewed conflicting caselaw on the enforceability of such insurance policy conditions and ruled in favor of Heritage, dismissing AIRS's complaint in case 7988. AIRS now appeals that ruling.
The parties devote most of their briefing to the merits of the question whether a policy provision requiring that a mortgagee consent to an assignment of benefits is enforceable. We have issued prior rulings suggesting that the circuit court reached the correct conclusion on the merits of that issue. See UCMS LLC v. ASI Assurance Corp. , 321 So. 3d 738 (Fla. 2d DCA 2021) ; Gale Force Roofing & Restoration, LLC v. ASI Preferred Ins. Co. , 313 So. 3d 102 (Fla. 2d DCA 2021). But we do not reach that legal question in this appeal because a factual issue should have precluded dismissal of AIRS's suit.
"When considering an order granting a motion to dismiss, the de novo standard of review applies." Belcher Ctr. LLC v. Belcher Ctr., Inc. , 883 So. 2d 338, 339 (Fla. 2d DCA 2004) (citing Al–Hakim v. Holder, 787 So. 2d 939, 941 (Fla. 2d DCA 2001) ). Additionally, "a trial court is confined to the four corners of the complaint, and the material allegations of the complaint must be taken as true." Id. (citing Davidson v. Iona–McGregor Fire Prot. & Rescue Dist. , 674 So. 2d 858, 859 (Fla. 2d DCA 1996) ). Along with the complaint's allegations, "[w]e also review the exhibits to the complaint because they are considered part of the complaint when ruling on a motion to dismiss." McKey v. D.R. Goldenson & Co. 763 So. 2d 409, 410 (Fla. 2d DCA 2000) ; see also Fla. R. Civ. P. 1.130(b) ("Any exhibit attached to a pleading must be considered a part thereof for all purposes.").
Heritage contends that the allegations in the complaint, together with the attached insurance policy and AOB form, demonstrate that the home's mortgagee had not consented to the assignment, rendering it ineffective and leaving AIRS without standing to sue to recover benefits under the policy. See generally Llano Fin. Grp., LLC v. Yespy , 228 So. 3d 108, 112 (Fla. 4th DCA 2017) (observing that the affirmative defense of lack of standing may be considered on a motion to dismiss when the face of the complaint and its attachments demonstrate the existence of the defense). Indeed, the attached policy required that an assignee obtain the written consent of "all insureds, all additional insureds and all mortgagee(s) named in the policy," and the attached AOB form did not bear a signature from any representative of JPMorgan Chase.
However, those facts standing alone were not dispositive of the standing issue. Notably, the policy provision requiring that the Lugos' mortgagee consent to an assignment of benefits did not prescribe any particular method of expressing that consent, other than that it be in writing. It is therefore possible that the necessary consent in this case could have been given in a writing other than the AOB form. Further, it is also possible that Juan Lugo signed the AOB form as an agent of the mortgagee. Neither of these possibilities is foreclosed by the face of the complaint and its attachments.
Consistent with those possibilities, AIRS alleged in its complaint that all conditions precedent had occurred. Such an allegation is generally all that is required at the motion-to-dismiss stage. See Fla. R. Civ. P. 1.120(c) ("In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred."); cf. Cabral v. City of Miami Beach , 76 So. 3d 324, 326–27 (Fla. 3d DCA 2011) (explaining that when the plaintiff alleges performance of conditions precedent, the defendant's dispute of that allegation is generally presented in a motion for summary judgment or motion for judgment on the pleadings).
Because the face of the complaint and its attachments do not demonstrate that AIRS failed to obtain the consent of the mortgagee, dismissal was inappropriate. We therefore reverse the order dismissing AIRS's complaint and remand for further proceedings.
Reversed and remanded.
LUCAS, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.