Advance Mold Services, Inc., etc. v. Universal North America Insurance Company

• Court: District Court of Appeal of Florida
• Decided: December 20, 2023
• Docket: 2023-0240
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 20, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-0240 Lower Tribunal No. 22-34088 CC ________________

Advance Mold Services, Inc., etc., Appellant,

vs.

Universal North America Insurance Company, Appellee.

An Appeal from the County Court for Miami-Dade County, Ayana Harris, Judge.

Leader, Leader & Zucker, PLLC, and Michael D. Leader and Scott R. Zucker (Ft. Lauderdale); and Neil Rose (Hollywood), for appellant.

Galloway, Johnson, Tompkins, Burr & Smith, PLC, and David T. Burr (Tampa), for appellee.

Before LINDSEY, GORDO, and LOBREE, JJ.

PER CURIAM. Appellant Advance Mold Services, Inc. d/b/a Ocean Coast Restoration,

as assignee of Glenn Franklyn, appeals from a final order dismissing its

breach of contract action against Appellee Universal North America

Insurance Company. The trial court dismissed pursuant to § 627.7152(2)(b),

Florida Statutes (2023), which prohibits assignment agreements from

containing certain fees, including an administrative fee. Advance Mold

argues that dismissal with prejudice was improper because the trial court

never determined the nature of the fee in question. We agree and therefore

reverse the dismissal and remand for further proceedings.

In April 2020, Advance Mold entered into an Assignment Agreement

with Franklyn, who was insured by Universal. According to the allegations

in the Complaint, Advance Mold provided mold remediation services, and

Universal failed to pay. Advance Mold sued Universal for breach of contract.

Universal moved to dismiss arguing that Advance Mold’s Assignment

Agreement was invalid pursuant to § 627.7152(2)(b), which provides that

“[a]n assignment agreement may not contain . . . . [a]n administrative fee.”

According to Universal, Advance Mold was in violation of the statute because

2 its estimate of services contained the following line item: “Hazardous

Waste/Mold Cleaning-Supervisory/Admin-per hour.” 1

At the hearing on the motion to dismiss, Advance Mold argued that the

fee was for a supervisor at the jobsite and not a clerical fee associated with

administering the Assignment Agreement. The trial judge asked counsel for

Universal if she had to determine that the fee in question was in fact an

administrative fee. Counsel for Universal answered that the fact that the line

item in the estimate contained the word “admin” was enough on its face to

dismiss with prejudice. The court ultimately entered an order dismissing

Advance Mold’s action with prejudice.

On appeal, Advance Mold argues that the nature of the fee in question

involves a factual dispute and therefore could not be resolved at the motion

to dismiss phase. We agree. “A motion to dismiss is designed to test the

legal sufficiency of a complaint and not to determine any factual issues.”

Chodorow v. Porto Vita, Ltd., 954 So. 2d 1240, 1242 (Fla. 3d DCA 2007)

(citing The Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006)). We

therefore reverse the dismissal and remand for the trial court to consider

1 Section 627.7152(2)(a)(5) requires assignment agreements to “[c]ontain a written, itemized, per-unit cost estimate of the services to be performed by the assignee.”

3 whether the fee is in fact an administrative fee prohibited by §

627.7152(2)(b).

Reversed and remanded.