Emergency Services 24, Inc. a/a/o Jay Meiselman v. United Property & Casualty Ins. Co.

District Court of Appeal of Florida

Emergency Services 24, Inc. a/a/o Jay Meiselman v. United Property & Casualty Ins. Co.

165 So. 3d 736, 2015 Fla. App. LEXIS 7624

CourtDistrict Court of Appeal of Florida

DecidedMay 20, 2015

Docket4D14-576 & 4D14-3320

StatusPublished

This text of 165 So. 3d 736 (Emergency Services 24, Inc. a/a/o Jay Meiselman v. United Property & Casualty Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Emergency Services 24, Inc. a/a/o Jay Meiselman v. United Property & Casualty Ins. Co., 165 So. 3d 736, 2015 Fla. App. LEXIS 7624 (Fla. Ct. App. 2015).

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Opinion

TAYLOR, J.

ASAP Restoration and Construction appeals a final order dismissing a complaint that it filed, as an assignee of an insured on a homeowners’ policy, against Tower Hill Signature Insurance for breach of contract. Because the trial court erred in finding that the anti-assignment clause and the loss payment provision precluded the assignment, we reverse and remand for further proceedings. See One Call Prop. Servs. v. Sec. First Ins. Co., No. 4D14-424 (Fla. 4th DCA 2015).

We emphasize, however, that we decline to reach any of the insurer’s other challenges to the assignment, including whether the assignment violates the public adjuster statute or the- statute governing insurable interests, 1 or whether the language of the assignment was so broad that it constituted an assignment of the entire policy in violation of,the anti-assignment clause. 2 The trial court should address these issues in the first instance. See Stark v. State Farm Fla. Ins. Co., 95 So.3d 285, 289 n. 4 (Fla. 4th DCA 2012) (declining to apply the tipsy coachman doctrine and explaining that an appellate court should not ordinarily decide issues not ruled on by the trial court in thé first instance).

Reversed and Remanded.

DAMOORGIAN, C.J., and MAY, J., concur.

1

. For the trial court’s benefit on remand, we note that the Fifth District recently held that a post-loss assignee is not required to have an insurable interest at the time of loss. See Accident Cleaners, Inc. v. Universal Ins. Co., 2015 WL 1609973 (Fla. 5th DCA Apr.10, 2015). The court explained that the legislature, in enacting section 627.405, Florida Statutes, "did not state that it was displacing well-settled common law of (1) the free as-signability of contractual rights to recover or (2) the inability for insurers to restrict post-loss assignments.” Id. at *2.

2

. The last of these challenges was not adequately briefed and was raised by the insurer for the first time at oral argument.

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TAYLOR, J.

ASAP Restoration and Construction appeals a final order dismissing a complaint that it filed, as an assignee of an insured on a homeowners’ policy, against Tower Hill Signature Insurance for breach of contract. Because the trial court erred in finding that the anti-assignment clause and the loss payment provision precluded the assignment, we reverse and remand for further proceedings. See One Call Prop. Servs. v. Sec. First Ins. Co., No. 4D14-424 (Fla. 4th DCA 2015).

We emphasize, however, that we decline to reach any of the insurer’s other challenges to the assignment, including whether the assignment violates the public adjuster statute or the- statute governing insurable interests, 1 or whether the language of the assignment was so broad that it constituted an assignment of the entire policy in violation of,the anti-assignment clause. 2 The trial court should address these issues in the first instance. See Stark v. State Farm Fla. Ins. Co., 95 So.3d 285, 289 n. 4 (Fla. 4th DCA 2012) (declining to apply the tipsy coachman doctrine and explaining that an appellate court should not ordinarily decide issues not ruled on by the trial court in thé first instance).

Reversed and Remanded.

DAMOORGIAN, C.J., and MAY, J., concur.

1

. For the trial court’s benefit on remand, we note that the Fifth District recently held that a post-loss assignee is not required to have an insurable interest at the time of loss. See Accident Cleaners, Inc. v. Universal Ins. Co., 2015 WL 1609973 (Fla. 5th DCA Apr.10, 2015). The court explained that the legislature, in enacting section 627.405, Florida Statutes, "did not state that it was displacing well-settled common law of (1) the free as-signability of contractual rights to recover or (2) the inability for insurers to restrict post-loss assignments.” Id. at *2.

2

. The last of these challenges was not adequately briefed and was raised by the insurer for the first time at oral argument.

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Bluebook (online)

165 So. 3d 736, 2015 Fla. App. LEXIS 7624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emergency-services-24-inc-aao-jay-meiselman-v-united-property-fladistctapp-2015.

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