NICON CONSTRUCTION, INC. A/ A/ O RICHARD PRAGER v. HOMEOWNERS CHOICE PROPERTY AND CASUALTY INSURANCE

249 So. 3d 681

• Court: District Court of Appeal of Florida
• Decided: May 11, 2018
• Docket: 16-1586
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

NICON CONSTRUCTION, INC., ) a/a/o Richard Prager, ) ) Appellant, ) ) v. ) Case No. 2D16-1586 ) HOMEOWNERS CHOICE ) PROPERTY AND CASUALTY ) INSURANCE COMPANY; and ) B&M CLEAN, LLC, d/b/a Sun ) Construction, ) ) Appellees. ) ________________________________ )

Opinion filed May 11, 2018.

Appeal from the Circuit Court for Hillsborough County; Rex Barbas, Judge.

Jason Ciofalo of Mackinnon Law Group, P.A., Tampa; and Susan W. Fox and Gray R. Proctor of Fox & Loquasto, P.A., Orlando, for Appellant.

Andrew A. Labbe of Groelle & Salmon, P.A., Tampa, for Appellee Homeowners Choice Property and Casualty Insurance Company.

No appearance for Appellee B&M Clean, LLC. KELLY, Judge.

Nicon Construction, Inc., appeals from a summary judgment entered in

favor of Homeowners Choice Property and Casualty Insurance Company on a breach of

insurance contract claim. We reverse.

Homeowners Choice issued a property insurance policy to Richard

Prager. In April 2012 a pipe burst in Mr. Prager's home. In exchange for immediate

emergency services, Mr. Prager provided assignments of benefits from his insurance

policy to two firms: B&M Clean, LLC, for water and debris removal, and Nicon, an

asbestos remediation provider. Later that year, when he discovered additional water

damage, Mr. Prager again provided assignments of benefits to B&M Clean and Nicon.

Eventually, both B&M Clean and Nicon sued Homeowners Choice for

breach of the insurance contract alleging that it had failed to pay all benefits due them

under the policy. Homeowners Choice obtained a summary judgment against Nicon

after persuading the trial court that Nicon's assignment was invalid because at the time

Mr. Prager provided the assignment to Nicon, he had already assigned all the benefits

for this loss to B&M Clean. To reach this conclusion, the trial court focused on a portion

of the assignment that states Mr. Prager is assigning "any and all insurance rights,

benefits, and causes of action under my property insurance policy" to B&M Clean. The

court reasoned that because of this language, Mr. Prager had no further rights under

the policy left to assign to Nicon. We conclude the trial court erred in its interpretation of

the assignment.

The interpretation of a contract is a question of law, and we are not

restricted in our review powers from reaching a construction that is contrary to the one

-2- reached by the trial court. See City of Tampa v. Ezell, 902 So. 2d 912, 914 (Fla. 2d

DCA 2005). "In construing a contract, the intent of the parties should be determined

from the words of the contract as a whole." Id. (citing Fla. Power Corp. v. City of

Tallahassee, 18 So. 2d 671 (Fla. 1944)). "The court also should consider the conditions

and circumstances surrounding the parties and the objects to be obtained in executing

the contract." Id.

In finding that Mr. Prager had no further interest in the claim to assign to

Nicon, the trial court isolated a phrase in the assignment rather than viewing it in the

context of the entire agreement. When the phrase "any and all insurance rights,

benefits, and causes of action under my property insurance policy" is read in the context

of the entire assignment and the purpose for which it was entered into, it is evident that

Mr. Prager was assigning all his rights under the policy to payment for the services

performed by B&M Clean—not all his rights to payment for the entire covered claim.

Accordingly, the assignment to Nicon was valid, and it was error for the trial court to

enter summary judgment in favor of Homeowners Choice.

Reversed and remanded for further proceedings.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

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