THE KIDWELL GROUP, LLC D/B/A AIR QUALITY ASSESSORS OF FLORIDA A/A/O MARIA AMADIO vs OLYMPUS INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: July 22, 2022
• Docket: 21-2955
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

THE KIDWELL GROUP, LLC D/B/A AIR QUALITY ASSESSORS OF FLORIDA A/A/O MARIA AMADIO,

Appellant,

v. Case No. 5D21-2955 LT Case No. 2020-SC-30282-0

OLYMPUS INSURANCE COMPANY,

Appellee.

________________________________/

Opinion filed July 22, 2022

Appeal from the County Court for Orange County, Amy Jo Carter, Judge.

Chad A. Barr, of Chad Barr Law, Altamonte Springs, for Appellant.

Kimberly J. Fernandes, of Kelley Kronenberg, Tallahassee, for Appellee.

EISNAUGLE, J. The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o

Maria Amadio (“Kidwell”), appeals an order granting Olympus Insurance

Company’s (“Olympus”) motion to dismiss with prejudice arguing, inter alia,

that the trial court erred because it retroactively applied section 627.7152,

Florida Statutes (2019). We disagree and affirm.

Factual and Procedural Background

A windstorm damaged Maria Amadio’s home in September of 2017,

and she reported the damage to Olympus, her insurer. Then, in October of

2019, Amadio executed an assignment of benefits in favor of Kidwell.

Kidwell submitted an invoice to Olympus and later filed suit when

Olympus failed to make payment. Olympus moved to dismiss the complaint,

arguing that the purported assignment to Kidwell did not comply with section

627.7152.

In response to the motion to dismiss, Kidwell observed that the

insurance policy was issued before the statute’s effective date. As such,

Kidwell argued that the statute as written did not indicate that it applies

retroactively to the insurance policy, and in any event, retroactive application

of section 627.7152 to the policy would be unconstitutional.

The trial court disagreed with Kidwell and dismissed the complaint with

prejudice, reasoning that section 627.7152 applies to the date of the

2 assignment of benefits and not, as Kidwell advanced, the date the insurance

policy was issued. This appeal follows.

Application of Section 627.7152

On appeal, Kidwell does not claim that it complied with section

627.7152. Instead, Kidwell argues that the insurance policy was issued prior

to the effective date of the statute and that the statute does not apply

retroactively to the policy. We conclude that Kidwell’s argument is without

merit because the operative date for purposes of the statute is the date of

the assignment, not the date the insurance policy was issued.

Section 627.7152 provides a list of requirements for any agreement

that assigns post-loss benefits under a property insurance policy “to or from

a person providing services to protect, repair, restore, or replace property or

to mitigate against further damage to the property.” § 627.7152(1)(b), (2)(a).

Any assignment agreement that fails to comply with these requirements is

“invalid and unenforceable.” § 627.7152(2)(d). Important here, the statute

expressly applies to assignment agreements “executed on or after July 1,

2019.” § 627.7152(13).1

1 The effective date of the act is also July 1, 2019. Ch. 2019-57, § 6, Laws of Fla.

3 Recently, our sister court addressed Kidwell’s argument in Total Care

Restoration, LLC v. Citizens Property Insurance Corp., 337 So. 3d 74 (Fla.

4th DCA 2022). In that case, the fourth district considered whether section

627.7152’s ten-day notice requirement “applies to an assignment of

insurance benefits executed after the effective date of the statute, even

where the underlying policy was issued before that effective date.” Id. at 75.

Our sister court held that “the statute was not applied retroactively—the trial

court applied it to an assignment executed after the effective date of the

statute.” Id. at 76. In so doing, Total Care explained:

This case does not involve the application of a statute to a preexisting insurance policy; it concerns a statute’s application to an assignment created after the effective date of the statute. Thus, section 627.7152—the law in effect at the time the assignment of benefits was executed—was properly applied to the assignment in this case.

Id. at 77.

In direct conflict with Total Care, Kidwell relies, inter alia, on Procraft

Exteriors, Inc. v. Metropolitan Casualty Insurance Co., 29 Fla. L. Weekly Fed.

D71 (M.D. Fla. 2020).2 In Procraft, the United States District Court

considered whether the plaintiff assignee’s claim to attorney’s fees was

2 The United States District Court did not have the benefit of Total Care at the time it decided Procraft.

4 governed by the new statute, section 627.7152(10), or by the previously

controlling statute, section 627.428. Id.

Notably, Procraft acknowledged that the assignment was executed

after section 627.7152(10)’s effective date, but unlike Total Care, held that

section 627.7152(10) did not apply because section 627.428 “was the

effective statute when the insurance policy was issued.” Id. at D72

(emphasis added). In so doing, Procraft reasoned that “[the assignee]

stepped into the shoes of [the insured] when the assignment of benefits of

contract was issued, and was thereby entitled to the same rights as [the

insured] under said contract.” Id.3

We disagree with Procraft’s conclusion that a party can claim it

“stepped into the shoes” of another when there is a statute in effect at the

time dictating otherwise. The assignment in this case was “invalid and

unenforceable” because Kidwell indisputably failed to comply with section

3 Procraft also relied on CMR Construction & Roofing, LLC v. Hartford Insurance Co. of the Midwest, 29 Fla. L. Weekly Fed. D67 (S.D. Fla. 2020), JPJ Companies, LLC v. Hartford Insurance Co. of the Midwest, 29 Fla. L. Weekly Fed. D72 (S.D. Fla. 2020), and Menendez v. Progressive Express Insurance Co., 35 So. 3d 873, 878–79 (Fla. 2010) to support its analysis. However, those cases are inapposite for the reasons explained in Total Care. See Total Care, 337 So. 3d at 77.

5 627.7152. As a result, Kidwell never successfully stepped into the shoes of

the insured.

Having rejected Procraft, we align ourselves with Total Care4 and hold

that, based on the plain language of the statute, the trial court properly

applied section 627.7152 prospectively to the assignment agreement in this

case. We therefore affirm the trial court’s order dismissing Kidwell’s

complaint with prejudice.5

AFFIRMED.

COHEN and NARDELLA, JJ., concur.

4 While we agree with most of the analysis in Total Care, we disagree with Total Care’s use of legislative history (the Final Staff Analysis in the Florida House). Total Care, 337 So. 3d at 76 n.1. We adhere to the “supremacy-of-text principle” when interpreting a statute, Forrester v. Sch. Bd. of Sumter Cnty., 316 So. 3d 774, 776 (Fla. 5th DCA 2021) (quoting Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020)), and we gather the purpose of a statute “only from the text itself.” See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (1st Ed. 2012). In short, legislative history is irrelevant to our analysis in this case because it is inconsistent with our application of the supremacy-of- text principle.

Given our disposition, we need not reach Kidwell’s argument that 5

retroactive application of section 627.7152 to the insurance policy would be unconstitutional.