TOTAL CARE RESTORATION, LLC, A/A/O YOEL BERNAL v. CITIZENS PROPERTY INSURANCE CORPORATION

• Court: District Court of Appeal of Florida
• Decided: March 15, 2023
• Docket: 22-0711
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 15, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-711 Lower Tribunal No. 21-31745 CC ________________

Total Care Restoration, LLC, a/a/o Yoel Bernal, Appellant,

vs.

Citizens Property Insurance Corporation, Appellee.

An Appeal from the County Court for Miami-Dade County, Elijah A. Levitt, Judge.

Law Office of Chad A. Barr, P.A., and Chad A. Barr and Dalton L. Gray (Altamonte Springs), for appellant.

Dean, Ringers, Morgan & Lawton, P.A., and Jessica C. Conner (Orlando), for appellee.

Before EMAS, MILLER and LOBREE, JJ.

EMAS, J. INTRODUCTION

Total Care Restoration, LLC (as assignee of Yoel Bernal) appeals the

trial court’s order dismissing its breach of contract complaint with prejudice.

The trial court dismissed the complaint based on Total Care’s failure to

comply with section 627.7152(2)(a)4., Florida Statutes (2021), 1 which

provides that an assignment of benefits agreement must “[c]ontain a written,

itemized, per-unit cost estimate of the services to be performed by the

assignee.” (Emphasis added). The assignment of benefits agreement in the

instant case contained a generic list of available services, together with their

unit cost, which the trial court concluded was insufficient to satisfy the

statute’s requirement, rendering the assignment agreement statutorily

invalid and unenforceable. We agree with the trial court’s conclusion and, for

the reasons that follow, affirm the trial court’s order.

FACTUAL BACKGROUND

Yoel Bernal’s home, insured by Citizens, suffered a loss due to water

damage on June 17, 2021. Twelve days later, Bernal entered into an

assignment agreement, by which he assigned his insurance benefits to Total

Care in exchange for water dry-out services performed on Bernal’s property.

1 The statute was later amended in 2022, see Ch. 2022-271, § 21, Laws of Florida. Although subsection (2)(a)4. was moved to subsection (2)(a)5., the statutory language remained unchanged.

2 Attached to the assignment agreement was a document entitled “Itemized

per-Unit Cost Estimate.” That document contained a list of available

“emergency” and “non-emergency” services, together with a unit price for

each service. After performing services on Bernal’s property, Total Care

submitted its assignment agreement and invoices to Citizens. Citizens

denied full reimbursement. In response, Total Care filed the underlying

lawsuit for breach of contract, seeking to recover $16,066.32 in damages.

Attached to the complaint was the assignment of benefits agreement (with

the list described above), together with invoices submitted to Citizens for the

work performed.

Citizens moved to dismiss the complaint with prejudice, contending

that the assignment of benefits agreement, on its face, failed to comply with

section 627.7152(2)(a)4., Florida Statutes (2021) (requiring that an

assignment of benefits agreement “[c]ontain a written, itemized, per-unit cost

estimate of the services to be performed by the assignee”) rendering the

assignment agreement invalid and unenforceable. Id. § 627.7152(2)(d)

(providing: “An assignment agreement that does not comply with this

subsection is invalid and unenforceable.”)

More specifically, Citizens contended the assignment agreement did

not contain “a written, itemized, per-unit cost estimate of the services to be

3 performed by assignee” as required by the statute. In response, Total Care

contended that the assignment agreement contained an itemized per-unit

cost estimate in compliance with the statute; Citizens lacked privity to

challenge the assignment agreement; and non-compliance with the statute

would render the assignment agreement voidable, not void, and—if

voidable—Citizens would have no standing to challenge the assignment

agreement since it was not a party to, or third-party beneficiary of, the

assignment agreement.

Following a hearing, the trial court entered its order dismissing the case

with prejudice, on the basis that the assignment agreement was invalid and

unenforceable because it does not contain the itemized, per-unit cost

estimate of the services to be performed as required by section

627.7152(2)(a)4., but instead simply a list of available services offered by

Total Care. This appeal followed.

STANDARD OF REVIEW

The court reviews the granting of a motion to dismiss de novo.

People's Tr. Ins. Co. v. Alonzo-Pombo, 307 So. 3d 840, 842 (Fla. 3d DCA

2020). In doing so, a reviewing court is generally limited to the four corners

of the complaint and any attachments. Fla. R. Civ. P. 1.130(b) (“Any exhibit

attached to a pleading must be considered a part thereof for all purposes.”)

4 In the event of an inconsistency between the allegations of the complaint

and the language in the attachment, the attachment controls. K.R. Exch.

Servs., Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So. 3d 889, 894 (Fla. 3d

DCA 2010) (“It is well settled that the court must consider an exhibit attached

to the complaint together with the complaint's allegations, and that the exhibit

controls when its language is inconsistent with the complaint's allegations.”)

Questions of law, such as construction of a statute, are also subject to de

novo review. Aramark Unif. and Career Apparel, Inc. v. Easton, 894 So. 2d

20, 23 (Fla. 2004); Mattino v. City of Marathon, 345 So. 3d 939, 943 (Fla. 3d

DCA 2022).

DISCUSSION AND ANALYSIS

Enacted by the legislature in 2019, section 627.7152, Florida Statutes

(2021), governs assignment of benefits agreements. Subsection (2)(a)

enumerates several requirements for a valid and enforceable assignment of

benefits agreement. Relevant to the instant case, the statute requires: “An

assignment agreement must. . . [c]ontain a written, itemized, per-unit cost

estimate of the services to be performed by the assignee.” Id. §

627.7152(2)(a)4. In addition, section (2)(d) provides: “An assignment

agreement that does not comply with this subsection is invalid and

unenforceable.”

5 The provision’s plain language requires an itemized cost estimate of

services “to be performed” on the property. By contrast, the document

provided by Total Care is nothing more than a generic menu of available

services offered by Total Care, listing the cost of each available service.

Here is the actual document attached to the assignment agreement:

6 While Total Care contends this document meets the statute’s

requirement of “a written, itemized, per-unit cost estimate of the services to

be performed by the assignee,” we conclude it falls far short. It is not tailored

to the insured or to the services to be performed on this particular property.

Instead, it is simply a listing of services offered by Total Care, divided into

two categories—"Emergency Service Price” and “Non-Emergency Prices.”

The services listed under the two categories overlap nearly completely

(the emergency category lists twenty-two services, while the non-emergency

category lists eighteen identical services), with the difference being the cost

of an available service performed on an emergency versus non-emergency

basis. Such a generic menu of services available to any customer manifestly

fails to comply with the “itemized, per-unit cost estimate of the services to be

performed” required by section 627.7152(2)(a)4.

Indeed, this document is not an “estimate” at all, because it fails to set

forth: the specific services being performed by Total Care on Mr. Bernal’s

property; whether those services are being performed on an emergency or

non-emergency basis; and the estimated cost for each of the services being

performed on the property based on the number of “units” (e.g., number of

hours/days needed for each service and/or number of square feet involved

for each specific service being performed on the insured’s property).

7 We find persuasive the reasoning and holding of our sibling court in Air

Quality Experts Corp. v. Fam. Sec. Ins. Co., 351 So. 3d 32 (Fla. 4th DCA

2022), which is indistinguishable in all material respects from this case. In

Air Quality, an assignee under a homeowner’s property insurance

assignment agreement submitted bills to the insurer. When the insurer

refused to pay, the assignee sued, attaching to the complaint the assignment

agreement contract and two invoices. The assignment agreement included

“a standard price list of the types of services offered by the assignee with

their unit price.” Id. at 37. As the Fourth District explained, “[t]here was

nothing in the attachment which tied the price list to the insured’s home so

that it could be considered an estimate.” Id.

The insurer moved to dismiss with prejudice arguing that the amended

statement of claim (on its face) failed to meet the requirement that “[a]n

assignment agreement must . . . [c]ontain a written, itemized, per-unit cost

estimate of the services to be performed by the assignee,” and the failure to

comply meant that the assignment was “invalid and unenforceable.” §§

627.7152(2)(a)4., (2)(d).

In response, the assignee in Air Quality raised many of the same

arguments Total Care raises here: the price list attached to the assignment

agreement was sufficient to meet the statutory requirements; and the insurer

8 did not have standing to challenge the assignment’s validity on two bases:

(a) if the assignment was invalid, it would be voidable, not void; and (b) the

insurer was not a party to the assignment or in privity of contract with the

assignee. In affirming the trial court’s order, the Fourth District rejected each

of these arguments as without merit. We agree fully with our sister court’s

reasoning.

For example, as to the assignee’s standing arguments, the court

maintained its focus on the statute’s plain language, explaining that it is the

assignee, rather than the insurer, who lacks standing, as it sought to enforce

a claim to insurance proceeds based upon “an invalid assignment.” Id. at 37-

38. The Fourth District further held:

Here the statute expressly declares [that] an assignment violative of its requirements is ‘invalid and unenforceable’, precluding its enforcement by courts. § 627.7152(2)(d). As the assignee’s right to sue the insurance company derives from an invalid document, the courts cannot enforce it.

Id. at 38-39.

As for Total Care’s contention that, under subsection (2)(d), an “invalid

and unenforceable” assignment agreement is rendered merely voidable not

void, we reject (as did Air Quality) this proposed construction of the statutory

phrase “invalid and unenforceable.” We also reject Total Care’s related

argument that the statutory phrase “invalid and unenforceable” is at best

9 ambiguous, and thus the trial court was premature in dismissing the action.

To the extent a different conclusion was reached in SFR Services, LLC v.

Indian Harbor Insurance Co., 529 F. Supp. 3d 1285, 1294 (M.D. Fla. 2021)

(“Even if the statutory terms ‘invalid and unenforceable’ could mean ‘void,’

they could also mean voidable. So the question of whether a noncomplying

AOB is void or merely voidable cannot be answered merely by referring

without further analysis to the statutory language ‘invalid and

unenforceable’”), we disagree and instead adopt the reasoning of our sister

court in Air Quality:

SFR does not cite to any Florida law when it stated that a statute may declare a contract void but instead mean that it is voidable. Indeed, we can find no such law. The court also noted that the Legislature did not use the word “void” but “invalid.” SFR Servs., 529 F. Supp. 3d at 1293-94.

While the definitions of “void” and “invalid” are distinct, they are not substantially different. “Void” means “of no legal effect,” while “invalid” means “not legally binding.” Black's Law Dictionary (11th ed. 2019). Whether the contract is of no legal effect or is not legally binding, it is unenforceable. As we must apply the plain meaning of a statute, the Legislature has precluded the enforcement of an AOB which does not include the mandatory statutory requirements.

Air Quality, 351 So. 3d at 38.

The Fifth District has likewise declined to adopt the reasoning of SFR

Services, see Kidwell Grp., LLC v. ASI Preferred Ins. Corp., 351 So. 3d 1176

(Fla. 5th DCA 2022), and held that the insurer has standing to challenge the

10 assignment pursuant to section 627.7152, and that the phrase “invalid and

unenforceable” as used in this statute, does not mean voidable. We agree,

and conclude that Total Care’s assignment is precisely what the plain

language of the statute says it is: “invalid and unenforceable,” and Citizens

has standing to challenge the assignment as such. Given that the statute is

unambiguous, and that the assignment agreement, on its face, fails to

comply with section 627.7152(2)(a)4., the assignment is invalid and

unenforceable, and the trial court properly dismissed the complaint with

prejudice.

CONCLUSION

We adopt the rationale and holding of the Fourth District in Air Quality

and the Fifth District in Kidwell. The failure to comply with section

627.7152(2)(a)4 rendered the assignment agreement “invalid and

unenforceable” under section 627.7152(2)(d), and subject to challenge by

Citizens, the insurer. The trial court properly dismissed Total Care’s

complaint with prejudice as its breach of contract action was premised upon

a statutorily invalid and unenforceable assignment of benefits agreement.

Affirmed.