Insurance — Homeowners — Post-loss assignment of benefits — Trial court erred in finding that insured was precluded from assigning benefits of homeowners policy to emergency water mitigation company without consent of insurer

Insurance
— Homeowners — Post-loss assignment of benefits — Trial court erred in
finding that insured was precluded from assigning benefits of homeowners policy
to emergency water mitigation company without consent of insurer — Language of
policy merely prohibited insured’s unilateral assignment of the entire policy,
not a financial benefit derived from the policy — Florida law prohibits an
insurer from restricting an insured’s unilateral post-loss assignment of a
benefit derived from policy

BIOSCIENCE WEST, INC., a/a/o Elaine Gattus, Appellant, v.
GULFSTREAM PROPERTY AND CASUALTY INSURANCE CO., Appellee. 2nd District. Case
No. 2D14-3946. Opinion filed February 5, 2016. Appeal from the Circuit Court
for Polk County; Wayne M. Durden, Judge. Counsel: Susan W. Fox of Fox &
Loquasto, P.A., Orlando; and T.J. Monaghan of Cohen Battisti, Winter Park, for
Appellant. Andrew A. Labbe of Groelle & Salmon, P.A., Tampa, for Appellee.

(BADALAMENTI, Judge.) Appellant Bioscience West, Inc.,
(“Bioscience”) appeals a final order granting summary judgment to Appellee
Gulfstream Property and Casualty Insurance Company (“Gulfstream”). The circuit
court held that Gulfstream’s insured, Elaine Gattus, was precluded from
assigning the benefits of her homeowner’s insurance to Bioscience, an emergency
water mitigation company, without first receiving Gulfstream’s consent. After
de novo review and oral argument, we reverse. We hold that: (1) the plain
language of the insurance policy merely prohibited the insured’s unilateral
assignment of the entire policy, not a financial benefit derived from that
policy; and (2) Florida law prohibits an insurer from restricting an insured’s
unilateral post-loss assignment of a benefit derived from that policy.

Ms. Gattus purchased homeowner’s insurance from Gulfstream,
a property and casualty company. The insurance policy contained a provision
limiting the assignment “of this policy” without Gulfstream’s written consent.

Ms. Gattus’s home subsequently suffered water damage. She
hired Bioscience to perform “emergency water removal and construction services”
on her home. In exchange for Bioscience’s services, Ms. Gattus executed a
document entitled, “Assignment of Insurance Benefits,” authorizing Bioscience
to directly bill, and receive payment from, Gulfstream for its mitigation
services for any “benefits or proceeds to [Ms. Gattus’s] property” as follows:

I
hereby assign any and all insurance rights, benefits, and proceeds pertaining
to services provided by BIOSCIENCE WEST INC. under the above referenced policy
to BIOSCIENCE WEST, INC. I hereby authorize direct payment of any benefits or
proceeds to my property . . ., as consideration for any repairs made by
BIOSCIENCE WEST, INC.

Ms. Gattus subsequently filed an insurance claim with
Gulfstream. Gulfstream thereafter denied Ms. Gattus’s claim, concluding that
the claimed damages were not covered by the policy. Bioscience, as an assignee
of the right to recover a benefit under Ms. Gattus’s home insurance policy,
filed a breach of contract suit against Gulfstream based on Gulfstream’s denial
of insurance coverage. Gulfstream moved for summary judgment, which the circuit
court granted. The circuit court reasoned that Florida law and the terms set
forth in the insurance policy prohibited the assignment of benefits “without
the consent of the insurer,” which Ms. Gattus had never received from
Gulfstream. Next, the circuit court reasoned that any “assignment improperly
purports to transfer the right or privilege to adjust the claim to Plaintiff.”

We review de novo both an appeal of a summary judgment order
and an interpretation of an insurance policy. Jyurovat v. Universal Prop.
& Cas. Ins. Co., 84 So. 3d 1238, 1241 (Fla. 2d DCA 2012). “In
interpreting an insurance contract, we are bound by the plain meaning of the
contract’s text.” State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d
566, 569 (Fla. 2011). We “may consult references” such as dictionaries to
discern the plain meaning of an insurance policy’s language. Garcia v. Fed.
Ins. Co., 969 So. 2d 288, 292 (Fla. 2007). “If the language used in an
insurance policy is plain and unambiguous, a court must interpret the policy in
accordance with the plain meaning of the language used so as to give effect to
the policy as it was written.” Menendez, 70 So. 3d. at 569-70 (quoting Travelers
Indem. Co. v. PCR Inc., 889 So. 2d 779, 785 (Fla. 2004)). We construe an
insurance contract as a whole, “endeavoring to give every provision its full
meaning and operative effect.” Fla. Peninsula Ins. Co. v. Cespedes, 161
So. 3d 581, 584 (Fla. 2d DCA 2014) (quoting Washington Nat’l Ins. Corp. v.
Ruderman, 117 So. 3d 943, 948 (Fla. 2013)).

“All contractual rights are assignable unless the contract
prohibits assignment, the contract involves obligations of a personal nature,
or public policy dictates against assignment.” One Call Prop. Servs. Inc. v.
Sec. First Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015) (quoting Kohl
v. Blue Cross & Blue Shield of Fla., Inc., 988 So.2d 654, 658 (Fla. 4th
DCA 2008)). “Once an assignment has been made, ‘the assignor no longer has a
right to enforce the interest because the assignee has obtained all the rights
to the thing assigned.’ ” Id. at 752 (quoting Cont’l Cas. Co. v. Ryan
Inc. E., 974 So. 2d 368, 376 (Fla. 2008)).

Bioscience argues that the insurance policy’s plain language
merely prohibits an insured’s assignment of the entire policy without Gulfstream’s
consent, but that it does not an insured’s unilateral assignment of a benefit
derived from the policy. We agree. The Assignment provision of the insurance
policy states: “Assignment. Assignment of this policy will not be
valid unless we give our written consent.” (Bold in original, underline
emphasis added).

Assignment is defined as “a transfer of rights
or property.” Assignment, Black’s Law Dictionary (9th ed. 2009). Indeed,
our supreme court has explained that an assignment generally refers to “a voluntary
act of transferring an interest.” Ryan Inc. E., 974 So. 2d at 376
(quoting DeCespedes v. Prudence Mut. Cas. Co., 193 So. 2d 224, 227 (Fla.
3d DCA 1966)). An assignment, then, is defined as a voluntary act of
transferring a right or an interest.

Having established the meaning of “assignment,” we now turn
to deriving the plain meaning of the remainder of the phrase “assignment of
this policy.” In ordinary parlance, one would use the phrase “assignment of this
policy” to refer to the entire policy, not something less than the entire
policy, such as assignment of the financial proceeds derived from a benefit of
the policy. See Sable Cove Condo. Ass’n v. Owners Ins. Co.,
14-CV-00912-MJW, 2014 WL 4398668, at *3 (D. Colo. Sept. 5, 2014). Our
interpretation of the insurance policy’s clear and unambiguous language yields
the conclusion that Ms. Gattus was contractually prohibited from transferring
her interest in the entire policy to Bioscience without first receiving
Gulfstream’s permission.

Gulfstream does not and cannot argue that the entire policy
was unilaterally transferred from Ms. Gattus to Bioscience, which would have
been void under the language of the policy’s anti-assignment clause. Instead,
it is clear that Ms. Gattus merely assigned to Bioscience the “insurance
rights, benefits, and proceeds pertaining to services provided by” the
policy in consideration for Bioscience’s emergency mitigation services and
authorization to directly bill and to be directly paid by Gulfstream. (Emphasis
added). Stated differently, it was a post-loss assignment of a benefit under
the policy to Bioscience, namely a right to seek payment for the mitigation
services it rendered under the policy, not an assignment of “this policy”
issued by Gulfstream to Bioscience. See Peck v. Pub. Serv. Mut. Ins.
Co., 114 F. Supp. 2d 51, 56 (D. Conn. 2000) (“An assignment before a loss
involves a transfer of a contractual relationship, whereas an assignment after
a loss is the transfer of a right to a money claim.” (citing 3 Couch on
Insurance § 35.7 (3d ed. 1999))).

A review of the “loss-payment” provision provides support
for our interpretation that the “Assignment” provision of the insurance policy
was not intended to apply to assignments of benefits derived from the policy
but instead to assignments of the entire policy. See Cespedes,
161 So. 3d at 584 (noting construction of an insurance contract as a whole).
Specifically, an examination of the loss-payment provision demonstrates that
Gulfstream contemplated the need to pay third parties who were “legally
entitled” as follows: “[Gulfstream] will pay you unless some other person .
. . is legally entitled to receive payment.” (Emphasis added). In sum,
Gulfstream anticipated the need to pay those “legally entitled to receive
payment” under the policy, which, pursuant to Ms. Gattus’s “Assignment of
Insurance Benefits” agreement with Bioscience, entitled Bioscience to receive
any payments due under the policy. Thus, there is no contractual language
restricting the post-loss assignment of benefits under “this policy” without
Gulfstream’s consent.

Gulfstream argues that the assignment of benefits to
Bioscience violates section 626.854(16), Florida Statutes (2012), a public
adjusting statute. Specifically, Gulfstream contends that the assignment to
Bioscience, a mitigation contractor, impermissibly adjusted the insurance claim
here, which is contrary to that statute’s mandate. First, there is no record
evidence that Bioscience adjusted Ms. Gattus’s insurance claim for Gulfstream.
The record before us demonstrates that Bioscience provided emergency, post-loss
water removal services to Ms. Gattus’s home at her request. It did not
determine the amount due under the policy.

Even more, the text of section 626.854(16) expressly permits
a contractor, like Bioscience, to “discuss or explain a bid for construction or
repair of covered property with the residential property owner who has suffered
loss or damage covered by a property insurance policy” if that contractor “is
doing so for the usual and customary fees applicable to the work to be
performed as stated in the contract between the contractor and the insured.” A
review of the record reveals that Bioscience appropriately discussed the water
loss repair with Ms. Gattus and was retained to make those repairs. We thus
reject Gulfstream’s argument that assignment of benefits contravenes section
626.854(16) under the facts and circumstances of this case.

Gulfstream further contends that the assignment of benefits
to Bioscience violates section 627.405, Florida Statutes (2012), because
Bioscience, an assignee, does not have an “insurable interest” in “the things
at the time of the loss.” Section 627.405(1) states as follows: “No contract of
insurance of property or of any interest in property or arising from property
shall be enforceable as to the insurance except for the benefit of persons
having an insurable interest in the things insured as at the time of the loss.”
It is true that Bioscience did not have an insurable interest at the time of
the loss. Ms. Gattus, however, did have an insurable interest at the time of
the loss. Ms. Gattus, the insured/assignor, then assigned her vested insurable
interest by the post-loss execution of the assignment of benefits to
Bioscience, permitting Bioscience to step into Ms. Gattus’s shoes. See United
Water Restoration Grp., Inc. . v. State Farm Ins. Co., 173 So. 3d 1025,
1027 (Fla. 1st DCA 2015) (“The assignee stands in the shoes of the assignor and
is able to maintain suit in its own name as the real party in interest, ‘that
is the person in whom rests by substantive law, the claim to be enforced.’ ”
(quoting Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005)));
Accident Cleaners, Inc. v. Universal Ins. Co., 40 Fla. L. Weekly D862,
D863 (Fla. 5thDCA Apr. 10, 2015) (“We therefore construe section 627.405 to
require the property owner who holds the policy to have an insurable interest
at the time of loss. The property owner’s insurable interest is imputed to the
post-loss assignee.”). This is because the right to insurance benefits
generally matures as soon as the loss materializes. Cf. Williams v.
Auto Owners Ins. Co., 779 So. 2d 563, 565 (Fla. 2d DCA 2001) (quoting Counihan
v. Allstate Ins. Co., 25 F.3d 109, 113 (2d Cir. 1994)). Furthermore, our
court has recently noted that the “loss-payment provision of the policy did not
render the suit premature; indeed, that provision expressly contemplated that
there might be a final judgment — presumably stemming from a lawsuit — before
payment was due.” Curtis v. Tower Hill Prime Ins. Co., 154 So. 3d 1193,
1196 (Fla. 2d DCA 2015). As such, we reject Gulfstream’s interpretation of
section 627.405 as well.

Even if an insurance policy contained a specific, articulate
provision precluding an insured’s post-loss assignments of benefits without the
insurer’s consent, Florida case law yields deep-rooted support for the
conclusion that post-loss assignments do not require an insurer’s
consent.1 See One Call Prop. Servs.
Inc., 165 So. 3d at 755 (“Even when an insurance policy contains a
provision barring assignment of the policy, an insured may assign a post-loss
claim.”). Nearly 100 years ago, the Florida Supreme Court recognized that
provisions in an insurance policy requiring consent to assignment of that
policy do not apply to assignments after a loss. W. Fla. Grocery Co. v.
Teutonia Fire Ins. Co., 77 So. 209, 210-11 (Fla. 1917) (“The policy was
assigned after loss, and it is a well-settled rule that the provision in a
policy relative to the consent of the insurer to the transfer of an interest
therein does not apply to an assignment after loss.”). This principle was
reaffirmed in 1998, when our supreme court explained that “an insured may
assign insurance proceeds to a third party after a loss, even without the
consent of the insurer.” Lexington Ins. Co. v. Simkins Indus., Inc., 704
So. 2d 1384, 1386 n.3. (Fla. 1998).

As the First District recently observed, “[o]n this point we
find an unbroken string of Florida cases over the past century holding that
policyholders have the right to assign such [post-loss] claims without insurer
consent.” Sec. First Ins. Co. v. State, Office of Ins. Regulation, 40
Fla. L. Weekly D1449, D1449 (Fla. 1st DCA June 22, 2015). We agree and hold
that post-loss insurance claims are freely assignable without the consent of
the insurer. Id. (holding that post-loss insurance claims are assignable
without the consent of the insurer); One Call Prop. Servs. Inc., 165 So.
3d at 755 (same); Accident Cleaners, Inc., 40 Fla. L. Weekly at D863
(“Dating back to 1917, the Florida Supreme Court recognized that provisions in
insurance contracts requiring consent to assignment of the policy do not apply
to assignment after loss.”); Citizens Prop. Ins. Corp. v. Ifergane, 114
So. 3d 190, 195 (Fla. 3d DCA 2012) (“Post-loss insurance claims are freely
assignable without the consent of the insurer.”).

Gulfstream’s policy concern that post-loss assignments may
allow subcontractors, like Bioscience, to influence the adjustment process is
misplaced. First, any such influence obviously did not prevent Gulfstream from
denying Ms. Gattus coverage, an option available to any insurer if done in good
faith. Second, it is imprudent to place insured parties in the untenable
position of waiting for the insurance company to assess damages any time a loss
occurs. Repairing a home after an unexpected loss event is often a
time-sensitive procedure. An insured simply cannot afford to wait for an
insurance claim to be adjusted to address that loss, and insurance benefits
represent the most ready means of paying for post-loss emergency repairs.

We are mindful that there are competing policy
considerations here. These policy considerations are for the legislature to
decide, not our court. We therefore reverse the order granting summary judgment
in favor of Gulfstream and remand for further proceedings.

Reversed; remanded for proceedings consistent with this
opinion. (NORTHCUTT and KHOUZAM, JJ., Concur.)

__________________

1Florida stands apart from a minority
of jurisdictions that permit an insurer to contractually restrict its insured’s
post-loss assignment without the insurer’s consent. See, e.g., In re
Katrina Canal Breaches Litig., 63 So. 3d 955, 962-63 (La. 2011).

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