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Fla. L. Weekly D2033bTop of Form

Insurance
— Homeowners — Res judicata — Insured’s action against insurer to recover
damages for plumbing leak is barred by res judicata where court had entered
summary judgment for insurer in a prior suit for the same damages on the basis
that insured lacked standing based on insured’s assignment of her insurance
benefits to a remediation company

LEONA
CHARLES, Appellant, vs. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd
District. Case No. 3D15-2251. L.T. Case No. 14-14893. Opinion filed August 31,
2016. An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,
Judge. Counsel: Cudlipp & Cudlipp, P.A., and Kevin E. Cudlipp and Michael
P. Cudlipp, for appellant. Hinshaw & Culbertson LLP, and Maureen G. Pearcy,
for appellee.

(Before
WELLS, ROTHENBERG, and LAGOA, JJ.)

(ROTHENBERG,
J.) Leona Charles (“Charles”) appeals the trial court’s final order entering
summary judgment1 in favor of Citizens Property
Insurance Corporation (“Citizens”). Because we conclude that the instant
lawsuit is barred by the doctrine of res judicata, we affirm. See ICC
Chem. Corp. v. Freeman, 640 So. 2d 92, 93 (Fla. 3d DCA 1994) (holding that
“[r]es judicata applies to all matters actually raised and determined as well
as to all other matters which could properly have been raised and determined in
the prior action, whether they were or not.”).

The
record reflects that Charles initially sued Citizens on March 25, 2013 based
upon Citizens’s failure to pay her supplemental request for damages, which were
incurred due to a plumbing leak in May 2012. In the 2013 lawsuit, Citizens
moved for summary judgment on its asserted affirmative defense of lack of
standing based on Charles’s assignment of her insurance benefits to a
remediation company, Fastech Restoration, Inc., on May 24, 2012.

At
the summary judgment hearing conducted on March 31, 2014, Charles claimed that
she and Fastech executed an amended assignment in early February 2013. The
trial court, however, declined to accept the document at the hearing because
Charles had neither replied to Citizens’s standing defense nor provided the
purported assignment to Citizens and the authenticity of the purported
assignment was in question. However, the trial court granted Charles leave to
amend her response to Citizens’s affirmative defenses to plead the amended
assignment and instructed Charles that she could seek leave to amend or that
she could appeal the trial court’s ruling. Rather than amending her pleadings,
Charles filed a second lawsuit for the same water loss on June 9, 2014, seeking
the same recovery and alleging the same breach by Citizens as pled in the 2013
law suit.

Both
suits seek to recover the same damages from the May 2012 water loss; allege
that Citizens breached the contract by failing to pay the entire loss claimed;
involve the same parties; and sued Citizens in its capacity as the insurer of
Charles’s homeowner’s policy. Thus, all of the elements of res judicata have
been met. See ICC Chem., 640 So. 2d at 93 (listing the four
elements as: (1) identity of thing sued for; (2) identity of the cause of
action; (3) identity of the persons and parties to the actions, and (4)
identity of the quality or capacity of the person for or against whom the claim
is made). Because the issue of Charles’s standing was raised by Citizens in the
prior lawsuit; not defended by Charles despite the trial court’s invitation to
her to amend her pleadings to assert the purported amended assignment; and
Charles’s standing was decided adversely to Charles in the prior lawsuit, the
trial court correctly concluded that the present lawsuit is barred by res
judicata.

Affirmed.

__________________

1The
order granting summary judgment was stamped as a final order by the trial court
and has already been determined by our Court to be a final appealable order.

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