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Filing # 100033294 E-Filed 12/09/2019 05:14:51 PM
IN THE CIRCUIT COURT OF THE 20th JUDICIAL CIRCUIT, IN AND FOR
COLLIER COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASENO.: 11-2019-CA-002007-0001-XX
SFR SERVICES LLC A/A/O
PAUL AND LOIS CHARLEBOIS,
Plaintiff,
vs.
FIRST PROTECTIVE INSURANCE COMPANY
DBA FRONTLINE INSURANCE,
Defendant.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS AND COMPEL APPRAISAL
AND STAY AND SUPPORTING MEMORANDUM OF LAW
COMES NOW Plaintiff, SFR SERVICES LLC A/A/O PAUL AND LOIS CHARLEBOIS
(‘Plaintiff’), by and through the undersigned counsel, files this Plaintiff's Response to Defendant
FIRST PROTECTIVE INSURANCE COMPANY DBA FRONTLINE INSURANCE
(“Defendant”) Motion to Dismiss and Compel Appraisal and Stay and Supporting Memorandum
of Law (“the Motion”), and as grounds therefore, states as follows:
1. The claim at issue comes before this Court as a dispute over the amount of insurance
benefits due to covered peril that occurred on December 20", 2017 occurring at the
property of the PAUL AND LOUIS CHARLEBOIS (“Insureds”) located at
191 EDGEMERE WAY S, NAPLES, FL 34105 (the “property”).
2. Itis undisputed that Defendant provided insurance for the property and that the insurance
policy was in full force and effect on the date of loss.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 12/10/2019 02:11:41 PM. Defendant’s acknowledged receipt of the claim and assigned it claim number
01-17532.
As a result of a loss to the property caused by a covered peril, the insured procured the
consulting, build-back, and restoration services of Plaintiff and executed an assignment
of benefits (“AOB”) in favor of the Plaintiff in exchange for the services provided. The
AOB was executed on January 24th, 2019.
. Prior to this suit being filed, Plaintiff submitted an estimate in the amount of $171,246.22
for consulting, build-back, and restoration services.
. On October 14th, 2019, Defendant filed its Motion to Dismiss and Compel Appraisal and
Stay and Supporting Memorandum of Law.
. Defendant has filed a Motion to Compel Appraisal and Plaintiff responds as follows:
a. Defendant’s policy also contains a Mediation clause which is a less costly and
equally efficient means of alternative dispute resolution. Defendant has failed
to properly offer the choice of mediation to Plaintiff as a means of resolving the
instant matter as required under Florida Statute 627.7015.
b. Defendant has taken the position that Plaintiff is not entitled to mediation as it
is not the insured under the policy however, Defendant has taken the
inconsistent position of attempting enforce upon the Plaintiff a duty to arbitrate
under the policy that per the terms and definitions of the policy is a duty only
required of the insured, not an assignee.
c. Mediation is preferable to appraisal as a matter of public policy, judicial
economy, fairness and costs to Plaintiff.d. Defendant has waived its right to appraisal by failing to notify an insured of
his/her right to mediation under Fla. Statute § 627.7015.
I. Defendant Has Waived The Right to Compel Appraisal
8. An insurance carrier waives its right to appraisal if it fails to notify an insured of his/her
right to mediation under Fla. Stat.§ 627.7015. See Fla. Stat.§ 627.7015 "At the time a first-party
claim within the scope of this section is filed by the policyholder, the insurer shall notify the
policyholder of its right to participate in the mediation program under this section."); Universal
Prop. & Cas. Ins. Co. v. Colosimo, 61 So. 3d 1241 (Fla. 3d DCA 2011); Gassman vy. State Farm
Fla. Ins. Co., 77 So. 3d 210 (Fla. 4th DCA 2011); Fla. Ins. Guar. Ass'n v. Shadow Wood Condo.
Ass'n, 26 So. 3d 610 (Fla. 4th DCA 2009); Subirats v. Fid. Nat’/ Prop., 106 So. 3d 997 (Fla. 3d
DCA 2013). Defendant has not provided any record evidence to show that it complied with the
mediation notice requirement under Fla. Stat.§ 627.7015.
Il. _—_ Plaintiff/Assignee Has the Right to Invoke Non-Binding Mediation at
Defendant’s Costs
9. While Defendant seeks to compel appraisal, the Fla. Stat. § 627.7015 provides for a
Plaintiff's right to mediation. The court is well aware that mediation is a less costly and equally
effective method of alternative dispute resolution. The mediation clause in the Policy provides:
SECTION I - CONDITIONS
6. Appraisal is deleted and replaced by the following:
Mediation or Appraisal. If you and we fail to agree on the settlement
regarding the loss, either may:
“Demand a mediation of the loss in accordance with the rules established by
the Florida Department of Financial Services. The loss amount must be $500
or more, prior to application of the deductible; or there must be a difference
of $500 or more between the loss settlement amount we offer and the loss
settlement amount that you request. The settlement in the course of themediation is binding only if both parties agree, in writing, on a settlement
and you have not rescinded the settlement within 3 business days after
reaching settlement. You may not rescind the settlement after cashing or
depositing the settlement check or draft we provided to you. We will pay
the cost of conducting any mediation conference except when you fail to
appear at a conference. That conference will then be rescheduled upon
your payment of the mediator’s fee for that rescheduled conference.
However, if we fail to appear at a mediation conference without good
cause, we will pay the actual cash expenses you incurred while attending
the conference and also pay the mediator’s fee for that rescheduled
conference.”
See a non-certified copy of the policy, which is hereby incorporated and attached as Exhibit A.
(See Page 6 of 13 in Section entitled Special Provisions — Florida). [Emphasis added.]
10. The Policy via the incorporation of the mediation statute expressly provides as an
option for dispute resolution to be invoked by either the insured or the insurer. Plaintiff by right of
assignment, acknowledged and accepted by Defendant, is within its rights, and invoked its right to
mediation. At the mediation, Defendant took the position that this claim for payment by third-party
assignee is not the proper matter for referral by DFS to Residential Mediation Program. Certainly,
mediation is preferable to a more cost prohibitive method of appraisal as a means of attempting to
resolve this matter.
Ill. If Defendant’s Position is that Plaintiff cannot Exercise its Right to Mediation
and Must Participate in Appraisal then Defendant’s Position as to Plaintiff's
Rights to Arbitration and Mediation are Inconsistent
11. Florida case law is clear that assignments confer the same rights to a contract as an
assignor would have. The law is well established that an unqualified assignment transfers to the
assignee all the interests and rights of the assignor in and to the thing assigned. Moreover, it is
beyond dispute that “the assignee steps into the shoes of the assignor and is subject to all equitiesand defenses that could have been asserted against the assignor had the assignment not been made.”
See Dependable Ins. Co. v. Landers, 421 So.2d 175, 179 (Fla. 5th DCA 1982).
12. An assignment has been defined as "a transfer or setting over of property, or of some
right or interest therein, from one person to another." Black's Law Dictionary 128 (8th ed.2004)
(quoting Alexander M. Burrill, 4 Treatise on the Law and Practice of Voluntary Assignments for
the Benefit of Creditors § 1, at 1 (James Avery Webb ed., 6th ed. 1894)). Essentially, it is the
"voluntary act of transferring an interest”. DeCespedes v. Prudence Mut. Cas. Co., 193 So. 2d
224, 227 (Fla. 3d DCA 1966); accord Fla. Power & Light Co. v. Road Rock, Inc., 920 So.2d 201,
204 (Fla. 4th DCA 2006); 3A Fla. Jur.2d Assignments § 1 (2007); 6 Am. Jur.2d Assignments § 1
(2007).
13. Assignment law is a long-standing legal doctrine recognized under Florida law, which
has been utilized by Florida citizens for over one hundred years. See Nationwide Mut. Fire Ins.
Co. v. Pinnacle Med., 753 So.2d 55, 57 (Fla. 2000) ("The right to sue for breach of contract to
enforce assigned rights predates the Florida Constitution.") See also Selfridge v. Allstate Ins. Co.,
219 So.2d 127, 128 (Fla. 4th DCA 1969) ("The assignability of a cause of action is the rule rather
than the exception."); West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209,
210-11(Fla. 1917)(holding that a provision against assignment of an insurance policy does not bar
an insured's assignment of an after-loss claim); Accident Cleaners, Inc. v. Universal Ins. Co. 186
So. 3d 1 (Fla. 5th DCA) ("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."); Shaw v. State Farm Fire and Casualty Company, Case No. 5D07-3136
(Fla. 5th DCA 2010) ("The ability to assign contractual rights, including the right to payment, is
an important commercial mechanism to facilitate transactions and to secure the payment of
obligations ..."); One Call Pto mediation, the insurance policy in question provides that the
5Insured or the Defendant may request mediation with the Florida Department of Financial
Services to resolve a dispute concerning a claim. rop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749
(Fla. 4th DCA 2015) ("Even when an insurance policy contains a provision barring assignment of
the policy, an insured may assign a post-loss claim."); Security First Ins. Co. v. State of Florida
Office of Insurance Regulation, 177 So.3d 627 (Fla. 1st DCA 2015) ("We find an unbroken string
of Florida cases over the past century holding that policyholders have the right to assign such
claims without insurer consent.").
14. Under Florida law, an anti-assignment clause written into an insurance policy is not a
bar to an insured's assignment of a post-loss claim. See West Fla. Grocery Co. v. Teutonia Fire
Ins. Co., 14 Fla. 220, 77 So. 209, 210-11(Fla. 1917) ("It is a well-settled rule that anti-assignment
provisions do not apply to an assignment after loss."); Citizens Prop. Ins. Corp. v. Ifergane, 114
So.3d 190 (Fla. 3d DCA 2012) ("Post-loss insurance claims are freely assignable without the
consent of the insurer."); Continental Cas. Co. v. Ryan Inc. Eastern, 914 So.2d 368 (Fla. 2008);
Better Constr. v. National Union Fire Ins. Co., 651 So. 2d 141 (Fla. 3d DCA 1995). In Better
Const., the Third District Court of Appeal held that according to Florida case law and Fla. Stat. §
627.422, "neither the no-assignment clause nor the no-action clause precludes" an assignee of an
after-loss claim from stating a cause of action against an insurance carrier. See also Miami
Children's Hosp., Inc. v. Malakoff, 165 F. Supp. 718 (S.D. Fla. 1991) (holding that, under ERISA,
an insured may assign his rights to benefits to a medical provider); Hartford Ins. Co. of Southeast
vy. St. Mary's Hosp., Inc., 771 So. 2d 1210, 1212 (Fla. 4th DCA 2000) ("Courts have recognized
that medical service providers can assert claims for PIP benefits against insurers when an insured
has assigned them the right to the benefits.") The effect of such an assignment is to place the
insured's cause of action for such benefits in the provider. See Oglesby v. State Farm Mut. Auto.
Ins. Co., 781 So. 2d 469,470 (Fla. Sth DCA 2001)("Only the insured or the medical provider 'owns'
6the cause of action against the insurer at any one time."); Accident Cleaners, Inc. v. Universal Ins.
Co. 186 So. 3d 1 (Fla. Sth DCA) ("In section 627.405, the Legislature did not state that it was
displacing well-settled common law of (1) the free assignability of contractual rights to recover or
(2) the inability for insurers to restrict post-loss assignments."); ASAP Restoration & Constr., Inc.
vy. Tower Hill Signature Ins. Co., 165 So. 3d 736 (Fla. 4th DCA 2015) (holding that a clause
precluding the assignment of post-loss benefits without the consent of the insurer was invalid);
Emergency Servs. 24, Inc. y. United Prop. & Cas. Ins. Co., 165 So. 3d 736 (Fla. 4th DCA 2015)
("Because the trial court erred in finding that the anti-assignment clause and the loss payment
provision precluded the assignment, we reverse and remand for further proceedings."); One Call
Prop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. 4th DCA 2015); Security First Ins. Co. v.
State of Florida Office of Insurance Regulation, 177 So.3d 627 (Fla. Ist DCA 2015) (noting that
a restriction on the assignment of post-loss rights and benefits in an insurance policy would be
misleading because it would cause a policyholder to believe that the validity of such assignment
was contingent on the written consent of the insurer).
15. Pursuant to the Florida Supreme Court in Lexington Ins. Co. v. Simldns Industries, Inc.,
where an insurance policy prohibits assignment, it is essential to look at whether the assignment
occurred before or after the loss. While an insurer may prohibit or limit assignment of policy rights
or benefits which materially affect the risk to the insurer such as an assignment of the entire policy,
an insurer generally may not prohibit the assignment of claim rights for a loss that has already
occurred. Furthermore, even if the policy contains a prohibition against assignment, the insurer
generally may not prohibit the assignment of claims rights following a loss. Lexington Ins. Co. v.
Simldns Industries, 704 So.2d 1384 (Fla. 1998). See also NextGen Restoration, Inc. v. Citizens
Prop. Ins. Co., 126 So.3d 1255, 1256 (Fla. 2d DCA 2013) (reversing an order on a motion to
dismiss alleging that the policy language precluded assignment of post-loss benefits due under an
7insurance policy); Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co., 18580. 3d 638 (Fla.
2d DCA 2016) (noting that an assignment before a loss involves a transfer of a contractual
relationship; however, an assignment after a loss is the transfer of a right to a money claim); One
Call Prop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. 4th DCA 2015) ("Even when an
insurance policy contains a provision barring assignment of the policy, an insured may assign a
post-loss claim.")
16. Once transferred, the assignor no longer has a right to enforce the interest because the
assignee has obtained all "rights to the thing assigned." Price v. RLI Ins. Co., 914 So.2d 1010,
1013-14 (Fla. 5th DCA 2005) (quoting Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr.
Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2003)). A claim on an insurance policy is a chose in action
and is assignable as such.” United Cos. Life Ins. Co. v. State Farm and Fire Cas. Co., 477 So.2d
645, 646 (Fla. Ist DCA 1985). As such, under established Florida law, Plaintiff, as the assignee to
the policy, has all the rights to avail itself of the policy provisions, including the right to mediation,
as though it were the insured. “A claim on an insurance policy is a chose in action and is assignable
as such.” United Cos. Life Ins. Co. v. State Farm and Fire Cas. Co., 477 So.2d 645.
IV. It is Good Public Policy that Assignees May also Avail Themselves of the Right
to Mediation Under Florida Statute § 627.7105.
17. If Florida Statute § 627.7105 were to prohibit assignees from the right to mediate, this
prohibition would be in direct controversy with the long-established Florida law regarding the core
purpose of assignments, which is to place the assignee in possession of the same rights as held by
the assignor. To adhere to the Defendant’s position would be to espouse a flagrant disregard for
one of the core principles of Florida contract law that pre-dates the aforementioned statute itself.
18. The Florida Legislature enacted Fla. Stat. § 627.7015 to combat the high cost of the
appraisal process and to level the playing field for Florida consumers. It recognized that insurancecarriers could potentially misuse the appraisal process to discourage Florida consumers from
seeking just compensation for covered losses. In sum, the Florida Legislature identified a problem
in the potential misuse of the appraisal process and sought to remedy the problem with Fla. Stat.§
627.7015. As a result, Fla. Stat.§ 627.7015 created a mediation program to serve as an alternative
to the costly and adversarial appraisal process. See Fla. Stat.§ 627.7015.; Fla. Ins. Guar. Ass'n v.
Devon Neighborhood Ass'n, 67 So. 3d 187 (Fla. 2011); Universal Prop. & Cas. Ins. Co. v.
Colosimo, 61 So. 3d 1241 (Fla. 3d DCA 2011).
19. Fla. Stat. § 627. 7015 specifically provides that "[m]ediation under this section is also
available to litigants referred to the department by a county court or circuit court." See Fla. Stat.§
627.7015. As such, this Court has authority to refer this matter to mediation. Due to the high cost
of the appraisal process, mediation under Fla. Stat.§ 627.7015 is a cost-effective option to
potentially resolve the case at hand. The insurance policy in question specifically lists mediation
or appraisal to resolve disputes. In relation to mediation, the insurance policy in question provides
that the Insured or the Defendant may request mediation with the Florida Department of Financial
Services to resolve a dispute concerning a claim.
V. Mediation is Preferable to Appraisal As a Matter of Public Policy, Judicial
Economy, Fairness and Costs to Plaintiff
20. It is in the interest of public policy, judicial economy and it is more cost beneficial to the
parties to allow for this Court to enforce the Policy’s mediation clause as opposed to the appraisal
clause because mediation is a more cost-effective way of resolving the underlying dispute. Florida
Statute § 627.7105 acknowledges that mediation is preferable and more cost effective than
appraisal as it expressly states:
“There is a particular need for an informal, nonthreatening forum for
helping parties who elect this procedure to resolve their claims disputes
because most homeowner and commercial residential insurance policiesobligate policyholders to participate in a potentially expensive and time-
consuming adversarial appraisal process before litigation. The procedure
set forth in this section is designed to bring the parties together for a
mediated claims settlement conference without any of the trappings or
drawbacks of an adversarial process. Before resorting to these
procedures, policyholders and insurers are encouraged to resolve claims as
quickly and fairly as possible. This section is available with respect to
claims under personal lines and commercial residential policies before
commencing the appraisal process, or before commencing litigation.”
[Emphasis added].
21. The appraisal process is a more expensive and time-consuming method of alternative
dispute resolution. Pursuant to the terms of the Policy, each party must pay its own appraiser,
including the costs associated with producing the estimate to be used in asserting its position. In
addition, each party must “bear the fees and expenses of the appraisal and umpire equally.”
22. The principles of equity and justice should excuse Plaintiff from having to submit to
the appraisal process as the costs of doing so can result in the expenditure of an amount in excess
of the amount claimed. See Green Tree Financial Corp-Alabama v. Randolph, 531 U.S. 79
(2000)(explaining the prohibitive cost doctrine). See Broward Ins. Recovery Cntr., LLC (a/a/o
Harry Drangsland y. Allstate Ins. Co., 25 Fla. L. Weekly Supp. 294a. (Broward County Ct. May
8, 2017)(Hon. Jennifer W. Hilal), stating:
“Courts have also considered whether appraisal provisions may be illusory
in the context of the small monetary amounts of windshield damage cases.
Broward Ins. Recovery Cntr., LLC (a/a/o Shane Bushman) v. Progressive
Select Ins. Co., 24 Fla. L. Weekly Supp. 761a (Broward County Ct. Nov. 3,
2016)(Hon. Robert W. Lee)("..the Court notes that the small amount in
dispute here compared to the costs of an appraisal renders the process
illusory for all intents and purposes. To hold otherwise would in the Court's
view, effectively close all meaningful means of redress to those who suffer
windshield damage under a progressive policy."
See also Lloyd's of Shelton Auto Glass, LLC a/a/o Jedidiah Thomas v. Progressive Select
Ins. Co., Fla. L. Weekly Supp. 2504JTHO (Hillsborough County Ct. July 26, 2017 where the
Honorable Herbert M. Berkowitz cited in footnote three (3):
10“The irony is that, in reality, there can be no 'full payment! as even an award by the
appraisers for the full amount claimed still subjects the insured to costs and expenses
that, in fact, reduces the net award to less than a full recovery.”
23. By allowing the parties to mediate, rather than forcing Plaintiff into the more costly
appraisal process, the Court would better serve and preserve the Plaintiff's underlying claim and
maintain the balance of equities. To that end, nothing in the Policy itself expressly prohibits an
assignee from availing itself of the mediation provision. This fact, combined with the fact that the
Policy does not mandate appraisal over mediation, would only seem to bolster the reasons for
denying Defendant’s Motion to Compel Appraisal.
VI. The Florida Department of Financial Services Confirms that Plaintiff, as
Assignee, Is Within Its Rights to Mediate This Case
24. Plaintiff has contacted the Florida Department of Financial Services (“DFS”), the entity
charged with overseeing the mediation of contract disputes within the state of Florida and the DFS
has expressly responded affirmatively indicating that Plaintiff, as an assignee, is within its rights
to seek mediation. Furthermore, DFS has gone so far as to advise Plaintiff of the procedure to
proceed with its request. See true and correct copy of the email response from DFS attached hereto
as Exhibit B.
VII. Defendants Are in Violation of Florida Statute § 627.7105 By Failing to
Advise the Plaintiff/Assignee of its Right to Mediate and Filing a Motion to
Compel Appraisal and Stay
25. One of the requirements under Florida Statute § 627.7105 is that the insurer advise
the policyholder, or in this matter, the assignee, of its right to participate in the mediation
program under this statutory section. Defendant has failed to provide this notice and has, in fact,
done the opposite by refusing Plaintiff's request for mediation. This Court should find that as a
11matter of law under the Policy, Plaintiff cannot be forced into appraisal by Defendant and that
mediation is the more equitable method of dispute resolution in this matter.
VIII. Defendant’s Position on the Plaintiff’s Duties and Rights Under the
Policy Are Inconsistent
26. If Defendant takes the position that Plaintiff, as an assignee, is not the first party
claimant or “insured” under the policy and therefore, is not allowed to avail itself of the mediation
provisions extended under Florida Statute § 627.7105, it must also concede that Plaintiff is not an
“insured” under the Policy is not an insured under the appraisal provision. As such, Plaintiff would
not be subject to the same duties and restrictions as the insured under the Policy. Defendant cannot
decide to hold the assignee as a named insured for some portions of the policy while at the same
time arguing that the assignee is not a named insured for other portions of the policy.
27. Should the Court believe that Plaintiff, as an assignee, is not a first party claimant or
“insured” under the policy (thus agreeing with Defendant’s position), then Plaintiff would be
required to take the alternative position that, as an assignee of the insured, it only has the right to
seek payment under the instant claim. As a non-party to the insurance contract, Plaintiff would not
be obligated under Florida law to accept or assume the duties of the insured under the subject
policy - which includes the duty to submit to appraisal.
28. Florida courts have consistently held that the term "named insured" has a restricted
meaning and does not apply to persons not specifically named in the policy. Kohly v. Royal
Indemnity Co., 190 So.2d 819 (Fla. 3d DCA 1966). The Plaintiff is not the named insured shown
in the Declarations nor is the Plaintiff the named insured's spouse. As such, based on the plain
language of the Policy, Plaintiff is not required to participate in any contractual loss appraisal
process.
1229. Defendant drafted the Policy and chose to use this limiting language that restricts the
application of the appraisal process to only the named insured. The terms of the Policy must be
construed as written and viewed in a light most favorable to the insured. Lloyd's of Shelton Auto
Glass, LLC a/a/o Jedidiah Thomas v. Progressive Select Ins. Co. Fla. L. Weekly Supp. 2504JTHO
(Hillsborough County Ct. July 26, 2017 (Hon. Herbert M. Berkowitz) citing United States Fid &
Guar. Co. v. Romay, 744 So.2d 467, 471 (Fla. 3d DCA 1999).
30. The assignment of a contract right does not entail the transfer of any duty to the
assignee, unless the assignee assents to assume the duty. See Dependable Ins. Co. v. Landers, 421
So. 2d 175, 179 (Fla. 5th DCA 1982). Assignment of a right to payment under a contract does not
eliminate the duty of compliance with contract conditions, but a third-party assignee is not liable
for performance of any duty under a contract, unless he was a party to the agreement or has become
a party by subsequent agreement. Absent such an event, which is in the nature of a novation, the
duty of performance of the conditions to the right of payment remains with the assignor.? In other
words, the assignee of a contract right owes no duty of performance to the obligor. See Shaw v.
State Farm Fire & Cas. Co., 37 So. 3d 329 (Fla. 5" DCA 2010) (hereinafter Shaw).
31. An obligor cannot unilaterally attach conditions to the obligee’s right of assignment
and cannot bind the assignee to any performance under the contract unless the assignee has
agreed..... By accepting an assignment of a right to be paid, the assignee does not obligate itself
to perform any covenant under the contract. See Shaw, 37 So. 3d at 329. In this matter, Plaintiff
has accepted the right to be paid under the terms of the Policy, but has not, in writing or by action,
accepted or agreed to be bound by the duties imposed upon the insured under the Policy. The Court
in Shaw went on to hold that “the ability to assign contractual rights, including the right to payment,
is an important commercial mechanism to facilitate transactions and to secure the payment of
obligations, but this device would be completely thwarted if the obligor could impose conditions
13on the exercise of such rights acquired through assignment. There is a reason why there is a vast
body of case law on whether a particular right is or is not assignable, but none recognizing the
obligor's right to condition payment of sums due and owing under the contract to the subsequent
performance of some contractual duty in the underlying contract.” See Shaw, 37 So. 3d at 329.
As the rule above says, the defenses available to the obligor are fixed as of the time of the
assignment, no subsequent duty on the part of the assignee arises because of the assignment. See
Id. \t should then follow that as, at the time of assignment, the appraisal clause had not been
invoked or enforced against the insured, the duty to perform under the appraisal clause did not
flow with the assignment at the time the assignment was conveyed. Plaintiff is under no obligation
to perform a duty that was not invoked against the insured at the time the assignment was conveyed
to the Plaintiff. Also, subsequent to the assignment, Plaintiff has not agreed to be bound to the
duty to submit to appraisal under the policy.
32. If Defendant’s position is that Plaintiff is not an insured then it would enforce the fact
that Plaintiff cannot be bound by the duties to perform the obligations of the insured. Plaintiff
cannot be forced into the appraisal process. Should this Court find that Plaintiff has not stepped
into shoes of the insured by virtue of the assignment and cannot avail itself of the mediation clause,
this Court should find that Plaintiff, as a possessor of the right to reimbursement by virtue of the
recognized assignment, cannot be forced into appraisal by Defendant. Thus, the only remedy
available to Plaintiff would be an action for breach of contract which is exactly what was pled in
this case.
WHEREFORE Plaintiff respectfully requests that this Court deny Defendant’s Motion
to Dismiss and Compel Appraisal and Stay and Supporting Memorandum of Law and grant any
other relief deemed just and proper.
(Certificate Follows on the Next Page)
14CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
served on December 9, 2019 via the Florida E-Filing Portal.
THE WHISLER LAW FIRM, P.A.
Attorney for Plaintiff
1909 Tyler Street, Suite 501
Hollywood, Florida 33020
Telephone: (561) 708-0513
E-Mail: service@whislerlawfirm.com
By: /s/ Joshua Whisler
JOSHUA WHISLER, ESQ.
FL Bar No. 98172
15EXHIBIT A. FP z £
ONTipa
FRONTIne HOMEOWNERS POLICY TRANSACTION DATE: 07/15/17
INSURANGIE RENEWAL DECLARATIONS DATEISSUED: 05/21/17
POLICY NUMBER
Underwritten by:
First Protective Insurance Co. Fror T
P.O.BOX 958405 FPH3-142563 715/17 TN5/18
Lake Mary, FL 32795-8405
12:01 AM Standard Time
IF YOU HAVE QUESTIONS ABOUT YOUR POLICY, PLEASE CONTACT YOUR AGENT AT 239-333-0888
TO REPORT A CLAIM, CALL 800-675-0145
INSURED: ee _[LAGENCY: TY 523-23-21342
PAUL CHARLEBOIS. NASH INSURANCE & ASSOC LLC
& LOIS CHARLEBOIS 8801 COLLEGE PARKWAY, STE 5
191 EDGEMERE WAY S FT MYERS, FL 33919
NAPLES, FL 34105-7108
Telephone: 239-262-4092 ~ ~ Telephone: 239-333-0888 ~ ~
LOCATION OF PROPERTY INSURED: _. : ~~ —
191 EDGEMERE WAY S, NAPLES, FL 34105-7108
COVERAGE IS PROVIDED WHERE LIMIT OF LIABILITY AND PREMIUM ARE SHOWN; :____ _ _
POLICY COVERAGES: =. - ~ _ _ — _—
‘SECTION! - PROPERTY
A, DWELLING
B. OTHER STRUCTURES
C. PERSONAL PROPERTY
D, LOSS OF USE
SECTION | LOSSES ARE SUBJECT TO THE FOLLOWING:
DEDUCTIBLE FOR ALL PERILS EXCEPT HURRICANE: $2,500
CALENDAR-YEAR HURRICANE DEDUCTIBLE: $7,200 (2% OF COVERAGE A)
‘SECTION II - LIABILITY
E. PERSONAL LIABILITY 300,000 $ 8
F, MEDICAL PAYMENTS TO OTHERS: 1,000 INCLUDED
“OPTIONAL COVERAGES: .— _ -__ . * :
LOSS ASSESSMENT COVERAGE s 1,000 INCLUDED
LIMITED FUNGI, WET OR DRY ROT, OR BACTERIA (PER OCCURRENCE/AGGREGATE) $ 25,000/50,000 $ 60
ORDINANCE OR LAW COVERAGE 25% OF DWELLING INCLUDED
PERSONAL PROPERTY REPLACEMENT COST LOSS SETTLEMENT $ 320
$
$
300
25
SCREEN ENCLOSURE COVERAGE -- HURRICANE DAMAGE. $ 15,000
WATER BACK-UP AND SUMP DISCHARGE OR OVERFLOW COVERAGE $ 5,000
POLICY CREDITS AND CHARGES: 2 ~~. ~~. 2.
WIND LOSS REDUCTION CREDIT ($971) — INCLUDED
EMERGENCY MANAGEMENT PREPAREDNESS AND ASSISTANCE TRUST FUND SURCHARGE $ 2
POLICY FEE 25
PREMIUM:SUMMARY: = —__—_—__*** THISIS NOTA BILL - AN INVOICE WILL BE MAILED SEPARATELY **
POLICY COVERAGES: OPTIONAL COVERAGES: POLICY CREDITS AND CHARGES: TOTAL ANNUAL PREMIUM:
$2,255 _ $705 ue $27 $2,987
The portion of your premium for Hurricane is: — $1,741 ~ _] The Non-Hurricane portion of your premium is: $1,246
FIM-DEC (01/08) INSUREDS COPY” 7 7 7 ~ PAGE 1 OF3FR INTIne
HOMEOWNERS POLICY
INSURANCE RENEWAL DECLARATIONS DATE ISSUED: 05/21/17
Underuriton by: __POLICY NUMBER POLICY PERIOD
First Protective Insurance Co, - ~ From:
P.0.BOX 958405 FPH3-142563 W517 mn 5118
Lake Mary, FL 32795-8405.
12:01 AM Standard Time
PAUL CHARLEBOIS ~ . NASH INSURANCE & ASSOC LLC
& LOIS CHARLEBOIS 8801 COLLEGE PARKWAY, STE 5
191 EDGEMERE WAY S .|) FT MYERS, FL 33919
NAPLES, FL 34105-7108
Telephone: 239-262-4092 __| Telephone: 239-333-0888
MORTGAGEE ESCROWBILLED NO
HUNTINGTON BANK
ISAOA/ATIMA
P.O, BOX 718
AMELIA, OH 45102
LOAN NUMBER : 0008889750
_RATING INFORMATION: |
FORM TYPE: HO-3 PROTECTION CLASS: 03 CONSTRUCTION TYPE: M NUMBER OF FAMILIES: 1
TERRITORY: 551 BCEG: 99 YEAR BUILT: 1988 OCCUPANCY: OWNER
USAGE: PRIMARY PROTECTIVE DEVICE CREDIT: BURGLAR ALARM: N FIRE ALARM: N SPRINKLERS: N
.FORMS AND ENDORSEMENTS TAFPLIGABLETO THIS POLICY:
Film0049(08/15) “FIM SEN(01/12) 7HOOO 03(04/91) "F1M(0033(06/07) *FIM0023(10/11) *FIM0019(09/09)
*FIM0017(12/10) *HO03 51(01/06) “HO04 96(04/91) "HO23 86(01/06) *FIM0013(12/10) *FiM0024(06/07)
*HOD4 95(11/92) *+FIM0039(10/11) *FIM0042(06/13)
AUTHORIZED SIGNATURE:. ane Co Cy DATE SIGNED: __ 5/21/17
FRONTLINE WEBSITE: www.frontlineinsurance.com
FIM-DEC (01/08) INSUREDS COPY PAGE 2 OF 3ey AN IRE ops os
FRONTIiine
HOMEOWNERS POLICY
INSURANCE RENEWAL DECLARATIONS DATE ISSUED: 05/21/17
Underwritten by:
First Protective Insurance Co: =
P.0.BOX 958405
Lake Mary, FL 32795-8405 FPH3-142563 TNSIA7 7/15/18
12:01 AM Standard Time
INSURED? et
PAUL CHARLEBOIS
& LOIS CHARLEBOIS . 8801 COLLEGE PARKWAY, STE 5
191 EDGEMERE WAY S FT MYERS, FL 33919
NAPLES, FL 34105-7108
Telephone: 239-262-4092
LOCATION OF. PROPERTY INSURED?
191 EDGEMERE WAY S, NAPLES,
THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR
HURRICANE LOSSES, WHICH MAY RESULT IN HIGH
OUT-OF-POCKET EXPENSES TO YOU.
LAW AND ORDINANCE COVERAGE IS AN IMPORTANT
COVERAGE THAT YOU MAY WISH TO PURCHASE. YOU MAY
ALSO NEED TO CONSIDER THE PURCHASE OF FLOOD
INSURANCE FROM THE NATIONAL FLOOD INSURANCE
PROGRAM. WITHOUT THIS COVERAGE, YOU MAY HAVE
UNCOVERED LOSSES. PLEASE DISCUSS THESE COVERAGES
WITH YOUR INSURANCE AGENT.
YOUR POLICY PROVIDES 25% OF COVERAGE A FOR LAW AND
ORDINANCE COVERAGE AT NO ADDITIONAL COST. YOU MAY
INCREASE THIS LIMIT TO 50% OF YOUR COVERAGE A
AMOUNT FOR AN ADDITIONAL CHARGE.
THIS POLICY CONTAINS A CO-PAY PROVISION THAT MAY
RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.
FIM-DEC (01/08) INSUREDS COPY PAGE 3 OF 3FRONTIine
: : WhenSafe® POLICY TRANSACTION DATE: 07/15/17
INSURANCE RENEWAL DECLARATIONS DATE ISSUED: 05/21/17
Underritten by:
Frontline Insurance Unlimited
P.O.BOX 958405
Lake Mary, FL 32795-8405
FPH3-142563W mst 7158
_— 12:01 AM Standard Time
THIS IS NOTA HOMEOWNERS. OR FIRE POLICY.
The amount of the available WhenSafe credit shown on this Renewal Declarations is subject to change in accordance
with the terms of your WhenSafe Credit Policy discussing the specific conditions under which the WhenSafe Credit
will revert back to 5%. In the event these conditions take place between the date this Renewal Declarations is
issued 05/21/17 and the date the Renewal Policy is to commence 07/15/17, we will send you an amended Renewal
Declarations reflecting the revised amount of your available WhenSafe credit during the renewal period.
IF YOU HAVE QUESTIONS ABOUT YOUR POLICY, PLEASE CONTACT YOUR AGENT AT 239-333-0888
TO REPORT A CLAIM, CALL 800-675-0145
PAUL CHARLEBOIS
& LOIS CHARLEBOIS:
191 EDGEMERE WAY S
NAPLES, FL 34105-7108
Brandon Nash
NASH INSURANCE & ASSOC LLC
801 COLLEGE PARKWAY, STE 5
FT MYERS, FL 33919
LOCATION OF PROPERTY INSURED:
191 EDGEMERE WAY S, NAPLES, FL 34105-7108
COVERAGE IS PROVIDED WHERE LIMIT OF LIABILITY AND ) PREMIUM ARE SHOWN.
an
a
UNDERLYING CALENDAR-YEAR HURRICANE. DEDUCTIBLE: $7,200 (2% OF COVERAGE A)
AVAILABLE WhenSafe® CREDIT $1,440
TOTAL POLICY PREMIUM
DEPARTMENT OF FINANCIAL SERVICES TAX
POLICY FEE.
*FIM WS (04/16)
THIS INSURANCE IS ISSUED PURSUANT TO THE FLORIDA SURPLUS LINES LAW.
PERSONS INSURED BY SURPLUS LINES CARRIERS DO NOT HAVE THE PROTECTION
OF THE FLORIDA INSURANCE GUARANTY ACT TO THE EXTENT OF ANY RIGHT OF
RECOVERY FOR THE OBLIGATION OF AN INSOLVENT UNLICENSED INSURER.
SURPLUS LINES INSURERS’ POLICY RATES AND FORMS ARE NOT APPROVED BY ANY
FLORIDA REGULATORY AGENCY.
3 ay an
ee 4A yp Ge
. YE. Lo LP cee :
AUTHORIZED SIGNATURE: ___ ree t DATE SIGNED: __5/21/17
Surplus Lines Agent's Name: . Thomas C Poppell Ill Surplus Lines Agent's License? _A209654
Surplus Lines Agent's Address; 7131 Business Park Ln Suite 300, Lake Mary, FL'32746: :
FRONTLINE WEBSITE: www.frontlineinsurance.com FRONTLINE EMAIL: info@flhi.com
FIM-FL-WS-RDEC (04/16) INSUREDS COPY PAGE 1 OF 1Homeowners
FIM 00 13 12 10
THIS ENDORSEMENT CHANGES THE POLICY — PLEASE READ IT CAREFULLY
LIMITED FUNGI, WET OR DRY ROT, OR BACTERIA
COVERAGE
(FOR USE WITH FORM
SCHEDULE *
HO 00 03)
“Fungi”, Wet Or Dry Rot, Or Bacteria
Section | — Property Coverage Limit of Liability For the
Additional Coverage “Fungi”, Wet Or Dry Rot, Or Bacteria
‘Section Il — Coverage E Aggregate Sublimit of Liability for
Each Covered Loss
$ Policy Aggregate
$50,000
* Entries may be left blank if shown elsewhere in this policy for coverage.
DEFINITIONS - = =
The following Definition is added:
“Fungi”
a. “Fungi” means any type or form of fungus,
including mold or mildew, and any mycotoxins,
spores, scents or by-products produced or
released by fungi.
b, Under Section II, this does not include any fungi
that are, are on, or are contained in, a good or
product intended for consumption.
SECTION = PROPERTY COVERAGES
ADDITIONAL COVERAGES
The following Additional Coverage 12. is added:
12. “Fungi”, Wet Or Dry Rot, Or Bacteria
a. The amount shown in the Schedule above is
the most we will pay for:
(4) The total of all loss payable under Section |
— Property Coverages caused by “fungi”,
wet or dry rot, or bacteria;
(2) The cost to remove “fungi”, wet or dry rot,
or bacteria from property covered under
Section | — Property Coverages;
(3)
The cost to tear out and replace any part of
the building or other covered property as
needed to gain access to the “fungi”, wet or
dry rot, or bacteria; and
(4) The cost of testing of air or property to
confirm the absence, presence or level of
“fungi”, wet or dry rot, or bacteria, whether
performed prior to, during or after removal,
FIM 00 13 12 10
repair, restoration or replacement. The
cost of such testing will be provided only to
the extent that there is a reason to believe
that there is the presence of “fungi”, wet or
dry rot, or bacteria.
b. The coverage described in 12.a. only applies
when such loss or costs are a result of a Peril
Insured Against that occurs during the policy
period and only if all reasonable means were
used to save and preserve the property from
further damage at and after the time the Peril
Insured Against occurred.
c. The Each Covered Loss amount shown in the
Schedule for this coverage is the most we will
pay for the total of all loss or costs payable
under this Additional Coverage resulting from
any one covered loss; and
The Policy Aggregate amount shown in the
Schedule for this coverage is the most we will
pay for the total of all loss or costs payable
under this Additional Coverage for all covered
losses, regardless of the number of locations
insured under this endorsement or number of
claims made.
d. If there is covered loss or damage to covered
property, not caused, in whole or in part, by
“fungi”, wet or dry rot, or bacteria, loss payment
will not be limited by the terms of this Additional
Coverage, except to the extent that “fungi”, wet
or dry rot, or bacteria causes an increase in the
loss. Any such increase in the loss will be
subject to the terms of this Additional
Coverage.
This coverage does not increase the limit of liability
applying to the damaged covered property.
Page 1 of 2SECTION I- PERILS INSURED AGAINST
COVERAGE A - DWELLING and COVERAGE B —
OTHER STRUCTURES
Paragraph 2.e.(3) is deleted and replaced by the
following:
(3) Smog, rust or other corrosion;
The following paragraph 2.e.(9) is added:
(9) Constant or repeated seepage or
leakage of water or steam or the
presence of condensation of humidity,
moisture, or vapor aver a period of 14 or
more days from within a plumbing,
heating, air conditioning or automatic fire
protective sprinkler system or from within
a household appliance.
SECTION | - EXCLUSIONS
The following Exclusion 1.i. is added:
i. “Fungi”, Wet Or Dry Rot, Or Bacteria
“Fungi”, wet or dry rot, or bacteria, meaning the
presence, growth, proliferation, spread or any
activity of “fungi”, wet or dry rot, or bacteria.
This Exclusion does not apply:
(1) When “fungi”, wet or dry rot, or bacteria
results from fire or lightning; or
(2) To the extent coverage is provided for in
the “Fungi”, Wet Or Dry Rot, Or Bacteria
Additional Coverage under Section | —
Property Coverages with respect to loss
caused by a Peril Insured Against other
than fire or lightning.
Direct loss by a Peril Insured Against resulting
from “fungi”, wet or dry rot, or bacteria is
covered.
. SECTION Il - CONDITIONS
1. Limit of Liability is deleted and replaced by the
following:
1. Limit of Liability
Our total liability under Coverage E for all damages
resulting from any one “occurrence” will not be more
than the Coverage E limit of liability shown in the
Declarations. This limit is the same regardless of
the number of “insureds”, claims made or persons
injured. All “bodily injury” and “property damage”
tesulting from any one accident or from continuous
or repeated exposure to substantially the same
general harmful conditions will be considered to be
the result of one “occurrence”.
FIM 00 13 12 10
Homeowners
FIM 00 13 12 10
Our total liability under Coverage F for all medical
expense payable for “bodily injury” to one person as
the result of one accident will not be more than the
Coverage F limit of liability shown in the
Declarations.
However, our total liability under Coverage E for the
total of all damages arising directly or indirectly, in
whole or in part, out of the actual, alleged or
threatened inhalation of, ingestion of, contact with,
exposure to, existence of, or presence of any
“fungi”, wet or dry rot, or bacteria will not be more
than the Section Il Coverage E Aggregate Sublimit
of Liability for “Fungi”, Wet Or Dry Rot, Or Bacteria.
This is the most we will pay regardless of the:
(1) Number of locations insured under the
policy to which this endorsement is
attached;
(2) Number of persons injured;
(3) Number of persons whose property is
damaged;
(4) Number of “insureds”; or
(5) Number of “occurrences” or claims made.
This sublimit is within, but does not increase, the
Coverage E limit of liability. It applies separately to
each consecutive annual period and to any
Temaining period of less than 12 months, starting
with the beginning of the policy period shown in the
Declarations.
With respect to damages arising out of “fungi”, wet or
dry rot, or bacteria described in 1. Limit of Liability of
this endorsement:
2. Severability of Insurance is deleted and replaced
by the following:
2. Severability of Insurance
This insurance applies separately to each “insured”
except with respect to the Aggregate Sublimit of
Liability described in this endorsement under
Section Il Conditions 1. Limit of Liability. This
Condition will not increase the limit of liability for this
coverage.
SECTIONS | AND Il - CONDITIONS _
4. Policy Period is deleted and replaced by the
following:
41. Policy Period
This policy applies only to loss or costs in Section |
or “bodily injury” or “property damage” in Section Il,
which occurs during the policy period.
All other provisions of the policy apply.
Page 2 of 2Homeowners
FIM 00 17 12 10
THIS ENDORSEMENT CHANGES THE POLICY - PLEASE READ IT CAREFULLY
ANIMAL LIABILITY EXCLUSION ENDORSEMENT
SECTION Il — LIABILITY COVERAGES
The following paragraph is added to COVERAGE E —
PERSONAL LIABILITY
We will NOT cover any damages caused by, arising out
of or in connection with any animal owned or kept by any
insured, tenant or guest whether or not the injury
occurs on your premises or any other location. All other
provisions and exclusions apply.
The following paragraph is added to COVERAGE F —
MEDICAL PAYMENTS TO OTHERS
We will NOT cover any damages caused by, arising out
of or in connection with any animal owned or kept by any
insured, tenant or guest whether or not the injury
occurs on your premises or any other location. All other
provisions and exclusions apply.
_ SECTION Il - ADDITIONAL COVERAGES -
ae eee eee—eEeEseE_.
The following is added to paragraph 3. Damage to
Property of Others.
f. Caused by, arising out of or in connection with
any animal owned or kept by any insured,
tenant or guest whether or not the injury occurs
on your premises or any other location. All other
provisions and exclusions apply.
FIM 00 17 12 10
Page 1 of 1Homeowners
FIM 00 19 09 09
THIS ENDORSEMENT CHANGES THE POLICY — PLEASE READ IT CAREFULLY
SCREEN ENCLOSURE HURRICANE LIMITATION
(FOR USE WITH ALL FORMS EXCEPT HO 00 04)
Your policy is amended as follows for hurricane
losses only.
DEFINITIONS
The following Definition is added:
“Screen Enclosure” means any structure on the
residence premises (regardless of whether it is
attached to your dwelling) enclosed by screens on
more than one side otherwise open to the weather,
and not constructed and covered by the same or
substantially the same materials as that of the
dwelling where you reside.
“SECTION | - PROPERTY COVERAGES
COVERAGE A - DWELLING
The following paragraph 3. is added:
3. We do not cover “screen enclosure(s)” as defined
unless specified on the declarations page and for
which an additional premium is paid. If an
amount of coverage for “screen enclosure(s)” is
listed on the declarations page, this amount is
part of Coverage A and does not reduce your
Coverage A limit of liability.
COVERAGE B - OTHER STRUCTURES
The following paragraph 3. is added:
3. We do not cover “screen enclosure(s)” as defined
unless specified on the declarations page and for
FIM 00 19 09 09
which an additional premium is paid. If an
amount of coverage for “screen enclosure(s)” is
listed on the declarations page, this amount is
part of Coverage B and does not reduce your
Coverage B limit of liability.
SECTION 1 - CONDITIONS
The following paragraphs 3.c. and 3.d. are added:
c. “Screen enclosure(s)” as specified on the
declarations page and for which an additional
premium is paid, at replacement cost up to
the amount shown on your declarations page
for screen enclosures.
d. A loss to your property reduces our liability
limit by the amount of the loss under the
appropriate coverage. Upon repair or
replacement of the property, the limit will
return to the limit shown on the declarations
page. If the damaged property has only
been partially repaired or replaced, the limit
will be equal to the replaced or repaired
value, but not more than the value shown on
the declarations page.
Any loss payments under this coverage will be
subject to the calendar-year hurricane deductible
as defined in your policy. In the event that other
covered areas are also damaged, the hurricane
deductible amount will be applied to all damage
collectively. This can result in high out-of-pocket
expenses for you in the event of a hurricane loss.
Page 1 of 1THIS ENDORSEMENT CHANGES THE POLICY — PLEASE READ IT CAREFULLY
~~ “DEFINITIONS _
The following Definition is added:
“Hurricane Occurrence”
A “hurricane occurrence”:
a. Begins at the time a hurricane watch or
hurricane warning is issued for any part of
Florida by the National Hurricane Center of
the National Weather Service;
b. Continues for the time period during which
the hurricane conditions exist anywhere in
Florida, and
c. Ends 72 hours following the termination of
the last hurricane watch or hurricane warning
issued for any part of Florida by the National
Hurricane Center of the National Weather
Service.
The following Definition is added:
“Personal injury” means injury arising out of
‘one or more of the following offenses, but only if
the offense was committed during the policy
period:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
The wrongful eviction from, wrongful entry
into, or invasion of the right of private
occupancy of a room, dwelling or premises
that a person occupies, committed by or on
behalf of its owner, landlord or lessor;
d. Oral or written publication of material that
slanders or libels a person or organization or
disparages a person’s or organization's
goods, products or services; or
e. Oral or written publication of material that
violates a person's right of privacy.
SECTION | - PROPERTY COVERAGES
COVERAGE A - Dwelling is deleted and replaced
by the following:
We cover:
1. The dwelling on the “residence premises” shown
in the Declarations, including structures attached
to the dwelling;
2. Materials and supplies located on or next to the
“residence premises” used to construct, alter or
repair the dwelling or other structures on the
“residence premises;” and
3. In-ground swimming pools.
FIM 00 23 10 11
Includes copyrighted material of Insurance Services Office, Inc.,
SPECIAL PROVISIONS — FLORIDA
This coverage does not apply to land, including land
‘on which the dwelling is located,
COVERAGE B - Other Structures is deleted and
replaced by the following:
We cover other structures on the “residence
premises” set apart from the dwelling by clear space.
This includes structures connected to the dwelling by
only a fence, utility line, or similar connection.
This coverage does not apply to in-ground swimming
pools.
This coverage does not apply fo land, including land
‘on which the other structures are located.
We do not cover other structures:
4. Used in whole or in part for “business”; or
2. Rented or held for rental to any person not a
tenant of the dwelling, unless used solely as a
private garage.
The limit of liability for this coverage will not be more
than 10% of the limit of liability that applies to
Coverage A. Use of this coverage does not reduce
the Coverage A limit of liability.
COVERAGE C - Personal Property
Special Limits of Liability
Item 2. is deleted and replaced by the following:
2. $1000 on securities, accounts, deeds, evidences
of debt, letters of credit, notes other than bank
notes, manuscripts, personal records, passports,
tickets, stamps, trading cards and comic books,
This dollar limit applies to these categories
regardless of the medium (such
Preview
Filing # 100033294 E-Filed 12/09/2019 05:14:51 PM IN THE CIRCUIT COURT OF THE 20th JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASENO.: 11-2019-CA-002007-0001-XX SFR SERVICES LLC A/A/O PAUL AND LOIS CHARLEBOIS, Plaintiff, vs. FIRST PROTECTIVE INSURANCE COMPANY DBA FRONTLINE INSURANCE, Defendant. / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND COMPEL APPRAISAL AND STAY AND SUPPORTING MEMORANDUM OF LAW COMES NOW Plaintiff, SFR SERVICES LLC A/A/O PAUL AND LOIS CHARLEBOIS (‘Plaintiff’), by and through the undersigned counsel, files this Plaintiff's Response to Defendant FIRST PROTECTIVE INSURANCE COMPANY DBA FRONTLINE INSURANCE (“Defendant”) Motion to Dismiss and Compel Appraisal and Stay and Supporting Memorandum of Law (“the Motion”), and as grounds therefore, states as follows: 1. The claim at issue comes before this Court as a dispute over the amount of insurance benefits due to covered peril that occurred on December 20", 2017 occurring at the property of the PAUL AND LOUIS CHARLEBOIS (“Insureds”) located at 191 EDGEMERE WAY S, NAPLES, FL 34105 (the “property”). 2. Itis undisputed that Defendant provided insurance for the property and that the insurance policy was in full force and effect on the date of loss. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 12/10/2019 02:11:41 PM. Defendant’s acknowledged receipt of the claim and assigned it claim number 01-17532. As a result of a loss to the property caused by a covered peril, the insured procured the consulting, build-back, and restoration services of Plaintiff and executed an assignment of benefits (“AOB”) in favor of the Plaintiff in exchange for the services provided. The AOB was executed on January 24th, 2019. . Prior to this suit being filed, Plaintiff submitted an estimate in the amount of $171,246.22 for consulting, build-back, and restoration services. . On October 14th, 2019, Defendant filed its Motion to Dismiss and Compel Appraisal and Stay and Supporting Memorandum of Law. . Defendant has filed a Motion to Compel Appraisal and Plaintiff responds as follows: a. Defendant’s policy also contains a Mediation clause which is a less costly and equally efficient means of alternative dispute resolution. Defendant has failed to properly offer the choice of mediation to Plaintiff as a means of resolving the instant matter as required under Florida Statute 627.7015. b. Defendant has taken the position that Plaintiff is not entitled to mediation as it is not the insured under the policy however, Defendant has taken the inconsistent position of attempting enforce upon the Plaintiff a duty to arbitrate under the policy that per the terms and definitions of the policy is a duty only required of the insured, not an assignee. c. Mediation is preferable to appraisal as a matter of public policy, judicial economy, fairness and costs to Plaintiff.d. Defendant has waived its right to appraisal by failing to notify an insured of his/her right to mediation under Fla. Statute § 627.7015. I. Defendant Has Waived The Right to Compel Appraisal 8. An insurance carrier waives its right to appraisal if it fails to notify an insured of his/her right to mediation under Fla. Stat.§ 627.7015. See Fla. Stat.§ 627.7015 "At the time a first-party claim within the scope of this section is filed by the policyholder, the insurer shall notify the policyholder of its right to participate in the mediation program under this section."); Universal Prop. & Cas. Ins. Co. v. Colosimo, 61 So. 3d 1241 (Fla. 3d DCA 2011); Gassman vy. State Farm Fla. Ins. Co., 77 So. 3d 210 (Fla. 4th DCA 2011); Fla. Ins. Guar. Ass'n v. Shadow Wood Condo. Ass'n, 26 So. 3d 610 (Fla. 4th DCA 2009); Subirats v. Fid. Nat’/ Prop., 106 So. 3d 997 (Fla. 3d DCA 2013). Defendant has not provided any record evidence to show that it complied with the mediation notice requirement under Fla. Stat.§ 627.7015. Il. _—_ Plaintiff/Assignee Has the Right to Invoke Non-Binding Mediation at Defendant’s Costs 9. While Defendant seeks to compel appraisal, the Fla. Stat. § 627.7015 provides for a Plaintiff's right to mediation. The court is well aware that mediation is a less costly and equally effective method of alternative dispute resolution. The mediation clause in the Policy provides: SECTION I - CONDITIONS 6. Appraisal is deleted and replaced by the following: Mediation or Appraisal. If you and we fail to agree on the settlement regarding the loss, either may: “Demand a mediation of the loss in accordance with the rules established by the Florida Department of Financial Services. The loss amount must be $500 or more, prior to application of the deductible; or there must be a difference of $500 or more between the loss settlement amount we offer and the loss settlement amount that you request. The settlement in the course of themediation is binding only if both parties agree, in writing, on a settlement and you have not rescinded the settlement within 3 business days after reaching settlement. You may not rescind the settlement after cashing or depositing the settlement check or draft we provided to you. We will pay the cost of conducting any mediation conference except when you fail to appear at a conference. That conference will then be rescheduled upon your payment of the mediator’s fee for that rescheduled conference. However, if we fail to appear at a mediation conference without good cause, we will pay the actual cash expenses you incurred while attending the conference and also pay the mediator’s fee for that rescheduled conference.” See a non-certified copy of the policy, which is hereby incorporated and attached as Exhibit A. (See Page 6 of 13 in Section entitled Special Provisions — Florida). [Emphasis added.] 10. The Policy via the incorporation of the mediation statute expressly provides as an option for dispute resolution to be invoked by either the insured or the insurer. Plaintiff by right of assignment, acknowledged and accepted by Defendant, is within its rights, and invoked its right to mediation. At the mediation, Defendant took the position that this claim for payment by third-party assignee is not the proper matter for referral by DFS to Residential Mediation Program. Certainly, mediation is preferable to a more cost prohibitive method of appraisal as a means of attempting to resolve this matter. Ill. If Defendant’s Position is that Plaintiff cannot Exercise its Right to Mediation and Must Participate in Appraisal then Defendant’s Position as to Plaintiff's Rights to Arbitration and Mediation are Inconsistent 11. Florida case law is clear that assignments confer the same rights to a contract as an assignor would have. The law is well established that an unqualified assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned. Moreover, it is beyond dispute that “the assignee steps into the shoes of the assignor and is subject to all equitiesand defenses that could have been asserted against the assignor had the assignment not been made.” See Dependable Ins. Co. v. Landers, 421 So.2d 175, 179 (Fla. 5th DCA 1982). 12. An assignment has been defined as "a transfer or setting over of property, or of some right or interest therein, from one person to another." Black's Law Dictionary 128 (8th ed.2004) (quoting Alexander M. Burrill, 4 Treatise on the Law and Practice of Voluntary Assignments for the Benefit of Creditors § 1, at 1 (James Avery Webb ed., 6th ed. 1894)). Essentially, it is the "voluntary act of transferring an interest”. DeCespedes v. Prudence Mut. Cas. Co., 193 So. 2d 224, 227 (Fla. 3d DCA 1966); accord Fla. Power & Light Co. v. Road Rock, Inc., 920 So.2d 201, 204 (Fla. 4th DCA 2006); 3A Fla. Jur.2d Assignments § 1 (2007); 6 Am. Jur.2d Assignments § 1 (2007). 13. Assignment law is a long-standing legal doctrine recognized under Florida law, which has been utilized by Florida citizens for over one hundred years. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., 753 So.2d 55, 57 (Fla. 2000) ("The right to sue for breach of contract to enforce assigned rights predates the Florida Constitution.") See also Selfridge v. Allstate Ins. Co., 219 So.2d 127, 128 (Fla. 4th DCA 1969) ("The assignability of a cause of action is the rule rather than the exception."); West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 210-11(Fla. 1917)(holding that a provision against assignment of an insurance policy does not bar an insured's assignment of an after-loss claim); Accident Cleaners, Inc. v. Universal Ins. Co. 186 So. 3d 1 (Fla. 5th DCA) ("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."); Shaw v. State Farm Fire and Casualty Company, Case No. 5D07-3136 (Fla. 5th DCA 2010) ("The ability to assign contractual rights, including the right to payment, is an important commercial mechanism to facilitate transactions and to secure the payment of obligations ..."); One Call Pto mediation, the insurance policy in question provides that the 5Insured or the Defendant may request mediation with the Florida Department of Financial Services to resolve a dispute concerning a claim. rop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. 4th DCA 2015) ("Even when an insurance policy contains a provision barring assignment of the policy, an insured may assign a post-loss claim."); Security First Ins. Co. v. State of Florida Office of Insurance Regulation, 177 So.3d 627 (Fla. 1st DCA 2015) ("We find an unbroken string of Florida cases over the past century holding that policyholders have the right to assign such claims without insurer consent."). 14. Under Florida law, an anti-assignment clause written into an insurance policy is not a bar to an insured's assignment of a post-loss claim. See West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 14 Fla. 220, 77 So. 209, 210-11(Fla. 1917) ("It is a well-settled rule that anti-assignment provisions do not apply to an assignment after loss."); Citizens Prop. Ins. Corp. v. Ifergane, 114 So.3d 190 (Fla. 3d DCA 2012) ("Post-loss insurance claims are freely assignable without the consent of the insurer."); Continental Cas. Co. v. Ryan Inc. Eastern, 914 So.2d 368 (Fla. 2008); Better Constr. v. National Union Fire Ins. Co., 651 So. 2d 141 (Fla. 3d DCA 1995). In Better Const., the Third District Court of Appeal held that according to Florida case law and Fla. Stat. § 627.422, "neither the no-assignment clause nor the no-action clause precludes" an assignee of an after-loss claim from stating a cause of action against an insurance carrier. See also Miami Children's Hosp., Inc. v. Malakoff, 165 F. Supp. 718 (S.D. Fla. 1991) (holding that, under ERISA, an insured may assign his rights to benefits to a medical provider); Hartford Ins. Co. of Southeast vy. St. Mary's Hosp., Inc., 771 So. 2d 1210, 1212 (Fla. 4th DCA 2000) ("Courts have recognized that medical service providers can assert claims for PIP benefits against insurers when an insured has assigned them the right to the benefits.") The effect of such an assignment is to place the insured's cause of action for such benefits in the provider. See Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469,470 (Fla. Sth DCA 2001)("Only the insured or the medical provider 'owns' 6the cause of action against the insurer at any one time."); Accident Cleaners, Inc. v. Universal Ins. Co. 186 So. 3d 1 (Fla. Sth DCA) ("In section 627.405, the Legislature did not state that it was displacing well-settled common law of (1) the free assignability of contractual rights to recover or (2) the inability for insurers to restrict post-loss assignments."); ASAP Restoration & Constr., Inc. vy. Tower Hill Signature Ins. Co., 165 So. 3d 736 (Fla. 4th DCA 2015) (holding that a clause precluding the assignment of post-loss benefits without the consent of the insurer was invalid); Emergency Servs. 24, Inc. y. United Prop. & Cas. Ins. Co., 165 So. 3d 736 (Fla. 4th DCA 2015) ("Because the trial court erred in finding that the anti-assignment clause and the loss payment provision precluded the assignment, we reverse and remand for further proceedings."); One Call Prop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. 4th DCA 2015); Security First Ins. Co. v. State of Florida Office of Insurance Regulation, 177 So.3d 627 (Fla. Ist DCA 2015) (noting that a restriction on the assignment of post-loss rights and benefits in an insurance policy would be misleading because it would cause a policyholder to believe that the validity of such assignment was contingent on the written consent of the insurer). 15. Pursuant to the Florida Supreme Court in Lexington Ins. Co. v. Simldns Industries, Inc., where an insurance policy prohibits assignment, it is essential to look at whether the assignment occurred before or after the loss. While an insurer may prohibit or limit assignment of policy rights or benefits which materially affect the risk to the insurer such as an assignment of the entire policy, an insurer generally may not prohibit the assignment of claim rights for a loss that has already occurred. Furthermore, even if the policy contains a prohibition against assignment, the insurer generally may not prohibit the assignment of claims rights following a loss. Lexington Ins. Co. v. Simldns Industries, 704 So.2d 1384 (Fla. 1998). See also NextGen Restoration, Inc. v. Citizens Prop. Ins. Co., 126 So.3d 1255, 1256 (Fla. 2d DCA 2013) (reversing an order on a motion to dismiss alleging that the policy language precluded assignment of post-loss benefits due under an 7insurance policy); Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co., 18580. 3d 638 (Fla. 2d DCA 2016) (noting that an assignment before a loss involves a transfer of a contractual relationship; however, an assignment after a loss is the transfer of a right to a money claim); One Call Prop. Servs. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. 4th DCA 2015) ("Even when an insurance policy contains a provision barring assignment of the policy, an insured may assign a post-loss claim.") 16. Once transferred, the assignor no longer has a right to enforce the interest because the assignee has obtained all "rights to the thing assigned." Price v. RLI Ins. Co., 914 So.2d 1010, 1013-14 (Fla. 5th DCA 2005) (quoting Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr. Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2003)). A claim on an insurance policy is a chose in action and is assignable as such.” United Cos. Life Ins. Co. v. State Farm and Fire Cas. Co., 477 So.2d 645, 646 (Fla. Ist DCA 1985). As such, under established Florida law, Plaintiff, as the assignee to the policy, has all the rights to avail itself of the policy provisions, including the right to mediation, as though it were the insured. “A claim on an insurance policy is a chose in action and is assignable as such.” United Cos. Life Ins. Co. v. State Farm and Fire Cas. Co., 477 So.2d 645. IV. It is Good Public Policy that Assignees May also Avail Themselves of the Right to Mediation Under Florida Statute § 627.7105. 17. If Florida Statute § 627.7105 were to prohibit assignees from the right to mediate, this prohibition would be in direct controversy with the long-established Florida law regarding the core purpose of assignments, which is to place the assignee in possession of the same rights as held by the assignor. To adhere to the Defendant’s position would be to espouse a flagrant disregard for one of the core principles of Florida contract law that pre-dates the aforementioned statute itself. 18. The Florida Legislature enacted Fla. Stat. § 627.7015 to combat the high cost of the appraisal process and to level the playing field for Florida consumers. It recognized that insurancecarriers could potentially misuse the appraisal process to discourage Florida consumers from seeking just compensation for covered losses. In sum, the Florida Legislature identified a problem in the potential misuse of the appraisal process and sought to remedy the problem with Fla. Stat.§ 627.7015. As a result, Fla. Stat.§ 627.7015 created a mediation program to serve as an alternative to the costly and adversarial appraisal process. See Fla. Stat.§ 627.7015.; Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, 67 So. 3d 187 (Fla. 2011); Universal Prop. & Cas. Ins. Co. v. Colosimo, 61 So. 3d 1241 (Fla. 3d DCA 2011). 19. Fla. Stat. § 627. 7015 specifically provides that "[m]ediation under this section is also available to litigants referred to the department by a county court or circuit court." See Fla. Stat.§ 627.7015. As such, this Court has authority to refer this matter to mediation. Due to the high cost of the appraisal process, mediation under Fla. Stat.§ 627.7015 is a cost-effective option to potentially resolve the case at hand. The insurance policy in question specifically lists mediation or appraisal to resolve disputes. In relation to mediation, the insurance policy in question provides that the Insured or the Defendant may request mediation with the Florida Department of Financial Services to resolve a dispute concerning a claim. V. Mediation is Preferable to Appraisal As a Matter of Public Policy, Judicial Economy, Fairness and Costs to Plaintiff 20. It is in the interest of public policy, judicial economy and it is more cost beneficial to the parties to allow for this Court to enforce the Policy’s mediation clause as opposed to the appraisal clause because mediation is a more cost-effective way of resolving the underlying dispute. Florida Statute § 627.7105 acknowledges that mediation is preferable and more cost effective than appraisal as it expressly states: “There is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowner and commercial residential insurance policiesobligate policyholders to participate in a potentially expensive and time- consuming adversarial appraisal process before litigation. The procedure set forth in this section is designed to bring the parties together for a mediated claims settlement conference without any of the trappings or drawbacks of an adversarial process. Before resorting to these procedures, policyholders and insurers are encouraged to resolve claims as quickly and fairly as possible. This section is available with respect to claims under personal lines and commercial residential policies before commencing the appraisal process, or before commencing litigation.” [Emphasis added]. 21. The appraisal process is a more expensive and time-consuming method of alternative dispute resolution. Pursuant to the terms of the Policy, each party must pay its own appraiser, including the costs associated with producing the estimate to be used in asserting its position. In addition, each party must “bear the fees and expenses of the appraisal and umpire equally.” 22. The principles of equity and justice should excuse Plaintiff from having to submit to the appraisal process as the costs of doing so can result in the expenditure of an amount in excess of the amount claimed. See Green Tree Financial Corp-Alabama v. Randolph, 531 U.S. 79 (2000)(explaining the prohibitive cost doctrine). See Broward Ins. Recovery Cntr., LLC (a/a/o Harry Drangsland y. Allstate Ins. Co., 25 Fla. L. Weekly Supp. 294a. (Broward County Ct. May 8, 2017)(Hon. Jennifer W. Hilal), stating: “Courts have also considered whether appraisal provisions may be illusory in the context of the small monetary amounts of windshield damage cases. Broward Ins. Recovery Cntr., LLC (a/a/o Shane Bushman) v. Progressive Select Ins. Co., 24 Fla. L. Weekly Supp. 761a (Broward County Ct. Nov. 3, 2016)(Hon. Robert W. Lee)("..the Court notes that the small amount in dispute here compared to the costs of an appraisal renders the process illusory for all intents and purposes. To hold otherwise would in the Court's view, effectively close all meaningful means of redress to those who suffer windshield damage under a progressive policy." See also Lloyd's of Shelton Auto Glass, LLC a/a/o Jedidiah Thomas v. Progressive Select Ins. Co., Fla. L. Weekly Supp. 2504JTHO (Hillsborough County Ct. July 26, 2017 where the Honorable Herbert M. Berkowitz cited in footnote three (3): 10“The irony is that, in reality, there can be no 'full payment! as even an award by the appraisers for the full amount claimed still subjects the insured to costs and expenses that, in fact, reduces the net award to less than a full recovery.” 23. By allowing the parties to mediate, rather than forcing Plaintiff into the more costly appraisal process, the Court would better serve and preserve the Plaintiff's underlying claim and maintain the balance of equities. To that end, nothing in the Policy itself expressly prohibits an assignee from availing itself of the mediation provision. This fact, combined with the fact that the Policy does not mandate appraisal over mediation, would only seem to bolster the reasons for denying Defendant’s Motion to Compel Appraisal. VI. The Florida Department of Financial Services Confirms that Plaintiff, as Assignee, Is Within Its Rights to Mediate This Case 24. Plaintiff has contacted the Florida Department of Financial Services (“DFS”), the entity charged with overseeing the mediation of contract disputes within the state of Florida and the DFS has expressly responded affirmatively indicating that Plaintiff, as an assignee, is within its rights to seek mediation. Furthermore, DFS has gone so far as to advise Plaintiff of the procedure to proceed with its request. See true and correct copy of the email response from DFS attached hereto as Exhibit B. VII. Defendants Are in Violation of Florida Statute § 627.7105 By Failing to Advise the Plaintiff/Assignee of its Right to Mediate and Filing a Motion to Compel Appraisal and Stay 25. One of the requirements under Florida Statute § 627.7105 is that the insurer advise the policyholder, or in this matter, the assignee, of its right to participate in the mediation program under this statutory section. Defendant has failed to provide this notice and has, in fact, done the opposite by refusing Plaintiff's request for mediation. This Court should find that as a 11matter of law under the Policy, Plaintiff cannot be forced into appraisal by Defendant and that mediation is the more equitable method of dispute resolution in this matter. VIII. Defendant’s Position on the Plaintiff’s Duties and Rights Under the Policy Are Inconsistent 26. If Defendant takes the position that Plaintiff, as an assignee, is not the first party claimant or “insured” under the policy and therefore, is not allowed to avail itself of the mediation provisions extended under Florida Statute § 627.7105, it must also concede that Plaintiff is not an “insured” under the Policy is not an insured under the appraisal provision. As such, Plaintiff would not be subject to the same duties and restrictions as the insured under the Policy. Defendant cannot decide to hold the assignee as a named insured for some portions of the policy while at the same time arguing that the assignee is not a named insured for other portions of the policy. 27. Should the Court believe that Plaintiff, as an assignee, is not a first party claimant or “insured” under the policy (thus agreeing with Defendant’s position), then Plaintiff would be required to take the alternative position that, as an assignee of the insured, it only has the right to seek payment under the instant claim. As a non-party to the insurance contract, Plaintiff would not be obligated under Florida law to accept or assume the duties of the insured under the subject policy - which includes the duty to submit to appraisal. 28. Florida courts have consistently held that the term "named insured" has a restricted meaning and does not apply to persons not specifically named in the policy. Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla. 3d DCA 1966). The Plaintiff is not the named insured shown in the Declarations nor is the Plaintiff the named insured's spouse. As such, based on the plain language of the Policy, Plaintiff is not required to participate in any contractual loss appraisal process. 1229. Defendant drafted the Policy and chose to use this limiting language that restricts the application of the appraisal process to only the named insured. The terms of the Policy must be construed as written and viewed in a light most favorable to the insured. Lloyd's of Shelton Auto Glass, LLC a/a/o Jedidiah Thomas v. Progressive Select Ins. Co. Fla. L. Weekly Supp. 2504JTHO (Hillsborough County Ct. July 26, 2017 (Hon. Herbert M. Berkowitz) citing United States Fid & Guar. Co. v. Romay, 744 So.2d 467, 471 (Fla. 3d DCA 1999). 30. The assignment of a contract right does not entail the transfer of any duty to the assignee, unless the assignee assents to assume the duty. See Dependable Ins. Co. v. Landers, 421 So. 2d 175, 179 (Fla. 5th DCA 1982). Assignment of a right to payment under a contract does not eliminate the duty of compliance with contract conditions, but a third-party assignee is not liable for performance of any duty under a contract, unless he was a party to the agreement or has become a party by subsequent agreement. Absent such an event, which is in the nature of a novation, the duty of performance of the conditions to the right of payment remains with the assignor.? In other words, the assignee of a contract right owes no duty of performance to the obligor. See Shaw v. State Farm Fire & Cas. Co., 37 So. 3d 329 (Fla. 5" DCA 2010) (hereinafter Shaw). 31. An obligor cannot unilaterally attach conditions to the obligee’s right of assignment and cannot bind the assignee to any performance under the contract unless the assignee has agreed..... By accepting an assignment of a right to be paid, the assignee does not obligate itself to perform any covenant under the contract. See Shaw, 37 So. 3d at 329. In this matter, Plaintiff has accepted the right to be paid under the terms of the Policy, but has not, in writing or by action, accepted or agreed to be bound by the duties imposed upon the insured under the Policy. The Court in Shaw went on to hold that “the ability to assign contractual rights, including the right to payment, is an important commercial mechanism to facilitate transactions and to secure the payment of obligations, but this device would be completely thwarted if the obligor could impose conditions 13on the exercise of such rights acquired through assignment. There is a reason why there is a vast body of case law on whether a particular right is or is not assignable, but none recognizing the obligor's right to condition payment of sums due and owing under the contract to the subsequent performance of some contractual duty in the underlying contract.” See Shaw, 37 So. 3d at 329. As the rule above says, the defenses available to the obligor are fixed as of the time of the assignment, no subsequent duty on the part of the assignee arises because of the assignment. See Id. \t should then follow that as, at the time of assignment, the appraisal clause had not been invoked or enforced against the insured, the duty to perform under the appraisal clause did not flow with the assignment at the time the assignment was conveyed. Plaintiff is under no obligation to perform a duty that was not invoked against the insured at the time the assignment was conveyed to the Plaintiff. Also, subsequent to the assignment, Plaintiff has not agreed to be bound to the duty to submit to appraisal under the policy. 32. If Defendant’s position is that Plaintiff is not an insured then it would enforce the fact that Plaintiff cannot be bound by the duties to perform the obligations of the insured. Plaintiff cannot be forced into the appraisal process. Should this Court find that Plaintiff has not stepped into shoes of the insured by virtue of the assignment and cannot avail itself of the mediation clause, this Court should find that Plaintiff, as a possessor of the right to reimbursement by virtue of the recognized assignment, cannot be forced into appraisal by Defendant. Thus, the only remedy available to Plaintiff would be an action for breach of contract which is exactly what was pled in this case. WHEREFORE Plaintiff respectfully requests that this Court deny Defendant’s Motion to Dismiss and Compel Appraisal and Stay and Supporting Memorandum of Law and grant any other relief deemed just and proper. (Certificate Follows on the Next Page) 14CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically served on December 9, 2019 via the Florida E-Filing Portal. THE WHISLER LAW FIRM, P.A. Attorney for Plaintiff 1909 Tyler Street, Suite 501 Hollywood, Florida 33020 Telephone: (561) 708-0513 E-Mail: service@whislerlawfirm.com By: /s/ Joshua Whisler JOSHUA WHISLER, ESQ. FL Bar No. 98172 15EXHIBIT A. FP z £ ONTipa FRONTIne HOMEOWNERS POLICY TRANSACTION DATE: 07/15/17 INSURANGIE RENEWAL DECLARATIONS DATEISSUED: 05/21/17 POLICY NUMBER Underwritten by: First Protective Insurance Co. Fror T P.O.BOX 958405 FPH3-142563 715/17 TN5/18 Lake Mary, FL 32795-8405 12:01 AM Standard Time IF YOU HAVE QUESTIONS ABOUT YOUR POLICY, PLEASE CONTACT YOUR AGENT AT 239-333-0888 TO REPORT A CLAIM, CALL 800-675-0145 INSURED: ee _[LAGENCY: TY 523-23-21342 PAUL CHARLEBOIS. NASH INSURANCE & ASSOC LLC & LOIS CHARLEBOIS 8801 COLLEGE PARKWAY, STE 5 191 EDGEMERE WAY S FT MYERS, FL 33919 NAPLES, FL 34105-7108 Telephone: 239-262-4092 ~ ~ Telephone: 239-333-0888 ~ ~ LOCATION OF PROPERTY INSURED: _. : ~~ — 191 EDGEMERE WAY S, NAPLES, FL 34105-7108 COVERAGE IS PROVIDED WHERE LIMIT OF LIABILITY AND PREMIUM ARE SHOWN; :____ _ _ POLICY COVERAGES: =. - ~ _ _ — _— ‘SECTION! - PROPERTY A, DWELLING B. OTHER STRUCTURES C. PERSONAL PROPERTY D, LOSS OF USE SECTION | LOSSES ARE SUBJECT TO THE FOLLOWING: DEDUCTIBLE FOR ALL PERILS EXCEPT HURRICANE: $2,500 CALENDAR-YEAR HURRICANE DEDUCTIBLE: $7,200 (2% OF COVERAGE A) ‘SECTION II - LIABILITY E. PERSONAL LIABILITY 300,000 $ 8 F, MEDICAL PAYMENTS TO OTHERS: 1,000 INCLUDED “OPTIONAL COVERAGES: .— _ -__ . * : LOSS ASSESSMENT COVERAGE s 1,000 INCLUDED LIMITED FUNGI, WET OR DRY ROT, OR BACTERIA (PER OCCURRENCE/AGGREGATE) $ 25,000/50,000 $ 60 ORDINANCE OR LAW COVERAGE 25% OF DWELLING INCLUDED PERSONAL PROPERTY REPLACEMENT COST LOSS SETTLEMENT $ 320 $ $ 300 25 SCREEN ENCLOSURE COVERAGE -- HURRICANE DAMAGE. $ 15,000 WATER BACK-UP AND SUMP DISCHARGE OR OVERFLOW COVERAGE $ 5,000 POLICY CREDITS AND CHARGES: 2 ~~. ~~. 2. WIND LOSS REDUCTION CREDIT ($971) — INCLUDED EMERGENCY MANAGEMENT PREPAREDNESS AND ASSISTANCE TRUST FUND SURCHARGE $ 2 POLICY FEE 25 PREMIUM:SUMMARY: = —__—_—__*** THISIS NOTA BILL - AN INVOICE WILL BE MAILED SEPARATELY ** POLICY COVERAGES: OPTIONAL COVERAGES: POLICY CREDITS AND CHARGES: TOTAL ANNUAL PREMIUM: $2,255 _ $705 ue $27 $2,987 The portion of your premium for Hurricane is: — $1,741 ~ _] The Non-Hurricane portion of your premium is: $1,246 FIM-DEC (01/08) INSUREDS COPY” 7 7 7 ~ PAGE 1 OF3FR INTIne HOMEOWNERS POLICY INSURANCE RENEWAL DECLARATIONS DATE ISSUED: 05/21/17 Underuriton by: __POLICY NUMBER POLICY PERIOD First Protective Insurance Co, - ~ From: P.0.BOX 958405 FPH3-142563 W517 mn 5118 Lake Mary, FL 32795-8405. 12:01 AM Standard Time PAUL CHARLEBOIS ~ . NASH INSURANCE & ASSOC LLC & LOIS CHARLEBOIS 8801 COLLEGE PARKWAY, STE 5 191 EDGEMERE WAY S .|) FT MYERS, FL 33919 NAPLES, FL 34105-7108 Telephone: 239-262-4092 __| Telephone: 239-333-0888 MORTGAGEE ESCROWBILLED NO HUNTINGTON BANK ISAOA/ATIMA P.O, BOX 718 AMELIA, OH 45102 LOAN NUMBER : 0008889750 _RATING INFORMATION: | FORM TYPE: HO-3 PROTECTION CLASS: 03 CONSTRUCTION TYPE: M NUMBER OF FAMILIES: 1 TERRITORY: 551 BCEG: 99 YEAR BUILT: 1988 OCCUPANCY: OWNER USAGE: PRIMARY PROTECTIVE DEVICE CREDIT: BURGLAR ALARM: N FIRE ALARM: N SPRINKLERS: N .FORMS AND ENDORSEMENTS TAFPLIGABLETO THIS POLICY: Film0049(08/15) “FIM SEN(01/12) 7HOOO 03(04/91) "F1M(0033(06/07) *FIM0023(10/11) *FIM0019(09/09) *FIM0017(12/10) *HO03 51(01/06) “HO04 96(04/91) "HO23 86(01/06) *FIM0013(12/10) *FiM0024(06/07) *HOD4 95(11/92) *+FIM0039(10/11) *FIM0042(06/13) AUTHORIZED SIGNATURE:. ane Co Cy DATE SIGNED: __ 5/21/17 FRONTLINE WEBSITE: www.frontlineinsurance.com FIM-DEC (01/08) INSUREDS COPY PAGE 2 OF 3ey AN IRE ops os FRONTIiine HOMEOWNERS POLICY INSURANCE RENEWAL DECLARATIONS DATE ISSUED: 05/21/17 Underwritten by: First Protective Insurance Co: = P.0.BOX 958405 Lake Mary, FL 32795-8405 FPH3-142563 TNSIA7 7/15/18 12:01 AM Standard Time INSURED? et PAUL CHARLEBOIS & LOIS CHARLEBOIS . 8801 COLLEGE PARKWAY, STE 5 191 EDGEMERE WAY S FT MYERS, FL 33919 NAPLES, FL 34105-7108 Telephone: 239-262-4092 LOCATION OF. PROPERTY INSURED? 191 EDGEMERE WAY S, NAPLES, THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU. LAW AND ORDINANCE COVERAGE IS AN IMPORTANT COVERAGE THAT YOU MAY WISH TO PURCHASE. YOU MAY ALSO NEED TO CONSIDER THE PURCHASE OF FLOOD INSURANCE FROM THE NATIONAL FLOOD INSURANCE PROGRAM. WITHOUT THIS COVERAGE, YOU MAY HAVE UNCOVERED LOSSES. PLEASE DISCUSS THESE COVERAGES WITH YOUR INSURANCE AGENT. YOUR POLICY PROVIDES 25% OF COVERAGE A FOR LAW AND ORDINANCE COVERAGE AT NO ADDITIONAL COST. YOU MAY INCREASE THIS LIMIT TO 50% OF YOUR COVERAGE A AMOUNT FOR AN ADDITIONAL CHARGE. THIS POLICY CONTAINS A CO-PAY PROVISION THAT MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU. FIM-DEC (01/08) INSUREDS COPY PAGE 3 OF 3FRONTIine : : WhenSafe® POLICY TRANSACTION DATE: 07/15/17 INSURANCE RENEWAL DECLARATIONS DATE ISSUED: 05/21/17 Underritten by: Frontline Insurance Unlimited P.O.BOX 958405 Lake Mary, FL 32795-8405 FPH3-142563W mst 7158 _— 12:01 AM Standard Time THIS IS NOTA HOMEOWNERS. OR FIRE POLICY. The amount of the available WhenSafe credit shown on this Renewal Declarations is subject to change in accordance with the terms of your WhenSafe Credit Policy discussing the specific conditions under which the WhenSafe Credit will revert back to 5%. In the event these conditions take place between the date this Renewal Declarations is issued 05/21/17 and the date the Renewal Policy is to commence 07/15/17, we will send you an amended Renewal Declarations reflecting the revised amount of your available WhenSafe credit during the renewal period. IF YOU HAVE QUESTIONS ABOUT YOUR POLICY, PLEASE CONTACT YOUR AGENT AT 239-333-0888 TO REPORT A CLAIM, CALL 800-675-0145 PAUL CHARLEBOIS & LOIS CHARLEBOIS: 191 EDGEMERE WAY S NAPLES, FL 34105-7108 Brandon Nash NASH INSURANCE & ASSOC LLC 801 COLLEGE PARKWAY, STE 5 FT MYERS, FL 33919 LOCATION OF PROPERTY INSURED: 191 EDGEMERE WAY S, NAPLES, FL 34105-7108 COVERAGE IS PROVIDED WHERE LIMIT OF LIABILITY AND ) PREMIUM ARE SHOWN. an a UNDERLYING CALENDAR-YEAR HURRICANE. DEDUCTIBLE: $7,200 (2% OF COVERAGE A) AVAILABLE WhenSafe® CREDIT $1,440 TOTAL POLICY PREMIUM DEPARTMENT OF FINANCIAL SERVICES TAX POLICY FEE. *FIM WS (04/16) THIS INSURANCE IS ISSUED PURSUANT TO THE FLORIDA SURPLUS LINES LAW. PERSONS INSURED BY SURPLUS LINES CARRIERS DO NOT HAVE THE PROTECTION OF THE FLORIDA INSURANCE GUARANTY ACT TO THE EXTENT OF ANY RIGHT OF RECOVERY FOR THE OBLIGATION OF AN INSOLVENT UNLICENSED INSURER. SURPLUS LINES INSURERS’ POLICY RATES AND FORMS ARE NOT APPROVED BY ANY FLORIDA REGULATORY AGENCY. 3 ay an ee 4A yp Ge . YE. Lo LP cee : AUTHORIZED SIGNATURE: ___ ree t DATE SIGNED: __5/21/17 Surplus Lines Agent's Name: . Thomas C Poppell Ill Surplus Lines Agent's License? _A209654 Surplus Lines Agent's Address; 7131 Business Park Ln Suite 300, Lake Mary, FL'32746: : FRONTLINE WEBSITE: www.frontlineinsurance.com FRONTLINE EMAIL: info@flhi.com FIM-FL-WS-RDEC (04/16) INSUREDS COPY PAGE 1 OF 1Homeowners FIM 00 13 12 10 THIS ENDORSEMENT CHANGES THE POLICY — PLEASE READ IT CAREFULLY LIMITED FUNGI, WET OR DRY ROT, OR BACTERIA COVERAGE (FOR USE WITH FORM SCHEDULE * HO 00 03) “Fungi”, Wet Or Dry Rot, Or Bacteria Section | — Property Coverage Limit of Liability For the Additional Coverage “Fungi”, Wet Or Dry Rot, Or Bacteria ‘Section Il — Coverage E Aggregate Sublimit of Liability for Each Covered Loss $ Policy Aggregate $50,000 * Entries may be left blank if shown elsewhere in this policy for coverage. DEFINITIONS - = = The following Definition is added: “Fungi” a. “Fungi” means any type or form of fungus, including mold or mildew, and any mycotoxins, spores, scents or by-products produced or released by fungi. b, Under Section II, this does not include any fungi that are, are on, or are contained in, a good or product intended for consumption. SECTION = PROPERTY COVERAGES ADDITIONAL COVERAGES The following Additional Coverage 12. is added: 12. “Fungi”, Wet Or Dry Rot, Or Bacteria a. The amount shown in the Schedule above is the most we will pay for: (4) The total of all loss payable under Section | — Property Coverages caused by “fungi”, wet or dry rot, or bacteria; (2) The cost to remove “fungi”, wet or dry rot, or bacteria from property covered under Section | — Property Coverages; (3) The cost to tear out and replace any part of the building or other covered property as needed to gain access to the “fungi”, wet or dry rot, or bacteria; and (4) The cost of testing of air or property to confirm the absence, presence or level of “fungi”, wet or dry rot, or bacteria, whether performed prior to, during or after removal, FIM 00 13 12 10 repair, restoration or replacement. The cost of such testing will be provided only to the extent that there is a reason to believe that there is the presence of “fungi”, wet or dry rot, or bacteria. b. The coverage described in 12.a. only applies when such loss or costs are a result of a Peril Insured Against that occurs during the policy period and only if all reasonable means were used to save and preserve the property from further damage at and after the time the Peril Insured Against occurred. c. The Each Covered Loss amount shown in the Schedule for this coverage is the most we will pay for the total of all loss or costs payable under this Additional Coverage resulting from any one covered loss; and The Policy Aggregate amount shown in the Schedule for this coverage is the most we will pay for the total of all loss or costs payable under this Additional Coverage for all covered losses, regardless of the number of locations insured under this endorsement or number of claims made. d. If there is covered loss or damage to covered property, not caused, in whole or in part, by “fungi”, wet or dry rot, or bacteria, loss payment will not be limited by the terms of this Additional Coverage, except to the extent that “fungi”, wet or dry rot, or bacteria causes an increase in the loss. Any such increase in the loss will be subject to the terms of this Additional Coverage. This coverage does not increase the limit of liability applying to the damaged covered property. Page 1 of 2SECTION I- PERILS INSURED AGAINST COVERAGE A - DWELLING and COVERAGE B — OTHER STRUCTURES Paragraph 2.e.(3) is deleted and replaced by the following: (3) Smog, rust or other corrosion; The following paragraph 2.e.(9) is added: (9) Constant or repeated seepage or leakage of water or steam or the presence of condensation of humidity, moisture, or vapor aver a period of 14 or more days from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance. SECTION | - EXCLUSIONS The following Exclusion 1.i. is added: i. “Fungi”, Wet Or Dry Rot, Or Bacteria “Fungi”, wet or dry rot, or bacteria, meaning the presence, growth, proliferation, spread or any activity of “fungi”, wet or dry rot, or bacteria. This Exclusion does not apply: (1) When “fungi”, wet or dry rot, or bacteria results from fire or lightning; or (2) To the extent coverage is provided for in the “Fungi”, Wet Or Dry Rot, Or Bacteria Additional Coverage under Section | — Property Coverages with respect to loss caused by a Peril Insured Against other than fire or lightning. Direct loss by a Peril Insured Against resulting from “fungi”, wet or dry rot, or bacteria is covered. . SECTION Il - CONDITIONS 1. Limit of Liability is deleted and replaced by the following: 1. Limit of Liability Our total liability under Coverage E for all damages resulting from any one “occurrence” will not be more than the Coverage E limit of liability shown in the Declarations. This limit is the same regardless of the number of “insureds”, claims made or persons injured. All “bodily injury” and “property damage” tesulting from any one accident or from continuous or repeated exposure to substantially the same general harmful conditions will be considered to be the result of one “occurrence”. FIM 00 13 12 10 Homeowners FIM 00 13 12 10 Our total liability under Coverage F for all medical expense payable for “bodily injury” to one person as the result of one accident will not be more than the Coverage F limit of liability shown in the Declarations. However, our total liability under Coverage E for the total of all damages arising directly or indirectly, in whole or in part, out of the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of any “fungi”, wet or dry rot, or bacteria will not be more than the Section Il Coverage E Aggregate Sublimit of Liability for “Fungi”, Wet Or Dry Rot, Or Bacteria. This is the most we will pay regardless of the: (1) Number of locations insured under the policy to which this endorsement is attached; (2) Number of persons injured; (3) Number of persons whose property is damaged; (4) Number of “insureds”; or (5) Number of “occurrences” or claims made. This sublimit is within, but does not increase, the Coverage E limit of liability. It applies separately to each consecutive annual period and to any Temaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations. With respect to damages arising out of “fungi”, wet or dry rot, or bacteria described in 1. Limit of Liability of this endorsement: 2. Severability of Insurance is deleted and replaced by the following: 2. Severability of Insurance This insurance applies separately to each “insured” except with respect to the Aggregate Sublimit of Liability described in this endorsement under Section Il Conditions 1. Limit of Liability. This Condition will not increase the limit of liability for this coverage. SECTIONS | AND Il - CONDITIONS _ 4. Policy Period is deleted and replaced by the following: 41. Policy Period This policy applies only to loss or costs in Section | or “bodily injury” or “property damage” in Section Il, which occurs during the policy period. All other provisions of the policy apply. Page 2 of 2Homeowners FIM 00 17 12 10 THIS ENDORSEMENT CHANGES THE POLICY - PLEASE READ IT CAREFULLY ANIMAL LIABILITY EXCLUSION ENDORSEMENT SECTION Il — LIABILITY COVERAGES The following paragraph is added to COVERAGE E — PERSONAL LIABILITY We will NOT cover any damages caused by, arising out of or in connection with any animal owned or kept by any insured, tenant or guest whether or not the injury occurs on your premises or any other location. All other provisions and exclusions apply. The following paragraph is added to COVERAGE F — MEDICAL PAYMENTS TO OTHERS We will NOT cover any damages caused by, arising out of or in connection with any animal owned or kept by any insured, tenant or guest whether or not the injury occurs on your premises or any other location. All other provisions and exclusions apply. _ SECTION Il - ADDITIONAL COVERAGES - ae eee eee—eEeEseE_. The following is added to paragraph 3. Damage to Property of Others. f. Caused by, arising out of or in connection with any animal owned or kept by any insured, tenant or guest whether or not the injury occurs on your premises or any other location. All other provisions and exclusions apply. FIM 00 17 12 10 Page 1 of 1Homeowners FIM 00 19 09 09 THIS ENDORSEMENT CHANGES THE POLICY — PLEASE READ IT CAREFULLY SCREEN ENCLOSURE HURRICANE LIMITATION (FOR USE WITH ALL FORMS EXCEPT HO 00 04) Your policy is amended as follows for hurricane losses only. DEFINITIONS The following Definition is added: “Screen Enclosure” means any structure on the residence premises (regardless of whether it is attached to your dwelling) enclosed by screens on more than one side otherwise open to the weather, and not constructed and covered by the same or substantially the same materials as that of the dwelling where you reside. “SECTION | - PROPERTY COVERAGES COVERAGE A - DWELLING The following paragraph 3. is added: 3. We do not cover “screen enclosure(s)” as defined unless specified on the declarations page and for which an additional premium is paid. If an amount of coverage for “screen enclosure(s)” is listed on the declarations page, this amount is part of Coverage A and does not reduce your Coverage A limit of liability. COVERAGE B - OTHER STRUCTURES The following paragraph 3. is added: 3. We do not cover “screen enclosure(s)” as defined unless specified on the declarations page and for FIM 00 19 09 09 which an additional premium is paid. If an amount of coverage for “screen enclosure(s)” is listed on the declarations page, this amount is part of Coverage B and does not reduce your Coverage B limit of liability. SECTION 1 - CONDITIONS The following paragraphs 3.c. and 3.d. are added: c. “Screen enclosure(s)” as specified on the declarations page and for which an additional premium is paid, at replacement cost up to the amount shown on your declarations page for screen enclosures. d. A loss to your property reduces our liability limit by the amount of the loss under the appropriate coverage. Upon repair or replacement of the property, the limit will return to the limit shown on the declarations page. If the damaged property has only been partially repaired or replaced, the limit will be equal to the replaced or repaired value, but not more than the value shown on the declarations page. Any loss payments under this coverage will be subject to the calendar-year hurricane deductible as defined in your policy. In the event that other covered areas are also damaged, the hurricane deductible amount will be applied to all damage collectively. This can result in high out-of-pocket expenses for you in the event of a hurricane loss. Page 1 of 1THIS ENDORSEMENT CHANGES THE POLICY — PLEASE READ IT CAREFULLY ~~ “DEFINITIONS _ The following Definition is added: “Hurricane Occurrence” A “hurricane occurrence”: a. Begins at the time a hurricane watch or hurricane warning is issued for any part of Florida by the National Hurricane Center of the National Weather Service; b. Continues for the time period during which the hurricane conditions exist anywhere in Florida, and c. Ends 72 hours following the termination of the last hurricane watch or hurricane warning issued for any part of Florida by the National Hurricane Center of the National Weather Service. The following Definition is added: “Personal injury” means injury arising out of ‘one or more of the following offenses, but only if the offense was committed during the policy period: a. False arrest, detention or imprisonment; b. Malicious prosecution; The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization's goods, products or services; or e. Oral or written publication of material that violates a person's right of privacy. SECTION | - PROPERTY COVERAGES COVERAGE A - Dwelling is deleted and replaced by the following: We cover: 1. The dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling; 2. Materials and supplies located on or next to the “residence premises” used to construct, alter or repair the dwelling or other structures on the “residence premises;” and 3. In-ground swimming pools. FIM 00 23 10 11 Includes copyrighted material of Insurance Services Office, Inc., SPECIAL PROVISIONS — FLORIDA This coverage does not apply to land, including land ‘on which the dwelling is located, COVERAGE B - Other Structures is deleted and replaced by the following: We cover other structures on the “residence premises” set apart from the dwelling by clear space. This includes structures connected to the dwelling by only a fence, utility line, or similar connection. This coverage does not apply to in-ground swimming pools. This coverage does not apply fo land, including land ‘on which the other structures are located. We do not cover other structures: 4. Used in whole or in part for “business”; or 2. Rented or held for rental to any person not a tenant of the dwelling, unless used solely as a private garage. The limit of liability for this coverage will not be more than 10% of the limit of liability that applies to Coverage A. Use of this coverage does not reduce the Coverage A limit of liability. COVERAGE C - Personal Property Special Limits of Liability Item 2. is deleted and replaced by the following: 2. $1000 on securities, accounts, deeds, evidences of debt, letters of credit, notes other than bank notes, manuscripts, personal records, passports, tickets, stamps, trading cards and comic books, This dollar limit applies to these categories regardless of the medium (such