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Filing # 71727718 E-Filed 05/04/2018 07:33:06 PM
IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. COSO-18-000124
G&R PLUMBING, INC. A/A/O JOHN
AND MARCI HAZELGROVE,
Plaintiff,
vs.
FLORIDA PENINSULA INSURANCE
COMPANY, a Florida corporation,
Defendant.
PLAINTIFF’S RESPONSE AND MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS FOR FAILURE
TO JOIN AN INDISPENSABLE PARTY
COMES NOW Plaintiff, G&R Plumbing, Inc. a/a/o John and Marci Hazel Grove, by and
through undersigned counsel, and submits this response and Memorandum of Law in Opposition
to Florida Peninsula Insurance Company’s (“Defendant”) Motion to Dismiss for Failure to Join an
Indispensable Party (the “Motion”), and in support thereof, states as follows:
I. STATEMENT OF THE FACTS
1. On or about September 10, 2017, John and Marci Hazelgrove (the “Insureds”)
suffered a loss at their property located at 8085 NW 71 Court, Tamarac, FL 33321 (the “Property”)
as a result of a sudden and accidental leak.
2. The Insureds hired Plaintiff to perform leak detection plumbing services in
exchange for an assignment of their rights, benefits and a cause of action under their insurance
policy, issued by Defendant. A true and correct copy of the Assignment of Benefits is attached
hereto and incorporated herein as Exhibit A.
#2256 - Plaintiff's Response to Motion to Dismiss Page | of 6
*4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 5/4/2018 7:33:05 PM.****3. Plaintiff, as assignee of these benefits, completed its leak detection plumbing
services and submitted its assignment of insurance benefits and reasonably priced invoice to
Defendant for review and payment.
4, Defendant denied Plaintiff's demand for payment and this cause of action by
Plaintiff as an assignee of the Insureds for Breach of Contract against the Defendant subsequently
ensued.
Il. STANDARD FOR MOTION TO DISMISS
5. When assessing the adequacy of the pleading of a claim under a Motion to Dismiss
standard, the court must accept the facts alleged therein as true and all inferences that reasonably
can be drawn from those facts must be drawn in favor of the pleader. Scott v. Progressive Express
Ins. Co., 932 So.2d 475, 477 (Fla. 4th DCA 2006); Almarante v. Art Institute of Fort Lauderdale,
Inc., 921 So.2d 703, 704 (Fla. 4th DCA 2006) (allegations considered in the light most favorable
to the Plaintiff).
6. In order to state a cause of action, a Complaint must allege sufficient ultimate facts
to show the pleader is entitled to relief. Taylor v. City of Rivera Beach, 801 So.2d 259, 262 (Fla.
4th DCA 2001).
7. Additionally, "the trial court must look only to the four corners of the Complaint,
and the allegations contained therein should be taken as true without regard to the pleader's ability
to prove the same." Inglasbe v. Stewart Agency, Inc., 869 So.2d 30, 35 (Fla. 4th DCA 2004).
8. As such, it is axiomatic that a Motion to Dismiss should not be used "to determine
issues of ultimate fact" and "may not act as a substitute for summary judgment.” Florida Farm
Bureau Gen. Ins. Co. v. Insurance Co. of North America, 763 So.2d 429, 432 (Fla. 5th DCA 2000);
#2256 - Plaintiff's Response to Amended Motion to Dismiss Page 2 of 6Roberts v. Children's Med. Sves., 751 So.2d 672, 673 (Fla. 2d DCA 2000); Holland v. Anheuser
Busch, Inc., 643 So.2d 621, 622-23 (Fla. 2d DCA 1994).
TI. SUMMARY OF DEFENDANT’S ARGUMENT
9. Defendant’s Motion to Dismiss argues that “[the Insureds] are indispensable parties
to the instant action as they are the named insureds and suffered the alleged loss.” See Defendant's
Motion to Dismiss, 5.
10. This argument fails as a matter of law because it ignores a century of case law
recognizing the validity and enforceability of assignment of post loss insurance benefits, which
clearly establishes the assignors (here, the Insureds) retain no interest in the portion of the
insurance claim they validly assign to an assignee (here, the Plaintiff).
1. Defendant attempts to bolster its flawed argument by citing Space Coast Credit
Union v. Walt Disney World Co. Interestingly enough, Defendant’s own paragraph introducing
Space Coast belies the flaws in Defendant’s argument: “all parties with an interest or assignment
in part of a debt must be joined in any action to recover such debt” (emphasis added). See
Defendant's Motion to Dismiss, 7.
12. It appears Defendant wants this Honorable Court to confuse a debt and an
insurance benefit due pursuant to an insurance contract.
13. Similarly, Defendant wishes to confuse the issue by suggesting the Insureds still
retain an interest in the outcome of Plaintiff's case.
14. Unfortunately for Defendant, Space Coast is of no consequence in the instant action
as we are not dealing with a debt or debt collection, nor do the Insureds retain any interest on the
portion of the insurance Claim that they assigned to Plaintiff, pursuant to well-established case law
and the language of the Assignment of Benefits.
#2256 - Plaintiff's Response to Amended Motion to Dismiss Page 3 of 6IV. PLAINTIFF'S LEGAL ARGUMENT AND INCORPORATED MEMORANDUM
OF LAW
Plaintiff Has Sole Right and Standing to Pursue its Claim for Benefits for the Work
Performed and the Insureds are Therefore Not Indispensable Parties
15. | When a party agrees to perform emergency services and receives an assignment of
benefits as consideration for the services to be performed, the assignment of benefits is
"irrevocable" upon completion of the services. State Farm Fire & Casualty Co. v. Ray, 556 So.2d
811, 813 (Fla. Dist. Ct. App. 5th Dist. 1990).
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. Sth DCA 2005) (quoting Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr., 864
So.2d 55, 58 (Fla. Sth DCA 2003)); Cont'l Cas. Co. v. Ryan Inc. Eastern, 974 So.2d 368, 376 (Fla.
2008). Only one entity "owns" the cause of action against an insurer at any one time and the one
that owns the claim must bring the action if an action is brought. See Garcia v. State Farm Mut.
Auto. Ins. Co., 766 So.2d 430 (Fla. 5th DCA 2000); Livingston v. State Farm Mut. Auto. Ins. Co.,
774 So.2d 716 (Fla. 2d DCA 2000).
17, An insured lacks standing to maintain a direct action against an insurer when the
insured assigns his rights under the insured's contract to a medical provider. Oglesby v. State Farm
Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001).
18. Thus, under Florida law, the assignee is the only person who owns an insurance
claim after an assignment has occurred. Id.; Rose Radiology Centers, Inc. (a/a/o David Hill) v.
Progressive Auto Pro Ins. Co., 12 Fla. L. Weekly Supp. 1091a (Fla. 13th Jud. Circ. Hillsborough
County Ct. August 18, 2005), Cletrus Smith v. State Farm, 14 Fla. L. Weekly Supp. 810b (6th Jud.
Cir. Appell. Ct., July 9, 2007). Plaintiff is the only entity who owns the claim and therefore is the
only party entitled to bring a cause of action for the value of the services it performed.
#2256 - Plaintiff's Response to Amended Motion to Dismiss Page 4 of 619. In this case, Plaintiff obtained an assignment of insurance benefits for any proceeds
towards services rendered and/or to be rendered by Plaintiff for necessary and reasonable repair
services.
20. By virtue of this assignment of benefits, Plaintiff has sought payment for its
services from the Defendant directly.
21. Plaintiff, and Plaintiff only, has the right to bring this action against Defendant for
failing to pay for Plaintiff's services. Contrary to what Defendant would have this Honorable
Court believe, the Insureds are estopped from bringing the same action against Defendant, as both
long standing Florida law establishes and as the Insureds’ willingness to sign the Assignment of
Benefits suggests.
22. If Defendant would suggest that the Insureds intend to or have already pursued the
same claim against Defendant for Plaintiff’s services, proving so would require extrinsic evidence
that may not be considered at this stage.
23. Therefore, the facts and circumstances in the instant action leave no doubt that the
Insureds are by no means necessary parties to this action.
24. Further, should this Honorable Court determine that the Insureds are indeed
indispensable, it is by no means a fatal defect which may not be corrected and would warrant a
dismissal, but rather an opportunity for Plaintiff to amend the Complaint in accordance with this
Court’s ruling.
WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests that this
Honorable Court enter an Order DENYING Defendant's Motion to Dismiss with Prejudice,
awarding reasonable fees and costs to Plaintiff for having to respond to Defendant’s baseless
Motion, and awarding any other such relief as this Honorable Court deems just and proper.
#2256 - Plaintiff's Response to Amended Motion to Dismiss Page 5 of 6CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 4, 2018, a true and correct copy of the foregoing was
emailed to: Danielle V. Bullock, Esgq.,
kpurdy@colodnyfass.com.
#2256 - Plaintiff's Response to Amended Motion to Dismiss
dbullock@colodnyfass.com; Karen Purdy,
Respectfully submitted,
/s/ Yemil Aragon
Florida Professional Law Group, PLLC
Yemil Aragon, Esq.
Florida Bar No. 110322
4600 Sheridan St., Suite 303
Hollywood, FL 33021
Tel. (954) 284-0900
Fax. (954) 284-0747
E-mail: yaragon@flplg.com
E-mail: eservice@flplg.com
Attorneys for Plaintiff, G&R Plumbing, Inc.
a/a/o John and Marci Hazelgrove
Page 6 of 62765 N.W, 84 Terrace
sy G & R Plumbing, Inc. Cooper City, FL 33024
State License CFC 033812 (954)822-3614
AUTHORIZATION FOR INFORMATION ON ACCOUNT & ASSIGMENT
OF INSURANCE BENEFITS, DIRECT PAY
& POWER OF ATTORNEY
iwi, “Ses i 4 cel cou, am/are the policy holder(s) for
Policy Number (“Policy”) Claim Number
With the Fiacs ta p, RIAs Set la insurance company (“Insurer”)
Insurance company phone # Fax #
Agent Name Agent Phone #
Adjuster Name Adjuster Phone #
G & R Plumbing, Inc. (“Contractor”) has provided or will provide services to me/us in connection
with a loss that is believed to be covered by the “Policy.” In exchange for providing those services
\/we have provided this Release, Assignment, Direction and Power of Attorney.
1. Release information. I/we hereby direct my Insurer referenced above to release any and ail
information requested by Contractor, its representative, or its attorney for the purpose of
obtaining benefits to be paid tor services rendered and in this regard | waive my privacy
tights.
2. Assignment. In consideration for the work performed, or to be pertormed by Contractor,
\/we hereby assign to Contractor the benefits and causes of action under the Policy which
are applicable to pay for the work performed or to be performed by Contractor as a result
of the loss.
3. Direct Payment. |/we authorize and direct Insurer to make direct payment to Contractor for
the amounts due to it.
4, Power of Attorney. | /we authorize and grant Contractor power of attorney to endorse
check(s) from Insurer for me and appoint Contractor as my true and lawful attorney in fact
to act in my place for the purpose of endorsing and depositing checks issued by Insurer to
pay for services provided. I/we indemnify and hold Contractor harmless for doing so.
5. Interest. |/we understand that if payment is not made within 90 days interest will accrue
from the date the services were provided at the rate of 1.5% per month
6. Travel Time. A minimum of 1 hour travel time will be charged at the rate of $125 per hour
{4 Art plumbers ana 985 per hour for assistants.
\/MBrganty, Parts & labor for the services provided are warragted for 90 days.
| yan
Laces Haples cow @ 4 fiBlI2
7
: Of
% Plumbine. inc, Gaod/ General information /2015-6-1 Assignment of Benefits (AOR) - G & R Plumbing, Inc. Temp.
Feuer 2G-2673342
Preview
Filing # 71727718 E-Filed 05/04/2018 07:33:06 PM IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. COSO-18-000124 G&R PLUMBING, INC. A/A/O JOHN AND MARCI HAZELGROVE, Plaintiff, vs. FLORIDA PENINSULA INSURANCE COMPANY, a Florida corporation, Defendant. PLAINTIFF’S RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO JOIN AN INDISPENSABLE PARTY COMES NOW Plaintiff, G&R Plumbing, Inc. a/a/o John and Marci Hazel Grove, by and through undersigned counsel, and submits this response and Memorandum of Law in Opposition to Florida Peninsula Insurance Company’s (“Defendant”) Motion to Dismiss for Failure to Join an Indispensable Party (the “Motion”), and in support thereof, states as follows: I. STATEMENT OF THE FACTS 1. On or about September 10, 2017, John and Marci Hazelgrove (the “Insureds”) suffered a loss at their property located at 8085 NW 71 Court, Tamarac, FL 33321 (the “Property”) as a result of a sudden and accidental leak. 2. The Insureds hired Plaintiff to perform leak detection plumbing services in exchange for an assignment of their rights, benefits and a cause of action under their insurance policy, issued by Defendant. A true and correct copy of the Assignment of Benefits is attached hereto and incorporated herein as Exhibit A. #2256 - Plaintiff's Response to Motion to Dismiss Page | of 6 *4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 5/4/2018 7:33:05 PM.****3. Plaintiff, as assignee of these benefits, completed its leak detection plumbing services and submitted its assignment of insurance benefits and reasonably priced invoice to Defendant for review and payment. 4, Defendant denied Plaintiff's demand for payment and this cause of action by Plaintiff as an assignee of the Insureds for Breach of Contract against the Defendant subsequently ensued. Il. STANDARD FOR MOTION TO DISMISS 5. When assessing the adequacy of the pleading of a claim under a Motion to Dismiss standard, the court must accept the facts alleged therein as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader. Scott v. Progressive Express Ins. Co., 932 So.2d 475, 477 (Fla. 4th DCA 2006); Almarante v. Art Institute of Fort Lauderdale, Inc., 921 So.2d 703, 704 (Fla. 4th DCA 2006) (allegations considered in the light most favorable to the Plaintiff). 6. In order to state a cause of action, a Complaint must allege sufficient ultimate facts to show the pleader is entitled to relief. Taylor v. City of Rivera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001). 7. Additionally, "the trial court must look only to the four corners of the Complaint, and the allegations contained therein should be taken as true without regard to the pleader's ability to prove the same." Inglasbe v. Stewart Agency, Inc., 869 So.2d 30, 35 (Fla. 4th DCA 2004). 8. As such, it is axiomatic that a Motion to Dismiss should not be used "to determine issues of ultimate fact" and "may not act as a substitute for summary judgment.” Florida Farm Bureau Gen. Ins. Co. v. Insurance Co. of North America, 763 So.2d 429, 432 (Fla. 5th DCA 2000); #2256 - Plaintiff's Response to Amended Motion to Dismiss Page 2 of 6Roberts v. Children's Med. Sves., 751 So.2d 672, 673 (Fla. 2d DCA 2000); Holland v. Anheuser Busch, Inc., 643 So.2d 621, 622-23 (Fla. 2d DCA 1994). TI. SUMMARY OF DEFENDANT’S ARGUMENT 9. Defendant’s Motion to Dismiss argues that “[the Insureds] are indispensable parties to the instant action as they are the named insureds and suffered the alleged loss.” See Defendant's Motion to Dismiss, 5. 10. This argument fails as a matter of law because it ignores a century of case law recognizing the validity and enforceability of assignment of post loss insurance benefits, which clearly establishes the assignors (here, the Insureds) retain no interest in the portion of the insurance claim they validly assign to an assignee (here, the Plaintiff). 1. Defendant attempts to bolster its flawed argument by citing Space Coast Credit Union v. Walt Disney World Co. Interestingly enough, Defendant’s own paragraph introducing Space Coast belies the flaws in Defendant’s argument: “all parties with an interest or assignment in part of a debt must be joined in any action to recover such debt” (emphasis added). See Defendant's Motion to Dismiss, 7. 12. It appears Defendant wants this Honorable Court to confuse a debt and an insurance benefit due pursuant to an insurance contract. 13. Similarly, Defendant wishes to confuse the issue by suggesting the Insureds still retain an interest in the outcome of Plaintiff's case. 14. Unfortunately for Defendant, Space Coast is of no consequence in the instant action as we are not dealing with a debt or debt collection, nor do the Insureds retain any interest on the portion of the insurance Claim that they assigned to Plaintiff, pursuant to well-established case law and the language of the Assignment of Benefits. #2256 - Plaintiff's Response to Amended Motion to Dismiss Page 3 of 6IV. PLAINTIFF'S LEGAL ARGUMENT AND INCORPORATED MEMORANDUM OF LAW Plaintiff Has Sole Right and Standing to Pursue its Claim for Benefits for the Work Performed and the Insureds are Therefore Not Indispensable Parties 15. | When a party agrees to perform emergency services and receives an assignment of benefits as consideration for the services to be performed, the assignment of benefits is "irrevocable" upon completion of the services. State Farm Fire & Casualty Co. v. Ray, 556 So.2d 811, 813 (Fla. Dist. Ct. App. 5th Dist. 1990). 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. Sth DCA 2005) (quoting Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr., 864 So.2d 55, 58 (Fla. Sth DCA 2003)); Cont'l Cas. Co. v. Ryan Inc. Eastern, 974 So.2d 368, 376 (Fla. 2008). Only one entity "owns" the cause of action against an insurer at any one time and the one that owns the claim must bring the action if an action is brought. See Garcia v. State Farm Mut. Auto. Ins. Co., 766 So.2d 430 (Fla. 5th DCA 2000); Livingston v. State Farm Mut. Auto. Ins. Co., 774 So.2d 716 (Fla. 2d DCA 2000). 17, An insured lacks standing to maintain a direct action against an insurer when the insured assigns his rights under the insured's contract to a medical provider. Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001). 18. Thus, under Florida law, the assignee is the only person who owns an insurance claim after an assignment has occurred. Id.; Rose Radiology Centers, Inc. (a/a/o David Hill) v. Progressive Auto Pro Ins. Co., 12 Fla. L. Weekly Supp. 1091a (Fla. 13th Jud. Circ. Hillsborough County Ct. August 18, 2005), Cletrus Smith v. State Farm, 14 Fla. L. Weekly Supp. 810b (6th Jud. Cir. Appell. Ct., July 9, 2007). Plaintiff is the only entity who owns the claim and therefore is the only party entitled to bring a cause of action for the value of the services it performed. #2256 - Plaintiff's Response to Amended Motion to Dismiss Page 4 of 619. In this case, Plaintiff obtained an assignment of insurance benefits for any proceeds towards services rendered and/or to be rendered by Plaintiff for necessary and reasonable repair services. 20. By virtue of this assignment of benefits, Plaintiff has sought payment for its services from the Defendant directly. 21. Plaintiff, and Plaintiff only, has the right to bring this action against Defendant for failing to pay for Plaintiff's services. Contrary to what Defendant would have this Honorable Court believe, the Insureds are estopped from bringing the same action against Defendant, as both long standing Florida law establishes and as the Insureds’ willingness to sign the Assignment of Benefits suggests. 22. If Defendant would suggest that the Insureds intend to or have already pursued the same claim against Defendant for Plaintiff’s services, proving so would require extrinsic evidence that may not be considered at this stage. 23. Therefore, the facts and circumstances in the instant action leave no doubt that the Insureds are by no means necessary parties to this action. 24. Further, should this Honorable Court determine that the Insureds are indeed indispensable, it is by no means a fatal defect which may not be corrected and would warrant a dismissal, but rather an opportunity for Plaintiff to amend the Complaint in accordance with this Court’s ruling. WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests that this Honorable Court enter an Order DENYING Defendant's Motion to Dismiss with Prejudice, awarding reasonable fees and costs to Plaintiff for having to respond to Defendant’s baseless Motion, and awarding any other such relief as this Honorable Court deems just and proper. #2256 - Plaintiff's Response to Amended Motion to Dismiss Page 5 of 6CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 4, 2018, a true and correct copy of the foregoing was emailed to: Danielle V. Bullock, Esgq., kpurdy@colodnyfass.com. #2256 - Plaintiff's Response to Amended Motion to Dismiss dbullock@colodnyfass.com; Karen Purdy, Respectfully submitted, /s/ Yemil Aragon Florida Professional Law Group, PLLC Yemil Aragon, Esq. Florida Bar No. 110322 4600 Sheridan St., Suite 303 Hollywood, FL 33021 Tel. (954) 284-0900 Fax. (954) 284-0747 E-mail: yaragon@flplg.com E-mail: eservice@flplg.com Attorneys for Plaintiff, G&R Plumbing, Inc. a/a/o John and Marci Hazelgrove Page 6 of 62765 N.W, 84 Terrace sy G & R Plumbing, Inc. Cooper City, FL 33024 State License CFC 033812 (954)822-3614 AUTHORIZATION FOR INFORMATION ON ACCOUNT & ASSIGMENT OF INSURANCE BENEFITS, DIRECT PAY & POWER OF ATTORNEY iwi, “Ses i 4 cel cou, am/are the policy holder(s) for Policy Number (“Policy”) Claim Number With the Fiacs ta p, RIAs Set la insurance company (“Insurer”) Insurance company phone # Fax # Agent Name Agent Phone # Adjuster Name Adjuster Phone # G & R Plumbing, Inc. (“Contractor”) has provided or will provide services to me/us in connection with a loss that is believed to be covered by the “Policy.” In exchange for providing those services \/we have provided this Release, Assignment, Direction and Power of Attorney. 1. Release information. I/we hereby direct my Insurer referenced above to release any and ail information requested by Contractor, its representative, or its attorney for the purpose of obtaining benefits to be paid tor services rendered and in this regard | waive my privacy tights. 2. Assignment. In consideration for the work performed, or to be pertormed by Contractor, \/we hereby assign to Contractor the benefits and causes of action under the Policy which are applicable to pay for the work performed or to be performed by Contractor as a result of the loss. 3. Direct Payment. |/we authorize and direct Insurer to make direct payment to Contractor for the amounts due to it. 4, Power of Attorney. | /we authorize and grant Contractor power of attorney to endorse check(s) from Insurer for me and appoint Contractor as my true and lawful attorney in fact to act in my place for the purpose of endorsing and depositing checks issued by Insurer to pay for services provided. I/we indemnify and hold Contractor harmless for doing so. 5. Interest. |/we understand that if payment is not made within 90 days interest will accrue from the date the services were provided at the rate of 1.5% per month 6. Travel Time. A minimum of 1 hour travel time will be charged at the rate of $125 per hour {4 Art plumbers ana 985 per hour for assistants. \/MBrganty, Parts & labor for the services provided are warragted for 90 days. | yan Laces Haples cow @ 4 fiBlI2 7 : Of % Plumbine. inc, Gaod/ General information /2015-6-1 Assignment of Benefits (AOR) - G & R Plumbing, Inc. Temp. Feuer 2G-2673342