Express Damage Restoration, LLC, etc., Appellant, vs. First Community Insurance Company, Appellee.
No. 3D18-1952
Third District Court of Appeal State of Florida
December 9, 2020
Lower Tribunal No. 18-2084
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.
The Diener Firm, P.A., and Erik D. Diener (Plantation), for appellant.
Traub Lieberman Straus & Shrewsberry LLP., and Scot E. Samis and C. Ryan Jones (St. Petersburg), for appellee.
Before EMAS, C.J., and SCALES and LOBREE, JJ.
LOBREE, J.
Express Damage Restoration, LLC (the “assignee“) appeals from the trial
Factual and Procedural Background
The assignee contracted with the property owners of a commercial building to provide water mitigation services and conduct emergency repairs after water damage suffered in 2017. Upon the assignee‘s submission of invoices to the insurer, totaling $45,924.67, the latter accepted coverage but declined to pay in full, instead paying $11,234.31 and seeking appraisal as to the difference.
The assignee filed suit, initially under a breach of contract theory and, subsequently, seeking declaratory judgment. The assignee demanded a declaration that its invoices for work performed were not subject to appraisal, since they should not be interpreted as part of the “amount of loss,” as provided by the policy, relying in part on Weiss v. Insurance Co. of Pennsylvania, 497 So. 2d 285 (Fla. 3d DCA 1986), and Delisfort v. Progressive Express Insurance Co., 785 So. 2d 734 (Fla. 4th DCA 2001), overruled on other grounds by Allstate Insurance Co. v. Suarez, 833 So. 2d 762 (Fla. 2002). Additionally, the assignee sought a declaration that by failing to name the assignee as payee on any and all coverage checks issued in conjunction with the subject loss, the insurer breached the assignment.
At the hearing on the insurer‘s motion to dismiss, the trial court refused to consider the assignee‘s motion for summary judgment, although the insurer welcomed a ruling on it, arguing that the record evidence required its denial. The insurer primarily argued that, given the policy‘s language requiring the assignee‘s total compliance before bringing an action, as well as the policy‘s clear language requiring assignee‘s charges to be subject to appraisal as subsumed within the “amount of loss,” suit was “premature and must be dismissed [for] the appraisal . . . process [to] continue. . . .” The assignee responded that the phrase “amount of loss” was not defined in the policy and was subject to opposing interpretations. Ultimately, the trial court rejected the assignee‘s reading of the policy, finding: “the
Standard of Review
We review de novo an order dismissing a declaratory judgment count for failure to state a cause of action. People‘s Tr. Ins. Co. v. Franco, 45 Fla. L. Weekly D879 (Fla. 3d DCA Apr. 15, 2020) (quoting Romo v. Amedex Ins. Co., 930 So. 2d 643, 647 (Fla. 3d DCA 2006)). Such review is mandated because “the trial court rules on that motion as a matter of law.” Ribaya v. Bd. of Trs. of City of Pension Fund for Firefighters & Police Officers in City of Tampa, 162 So. 3d 348, 352 (Fla. 2d DCA 2015). Although the parties correctly note that such orders may also be reviewed for abuse of discretion, that is only when, pursuant to its gatekeeping functions, the trial court “dismiss[es] an action that technically states a cause of action when the circumstances do not justify using legal resources to try the factual issue and resolve the legal questions.” Id. at 353.
The assignee‘s only argument on appeal is that the trial court erred in dismissing the complaint “without entering a declaratory judgment addressing whether the policy contains an agreement to appraise an incurred expense,” and without entering a declaratory judgment regarding whether the insurer breached the assignment by paying benefits assigned to the assignee to the insured and waived any right to appraisal. This line of argument charges error to the trial court in reaching the merits of the suit instead of merely addressing the question of whether a cause of action was stated. However, the assignee also argues that it never waived its right to obtain a ruling on its summary judgment motion and that the trial court erred by dismissing the action instead of addressing its merits.
“A motion to dismiss a complaint for declaratory judgment is not a motion on the merits. Rather, it is a motion only to determine whether the plaintiff is entitled to a declaration of rights, not to whether it is entitled to a declaration in its favor.” Romo, 930 So. 2d at 648 (quoting Royal Selections, Inc. v. Fla. Dep‘t of Revenue, 687 So. 2d 893, 894 (Fla. 4th DCA 1997)). Upon review, the record shows that the assignee‘s complaint stated a cause of action for declaratory relief as to whether charge for its services fell under the category of “amount of loss” and was subject to appraisal. “This is an issue based upon construction of the policy language,” which “does not fall within the provision for appraisals.” Delisfort, 785 So. 2d at 735.
The insurer argues that the result reached by the trial court can be alternatively affirmed, since, as the Royal court explained, it would have been “appropriate to resolve this [type of] case on a motion for summary judgment or judgment on the pleadings.” Id. at 894. It observes that, had the trial court accepted the assignee‘s invitation to rule on its motion for summary judgment, the trial court could have denied it and found in favor of the insurer instead, since the amount due to the assignee for its mitigation services is encompassed by the “amount of loss” and is subject to appraisal. Cf. State Farm Fla. Ins. Co. v. Unlimited Restoration Specialists, Inc., 84 So. 3d 390, 393-94 (Fla. 5th DCA 2012) (quashing order
Even if correct,1 the insurer cannot profit from changing its position below, where it opposed in writing and at the hearing any consideration of the assignee‘s motion as violative of
Accordingly, we reverse and remand for further proceedings in conformity with this opinion.
LOBREE, J.