Opinion
<b>No. </b>4D2022-2806
12-20-2023
The KIDWELL GROUP, LLC, d/b/a Air Quality Assessors of Florida, a/a/o Jose Linares and Celia Linares, Appellant, v. SAFEPOINT INSURANCE COMPANY, Appellee.
Larry Moskowitz of Larry Moskowitz, P.A., Fort Lauderdale, for appellant. Patrick M. Chidnese and Frieda C. Lindroth of Bickford & Chidnese, LLP, Tampa, for appellee.
Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; Tabitha Blackmon, Judge; L.T. Case No. COINX-22-027241.
Larry Moskowitz of Larry Moskowitz, P.A., Fort Lauderdale, for appellant.
Patrick M. Chidnese and Frieda C. Lindroth of Bickford & Chidnese, LLP, Tampa, for appellee.
Levine, J.
The trial court dismissed a claim filed by appellant, as assignee of benefits under a homeowner’s insurance policy, for breach of contract against appellee, the insurer, finding that an invoice failed to satisfy section 627.7152(2)(a), Florida Statutes (2021), because the invoice was unexecuted. Section 627.7152(2)(a) requires that an assignment agreement be executed and contain an itemized, per-unit cost estimate of the services to be performed. We find that, taking the allegations in the amended complaint as true, as required when considering a motion to dismiss, the invoice was provided with, and fully incorporated into, the executed assignment agreement. Thus, for purposes of ruling on the motion to dismiss, the invoice should have been treated as part of the executed assignment agreement, and the trial court erred by finding that the invoice should have been separately executed. Accordingly, we reverse and remand for further proceedings.
Appellant sued the insurer for breach of contract for failure to pay a $3,000 claim. The amended complaint alleged that appellant and the insureds entered into an assignment agreement for "forensic engineering services with incorporated written, itemized, per unit cost invoice in the amount of $3,000." An assignment agreement and an invoice, both dated December 29, 2021, were attached to the amended complaint. The assignment agreement stated that "an itemized per unit cost estimate/invoice has been provided with this contract and is fully incorporated herein." The assignment agreement contained a "Good Faith Itemized Per-Unit Cost Estimate" with a list of services and costs with a checkmark next to one service: "Engineer Report with Repair Plan = $3,000 +." The invoice contained a price of $3,000 for an "Engineer Report from State Licensed Professional Engineer."
The assignment agreement is attached to this opinion as Appendix 1, and the invoice is attached as Appendix 2.
The insurer moved to dismiss, arguing the separate invoice was not executed and did not satisfy section 627.7152(2)(a), Florida Statutes (2021). In support, the insurer relied on Kidwell Group, LLC v. United Property & Casualty Insurance Co., 343 So. 3d 97 (Fla. 4th DCA 2022). Appellant responded that the signature on the assignment agreement complied with the statute and that the invoice was contemporaneous with and part of the assignment agreement.
The trial court dismissed the amended complaint with prejudice, stating:
The invoice attached to the amended complaint is unexecuted by the assignor and therefore fails to comply with F.S. 627.7152. This Court is bound by the 4th DCA’s decision in The Kidwell Group, LLC, d/b/a Air Quality Assessors of Florida a/a/o Ben Kikovitz [Kivovitz] v. UNITED PROPERTY & Casualty Insurance Company, 343 So. 3d 97 (4th DCA 2022), where the Court held, in part, that an unexecuted invoice is invalid.
Appellant argues the trial court erred in failing to construe the invoice as part of the assignment agreement where the assignment agreement stated that "an itemized per unit cost estimate/invoice has been provided with this contract and is fully incorporated herein." The insurer responds that this statement did not incorporate the invoice by reference; rather, it referred to a different document, that being the "Good Faith Itemized Per-Unit Cost Estimate."
An order granting a motion to dismiss is reviewed de novo. Rhiner v. Koyama, 327 So. 3d 314, 316 (Fla. 4th DCA 2021). Issues of statutory interpretation are also reviewed de novo. Therlonge v. State, 184 So. 3d 1120, 1121 (Fla. 4th DCA 2015).
[1, 2] "A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues, and the allegations of the complaint must be taken as true and all reasonable inferences therefrom construed in favor of the non-moving party." The Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006). When ruling on a motion to dismiss, the trial court is limited to the four corners of the complaint, including the exhibits attached to it. Haslett v. Broward Health Imperial Point Med. Ctr., 197 So. 3d 124, 127 (Fla. 4th DCA 2016).
Pursuant to section 627.7152, Florida Statutes (2021), an assignment agreement must comply with certain requirements. Pertinent to the issue on appeal, an assignment agreement must "[b]e in writing and executed by and between the assignor and the assignee" and "[c]ontain a written, itemized, per-unit cost estimate of the services to be performed by the assignee." § 627.7152(2)(a)(1), (4), Fla. Stat. (2021). "An assignment agreement that does not comply with this subsection is invalid and unenforceable." § 627.7152(2)(d), Fla. Stat. (2021).
For insurance policies issued after January 1, 2023, the Florida Legislature has declared all assignments to be void, invalid, and unenforceable. § 627.7152(13), Fla. Stat. (2023).
[3] In the instant case, at this juncture, the trial court erred in failing to construe the invoice as part of the assignment agreement. The amended complaint alleged that appellant and the insureds entered into an assignment agreement for "forensic engineering services with incorporated written, itemized, per unit cost invoice in the amount of $3,000." (emphasis added). Both the assignment agreement and invoice were attached to the amended complaint, and both were dated December 29, 2021. Additionally, the assignment agreement stated that "an itemized per unit cost estimate/invoice has been provided with this contract and is fully incorporated herein." (emphasis added).
[4] Taking the allegations in the amended complaint and attachments thereto in a light most favorable to appellant, the invoice was provided with, and fully incorporated into, the assignment agreement. "It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing." OBS Co. v. Pace Constr. Corp., 558 So. 2d 404, 406 (Fla. 1990). Because the invoice was incorporated into the executed assignment agreement, the invoice did not need a separate signature in order to withstand a motion to dismiss. See Cavallaro v. Stratford Homes, Inc., 784 So. 2d 619, 622 (Fla. 5th DCA 2001) (stating that "[i]n order for documents to be read in conjunction with each other …, there must be some reference to the unsigned writing in the signed writing") (citation and internal quotation marks omitted); First Guar. Corp. v. Palmer Bank & Tr. Co. of Fort Myers, N.A., 405 So. 2d 186, 188 (Fla. 2d DCA 1981) ("[S]everal writings, only one of which is signed, may be aggregated … , provided the signed writing expressly or implicitly refers to the unsigned document.").
The trial court’s reliance on Kidwell was misplaced because, in that case, the invoice was dated five days after the assignment agreement, and there was no allegation in Kidwell that the invoice was incorporated into the assignment agreement. 343 So. 3d at 98. Here, in contrast, the invoice and assignment agreement were dated the same day, and appellant alleged the assignment agreement incorporated the invoice.
[5] The insurer advances two alternative grounds for affirmance. First, the insurer argues that the assignment agree- ment and invoice were generic and did not describe specific services. The cases the insurer relies on are distinguishable because those cases involved only a general list for services that could be performed, without any indication of what services were estimated to be performed. See Total Care Restoration, LLC v. Citizens Prop. Ins. Corp., 357 So. 3d 1260 (Fla. 3d DCA 2023); Air Quality Experts Corp. v. Family Sec. Ins. Co., 351 So. 3d 32 (Fla. 4th DCA 2022). In contrast, here the service was sufficiently detailed because it listed a single service of an engineer report with an estimated cost of $3,000. See MVP Plumbing, Inc. v. Citizens Prop. Ins. Corp., 359 So. 3d 885, 885 (Fla. 3d DCA 2023) (finding a service sufficiently detailed where "the assignment expressly contemplated appellant would perform a single service, a pipe inspection, for the estimated cost of $750").
[6] Second, the insurer argues that the preparation of a report is not a covered loss. However, this not an issue that can be resolved at the motion to dismiss stage of the proceedings. Whether the engineering report falls within the scope of the policy depends on whether it was used for the repair or replacement of the damaged property. See People’s Tr. Ins. Co. v. Kidwell Grp., LLC, 363 So. 3d 1108 (Fla. 4th DCA 2023) (resolving at trial the issue of whether an engineering report for $3,500 was a covered loss under the policy).
In summary, because at this juncture the invoice should have been considered as part of the executed assignment agreement, the invoice did not require a separate execution to satisfy section 627.7152(2)(a). As such, we reverse the dismissal and remand for further proceedings.
Reversed and remanded for further proceedings.
May and Artau, JJ., concur.
APPENDIX 1
376 So.3d 53.bmp
376 So.3d 54.bmp
APPENDIX 2
376 So.3d 55.bmp