                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

UNITED WATER                           NOT FINAL UNTIL TIME EXPIRES TO
RESTORATION GROUP, INC.,               FILE MOTION FOR REHEARING AND
a/a/o ORAN WALKER,                     DISPOSITION THEREOF IF FILED

      Petitioner,                      CASE NO. 1D14-3797

v.

STATE FARM FLORIDA
INSURANCE COMPANY,

      Respondent.

___________________________/

Opinion filed July 8, 2015.

Petition for Writ of Certiorari—Original Jurisdiction.

Susan W. Fox of Fox & Loquasto, P.A., Orlando; Isabel Arias, of Cohen Battisti,
Winter Park, for Petitioner.

Scot E. Samis of Traub Lieberman Straus & Shrewberry LLP, St Petersburg, for
Respondent.


MAKAR, J.

      United Water Restoration Group, Inc., asks that we exercise our authority to

reinstate its complaint against State Farm Florida Insurance Company, which was

dismissed by the county court in an order affirmed by the circuit court. According to

the complaint, the home of Oran Walker—insured by State Farm—was damaged by

water in 2012. Walker entered into a remediation contract with United Water to repair
the damage, executing a written assignment of “any and all insurance rights, benefits

and proceeds” from his State Farm policy to United Water. After State Farm refused to

pay the $2,744.64 bill that United Water submitted, the latter sued the former for

breach of contract, alleging that United Water was an assignee of Walker’s rights and

benefits. Attached to the complaint were copies of the assignment and United Water’s

bill.

        State Farm moved to dismiss and for summary judgment, contending that it had

notified Walker it was denying coverage because an inspection of the home showed the

damage was consistent with “repeated leakage and seepage, mold, rot, and decay,

which are all specifically excluded under the policy.” It argued that the duty to satisfy

the conditions of coverage remained solely with Walker, who was required to contest

in court the denial of coverage, not United Water.

        After a hearing, the county court ruled that the “question of coverage pursuant to

the policy is one which the named Insured must bring before this Court and thus,

Plaintiff, United Water Restoration Group, Inc. as assignee cannot pursue the claim

before the Court.” The court granted State Farm’s motion to dismiss, a ruling affirmed

by the circuit court in a per curiam affirmed opinion. United Water petitions for relief

via certiorari in this Court.

        As an initial matter, we have jurisdiction to review a circuit court’s per curiam

affirmance of a county court’s final order. Fla. R. App. P. 9.030(b)(2)(B); see also Rich

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v. Fisher, 655 So. 2d 1149, 1150 (Fla. 5th DCA 1995) (“[c]ounty court litigants . . . are

not precluded from seeking review in the district court of appeal when the circuit court

affirms without opinion, nor are they limited by Article V [of the Florida

Constitution].”). See, e.g., State Farm Mut. Auto. Ins. Co. v. Edge Fam. Chiropractic,

P.A., 41 So. 3d 293, 294 (Fla. 1st DCA 2010) (addressing circuit court order that

consolidated three cases from county court and per curiam affirmed). In this second-

tier certiorari proceeding, we must determine whether procedural due process was

afforded and whether the correct law was applied. State Farm Fla., Ins. Co. v.

Unlimited Rest. Specialists, Inc., 84 So. 3d 390, 393 (Fla. 5th DCA 2012). Relief is

appropriate “only when there has been a violation of a clearly established principle of

law resulting in the miscarriage of justice.” Id. (internal citations and quotations

omitted).

      Relief for United Water is warranted for two reasons. First, due process was not

afforded because the county court granted the motion to dismiss by going beyond the

four corners of the complaint. See Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. 1st

DCA 2010). In effect, the dismissal order was based on State Farm’s defense that

coverage under its policy was unavailable, a ruling that went beyond whether United

Water’s complaint stated a claim. See Wilson v. Cnty. of Orange, 881 So. 2d 625, 629

(Fla. 5th DCA 2004) (“Dismissal should not be granted on the basis of an affirmative

defense, except when the face of the complaint is sufficient to demonstrate the

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existence of that defense.” ); Parkway Gen. Hosp., Inc. v. Allstate Ins. Inc., 393 So. 2d

1171, 1172 (Fla. 3d DCA 1981) (“The purpose of a motion to dismiss is to ascertain if

plaintiff has alleged a good cause of action, and the court must confine itself strictly to

allegations within the four corners of the complaint. Consideration of defendant’s

affirmative defenses or sufficiency of the evidence which plaintiff will likely produce

on the merits is wholly irrelevant and immaterial to deciding a motion to dismiss.”). As

a defense, whether Walker’ s loss was covered under the State Farm policy is a disputed

factual issue for later consideration.

      Second, dismissal of United Water’s complaint violated the clearly established

principles of law that an assignee of post-loss insurance benefits can sue for breach of

such benefits. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So. 2d 55,

57 (Fla. 2000) (“The right of an assignee to sue for breach of contract to enforce

assigned rights predates the Florida Constitution.”); see also Security First Ins. Co. v.

Dep’t of Fin. Servs., 40 Fla. L. Weekly D1449a (Fla. 1st DCA June 22, 2015) (post-

loss insurance claims are freely assignable without the consent of the insurer). The

assignee stands in the shoes of the assignor and is able to maintain suit in its own name

as the real party in interest, “that is the person in whom rests by substantive law, the

claim to be enforced.” Weiss v. Johnsen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005)

(internal citations omitted); see also Parkway Gen. Hosp., 393 So. 2d at 1172 (“Allstate

contends that a provider of medical services does not have a direct cause of action

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against the insurer of a patient for benefits payable to the patient . . . [t]his argument

has no application where there is an assignment of benefits by the insured to a third

party.” (citations omitted)). Thus, the county court’s ruling, affirmed by the circuit

court, that only the policy holder may sue to determine the coverage issue is incorrect

under clearly established principles of law. See, e.g., State Farm Fire & Cas. Co. v.

Ray, 556 So. 2d 811, 813 (Fla. 5th DCA 1990) (“An assignee may enforce payments or

the enforcement of an obligation due” under a policy.).

       Clearly established law permits United Water to bring suit to seek recovery

under the State Farm policy, and if necessary, seek a coverage determination. The

dismissal order had the harsh effect of barring United Water’s enforcement of its

bargained-for right to pursue assigned benefits, which amounts to a miscarriage of

justice.

       Petition GRANTED, and order QUASHED.

       WOLF, and OSTERHAUS, JJ., CONCUR.




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