              DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                    FOURTH DISTRICT

    RESTORATION 1 OF PORT ST. LUCIE, a/a/o JOHN and LIZA SQUITIERI,
                              Appellant,

                                            v.

                        ARK ROYAL INSURANCE COMPANY,
                                   Appellee.

                                    No. 4D17-1113

                                  [September 5, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie
County; Janet Croom, Judge; L.T. Case No. 562016CA002098.

   Scott Millard of Cohen Grossman, Maitland, and Gray R. Proctor of Fox &
Loquasto, P.A., Richmond, Virginia, for appellant.

   Kenneth B. Bell and Lauren V. Purdy of Gunster, Yoakley & Stewart, P.A.,
Tallahassee, for appellee.

FORST, J.

   Appellant Restoration 1 of Port St. Lucie sued appellee Ark Royal Insurance
Company for breach of contract and sought a declaratory judgment determining
that a clause in an insurance contract requiring the signatures of all insureds
and mortgagees for an assignment of benefits violated Florida law. Ark Royal
successfully moved to dismiss the complaint. Restoration 1 now appeals the
dismissal order, arguing that Ark Royal’s anti-assignment provision was illegal.1
As explained below, we disagree and therefore affirm.

                                      Background

   The facts of this case are straightforward. In 2012, Ark Royal issued a
homeowner’s insurance policy to John and Liza Squitieri (“the insureds”). The
policy contains a condition that “[n]o assignment of claim benefits, regardless of
whether made before a loss or after a loss, shall be valid without the written
consent of all ‘insureds,’ all additional insureds, and all mortgagee(s) named in
this policy.” The policy names PNC Bank, N.A. as a mortgagee.



1   We summarily affirm the two other issues raised by Restoration 1 on appeal.
   Approximately four years later, the insureds’ home suffered water damage.
Mrs. Squitieri, without the consent of her husband or the mortgagee, contracted
with Restoration 1 to provide cleanup services and signed an assignment of
benefits agreement assigning “any and all insurance rights, benefits, proceeds
and any cause of action under any applicable insurance policies” to Restoration
1.

   Restoration 1 subsequently completed the clean-up work and submitted a
claim to Ark Royal for $20,305.74. Ark Royal refused to pay the full amount of
the claim, stating it was unable to recognize the assignment because “[t]he
portion assigning benefits from your claim does not have all the required
signatures.”

   Consequently, Restoration 1 sued Ark Royal for breach of contract and sought
a declaratory judgment determining that a clause requiring the signatures of all
insureds and mortgagees for an assignment contravened Florida public policy.
Ark Royal moved to dismiss, arguing the assignment was invalid pursuant to
Ark Royal’s insurance policy agreement with the insureds. Restoration 1 filed a
response and a cross-motion for partial summary judgment.

   The trial court granted Ark Royal’s motion to dismiss on the basis that “the
Assignment of Benefits fails to comply with the subject policy’s unambiguous
condition that claims assignments be executed by all insureds and mortgagees.”
Restoration 1’s appeal followed.

                                    Analysis

    We review the granting of a motion to dismiss de novo. Habitat II Condo., Inc.
v. Kerr, 948 So. 2d 809, 811 (Fla. 4th DCA 2007).

   I.    West Florida Grocery

   Restoration 1 argues that the trial court’s dismissal of its breach of contract
claim and declaratory judgment action should be reversed because the
restriction against assignment violates a common law rule in this state, as
pronounced by our Florida Supreme Court over one hundred years ago in West
Florida Grocery Co. v. Teutonia Fire Insurance Co., 77 So. 209 (Fla. 1917). There,
the supreme court recognized the “well-settled rule that the provision in a policy
relative to the consent of the insurer to the transfer of an interest therein does
not apply to an assignment after loss.” Id. at 210-11. The court thus held that
because the insureds were trying to assign their post-loss benefits, in which the
insurer did not have an interest, “such consent [by the insurer] was not
necessary to its validity, [and so,] the condition was superfluous.” Id. at 211.

   In rebuttal, Ark Royal explains that the exception set forth in West Florida

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Grocery is simply that an insurance company cannot condition an assignment
of rights upon the insurer’s consent. A significant difference exists between
requiring the insurer’s consent and requiring the consent of the insureds and
mortgagees. Ark Royal argues against extending this “narrow common law
exception” to create a new public policy rule that prohibits any burden on any
assignment whatsoever. It maintains that the Florida Legislature, and not the
courts, is best suited for making public policy determinations.

    In fact, the parties do not disagree that a contractual “blanket” ban on all
assignments would be impermissible. See Better Constr., Inc. v. Nat’l Union Fire
Ins. Co. of Pittsburgh, 651 So. 2d 141, 142 (Fla. 3d DCA 1995). Nor do they
disagree that Florida courts have continually declined to enforce insurance
contract provisions that, like in West Florida Grocery, require insurer consent for
an assignment of benefits, finding “that post-loss insurance claims are freely
assignable without the consent of the insurer.” See Start to Finish Restoration,
LLC v. Homeowners Choice Prop. & Cas. Ins. Co., 192 So. 3d 1275, 1276 (Fla. 2d
DCA 2016) (quoting Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co., 185
So. 3d 638, 643 (Fla. 2d DCA 2016)); see also Sec. First Ins. Co. v. State, Office
of Ins. Regulation, 177 So. 3d 627, 628 (Fla. 1st DCA 2015) (“On this point we
find an unbroken string of Florida cases over the past century holding that
policyholders have the right to assign such [post-loss] claims without insurer
consent.”); Citizens Prop. Ins. Corp. v. Ifergane, 114 So. 3d 190, 195 (Fla. 3d DCA
2012) (“Post-loss insurance claims are freely assignable without the consent of
the insurer.”); Gisela Invs., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057
(Fla. 3d DCA 1984) (“A provision in a policy of insurance which prohibits
assignment thereof except with consent of the insurer does not apply to prevent
assignment of the claim or interest in the insurance money then due, after loss.”).

   II.   Security First

   The narrow question presented in the instant case is whether common law or
public policy prohibits an assignment of benefits provision in an insurance
contract that requires the consent of all the insureds and the mortgagee before
any assignment. In Security First Insurance Co. v. Florida Office of Insurance
Regulation, 232 So. 3d 1157 (Fla. 5th DCA 2017), the Fifth District recently
addressed this question and answered it in the affirmative, finding such a
restriction invalid. Accord Restoration 1 CFL, LLC v. ASI Preferred Ins. Corp., 239
So. 3d 747 (Fla. 5th DCA 2018).

   The Fifth District’s Security First case originated as an appeal from an order
entered by the Commissioner of the Department of Insurance, Office of Insurance
Regulation (“OIR”). Id. at 1157. That order upheld OIR’s disapproval of Security
First’s request to amend its policy language in the same fashion as the instant
case, “restrict[ing] the ability of policyholders to assign post-loss benefits absent
the consent of all insureds, all additional insureds, and all mortgagees named in

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their policies.” Id. at 1157-58.

   In addition to the OIR order, the Security First opinion primarily based its
holding on West Florida Grocery, interpreting that case to mean that any
restriction on an assignment of benefits was unenforceable, even those
restrictions not limited to requiring insurer consent. Id. at 1158-59. The court
explained: “A hundred years ago the Florida Supreme Court recognized, in [West
Florida Grocery], that ‘it is a well-settled rule that [anti-assignment provisions
do] not apply to an assignment after loss.’” Security First, 232 So. 3d at 1158
(second alteration in original) (quoting W. Fla. Grocery, 209 So. at 210-11).
Accordingly, Security First struck down an assignment of benefits provision that
required the consent of the insureds and mortgagees. Id. at 1159. The
assignment of benefits provision in Security First is nearly identical to the one in
the instant case. See id. at 1158 n.1.

    III.   Disagreement with Security First

   We initially note that, in contrast to Security First, OIR disapproval is not at
issue in the instant case.        Ark Royal submitted the required certified,
informational filing detailing this particular insurance contract to OIR, and OIR
has not indicated any disapproval of the specific language in question—even
though it is statutorily required to retroactively disapprove of any policy forms
that do not meet the requirements of the insurance code. §§ 627.410(3), .411(1),
Fla. Stat. (2018). 2

   The Security First opinion “disagree[s]” with the insurance company’s
argument “that case law only applies to provisions requiring the insurer’s
consent.” 232 So. 3d at 1158. However, none of the cases cited in Security First
discuss a condition on assignment that requires the consent of the insureds and
mortgagees. See Sec. First Ins. Co. v. State, Office of Ins. Regulation, 177 So. 3d
627, 629 (Fla. 1st DCA 2015) (affirming OIR’s denial of a request to approve a
provision requiring the insurer’s consent to post-loss assignment of
benefits); One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 165 So. 3d 749, 753 (Fla.
4th DCA 2015) (discussing a general assignment provision, rather than the
limited provision at issue in Security First and the instant case); Cont’l Cas. Co.
v. Ryan Inc. Eastern, 974 So. 2d 368, 377 n.7 (Fla. 2008) (citing to West Fla.
Grocery and Better Constr. in dicta); Accident Cleaners, Inc. v. Universal Ins. Co.,
186 So. 3d 1, 2 (Fla. 5th DCA 2015) (“[T]he sole issue before [the] court is whether
section 627.405 requires a post-loss assignee to have an insurable interest at
the time of the loss.”); Better Constr., Inc., 651 So. 2d at 142 (the two paragraph

2 The trial court expressly dismissed Restoration 1’s declaratory judgment action based
in part on OIR’s inactivity on the matter, stating: “Plaintiff [Restoration 1] requests that
this Court act against Ark Royal Insurance Company when the Office of Insurance
Regulation has not. Accordingly, Count I of Plaintiff’s Complaint (Declaratory Action) is
hereby dismissed.”
                                             4
opinion does not discuss the terms of the “no-assignment” provision, merely
citing to West Florida Grocery for the proposition “that a provision against
assignment of an insurance policy does not bar an insured’s assignment of an
after-loss claim”).

    Further, in relying upon West Florida Grocery, the Security First opinion
misquotes (and thereby overstates) the holding in that case. The Fifth District’s
opinion represents that the supreme court’s holding is that “it is a well-settled
rule that [anti-assignment provisions do] not apply to an assignment after loss.”
Sec. First, 232 So. 3d at 1158-59. However, the actual quote, without alterations,
merely states that “it is a well-settled rule that the provision in a policy relative
to the consent of the insurer to the transfer of an interest therein does not apply
to an assignment after loss.” W. Fla. Grocery, 209 So. at 210-11 (emphasis
added).

   Thus, by its plain terms, West Florida Grocery does not stand for the
pronouncement that any restriction is per se invalid. Instead, the supreme court
addressed and invalidated only a provision requiring the consent of the insurer,
with the court concluding that it is “superfluous” who the insurer ultimately pays
as the insurer will still have to cover the insured loss. 3 Id. at 211. In the instant
case, as Ark Royal argued in its motion to dismiss below, it is impossible to brand
the contested provision as superfluous—as both of the insureds, as well as the
mortgagee, have a vested interest that a reputable, legitimate third-party
contractor perform repairs on the home.

    In addressing the enforceability of the assignment of benefits provision in the
instant insurance contract, we begin with the premise that, generally, absent
“some great prejudice to the dominant public interest” or specific
pronouncement by the Florida Legislature, courts strive to uphold the parties’
freedom of contract. Bituminous Cas. Corp. v. Williams, 17 So. 2d 98, 101 (Fla.
1944) (“it is a matter of great public concern that freedom of contract be not
lightly interfered with”); see also Obolensky v. Chatworth at Wellington Green
LLC, 240 So. 3d 6, 11 (Fla. 4th DCA 2018); Banfield v. Louis, 589 So. 2d 441,
446 (Fla. 4th DCA 1991) (“When a particular contract, transaction, or course of
dealing is not prohibited under any constitutional provision, statutory provision,
or prior judicial decision, it should not be struck down on public policy grounds
unless it is ‘clearly injurious to the public good’ or ‘contravene[s] some
established interest of society.’” (quoting Bituminous Cas. Corp., 17 So. 2d at
101)).

    The contract here does not prohibit assignment—it imposes a condition,

3 The 1905 Georgia case relied upon by West Florida Grocery explains: “After the loss,
the claim of the insured, like any other chose in action, could be assigned without in
any way affecting the insurer’s liability.” Ga. Coop. Fire Ins. Ass’n v. Borchardt & Co.,
51 S.E. 429, 430 (Ga. 1905).
                                           5
requiring the approval of all insureds and the mortgagee. We cannot say that
this restriction (as distinct from the restriction addressed by West Florida
Grocery and its progeny) creates “some great prejudice to the dominant public
interest.”

                                       Conclusion

   For the foregoing reasons, we affirm the trial court’s dismissal of the
complaint and declaratory judgment action and hold that the language of the
assignment of benefits provision in the instant insurance contract is enforceable.
The central reasoning and holding of West Florida Grocery does not extend to the
facts of this case. To the extent that the Fifth District in Security First has
expanded upon West Florida Grocery, we certify conflict. Finally, with respect to
the public policy concerns of both parties, they are best addressed by the
legislature, not the courts.

   Affirmed; conflict certified.

WARNER and MAY, JJ., concur.

                                   *       *        *

   Not final until disposition of timely filed motion for rehearing.




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