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January 28, 2016

Butler has been at the forefront of defending insurers against the tidal wave of assignment of benefit (“AOB”) litigation that has hit Florida over the past four years. Today, there was a noteworthy development. The Fourth District Court of Appeal (“4DCA”) issued an opinion affirming the trial court’s final summary judgment in favor of the insurer, which held the contractor’s AOB invalid. The case is One Call Prop. Servs., Inc. aao Schlanger v. St. Johns Ins. Co., No. 2013CA000868, 2014 WL 7496474 (Fla. 19th Cir. Ct. Nov. 20, 2014). The appeal number is 4D14-4585.

The trial court gave three bases for granting the insurer’s motion for final summary judgment and finding the AOB invalid. Those bases were (1) that Florida’s Homestead protection renders the AOB invalid because it sought to divest the homeowners of Homestead-protected property; (2) the AOB amounted to an unauthorized public adjusting agreement, and (3) the AOB was not signed by all the named insureds.

Unfortunately, the 4DCA’s opinion is a per curiam affirmance. That means the 4DCA did not explain why it affirmed the trial court’s final summary judgment. It could have affirmed the trial court on any one of the bases asserted above or even rested its affirmance on some other basis not mentioned above. We simply do not know. Also, a per curiam affirmance is not binding precedent. That means it cannot be used to compel a trial court to reach the same outcome on similar facts. Also, the opinion is not yet final. There could be additional activity in this case. We will just have to wait and see where things go from here.

That said, this decision certainly allows insurers to reconsider their options in defending AOB cases going forward. Should you have any questions, feel free to contact Tim Engelbrecht