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Co-Chair, Insurance Services Practice Group

Co-Chair, First-Party Property Practice Group

Portrait of Danielle N. Robinson

Defense Digest

Decision Requiring Strict Compliance with §627.7152 Provides Insurance Carriers With Another Tool to Combat Litigation of Assignment of Benefit Claims

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Danielle N. Robinson

Key Points:

  • As of July 1, 2019, pursuant to Florida Statute §627.7152, there are specific guidelines that an assignment of benefits (AOB) must adhere to.
  • Statute requires that an AOB must be in writing and executed, contain a provision that allows for rescission without a penalty, and include a written itemized, per-unit cost estimate of the services to be performed by the service provider.
  • Statute also specifies that an AOB may not have penalties or fees for cancellation, processing or administration.

In The Kidwell Group, LLC, d/b/a Air Quality Assessors of Florida v. United Property & Casualty Insurance Company, the Fourth District Court of Appeal upheld a dismissal of a breach of control suit brought by an assignee. The court found that an estimate attached to the complaint from five days after the date the AOB was executed did not satisfy the requirement that the Assignment contain a written itemized, per-unit cost estimate of the services to be performed.

On June 15, 2022, the Fourth District Court of Appel upheld a lower court’s dismissal of a breach-of-contract suit brought by an Assignment of Benefit (AOB) holder (assignee) because the AOB was invalid and unenforceable. Under Florida law, a valid AOB allows an assignee (such as water remediation companies, roofers and contractors) to receive benefits under a policyholder’s insurance policy in exchange for providing services or repairs relating to the policyholder’s property damage claim. Due to the increase in the number of entities seeking to provide services pursuant to an AOB, many Florida homeowners unwittingly engaged repair providers and executed AOBs in exchange for their services. Many times, after an AOB had been obtained from the policyholders, assignees subsequently, and often unilaterally, expanded the scope of the services to be provided or changed the prices for their services. Additionally, many companies began to take advantage of homeowners by offering a multitude of tests, assessments and evaluations, ostensibly related to their property damage claims, in an effort to obtain an AOB and bill their insurance carriers for the costs. As a result, Florida insurance carriers began seeing an ever-increasing tidal wave of assignee-related claims for questionable services and excessive amounts. This influx in claims ultimately translated into an influx of litigation between assignees and insurance carriers.

In an effort to curb this rampant litigation, the Florida Legislature passed §627.7152, detailing the specific guidelines an AOB must adhere to in order to be valid and enforceable. The law went into effect on July 1, 2019. The Statute requires that an AOB:

(1) be in writing and executed by and between the policyholder and the service provider;

(2) contain a provision that allows the policyholder to rescind the AOB without a penalty within a certain time;

(3) contain a provision requiring the service provider to provide a copy of the AOB to the policyholder’s insurance carrier;

(4) contain a written, itemized, per-unit cost estimate of the services to be performed by the service provider;

(5) relate only to specific types of repairs and services at the property;

(6) specifically notify the policyholder that they are giving up rights under their insurance policy which may result in litigation; and

(7) contain a provision requiring the service provider to protect the policyholder from any resulting liabilities, costs or losses.

In addition to indicating what an AOB must have, the Florida Legislature also specified what an AOB may not have, including penalties or fees for cancellation, processing or administration. Under the statute, an AOB that does not comply with these requirements is deemed to be invalid and unenforceable. Section 627.7152 also requires an assignee to provide the policyholder and the insurance carrier with a written notice of its intent to initiate litigation at least 10 business days before filing a lawsuit. The statute holds assignees’ feet to the fire by requiring that an AOB conform to specific, concrete, and uniform requirements or be deemed unenforceable.

The Fourth District Court of Appeal’s recent decision in Kidwell demonstrates just how strictly assignees will have to comply with §627.7152. In Kidwell, the AOB was deemed invalid and unenforceable because it was not in strict compliance with the requirements laid out in 627.7152. The court held that the AOB did not contain an itemized, per-unit cost estimate of the services to be performed, as required by law. In Kidwell, the plaintiff argued that it satisfied the requirements of § 627.7152 by providing the policyholder with an invoice dated five days after the AOB was signed. However, the court determined that a post-dated, unsigned invoice did not comply with the requirement that the AOB contain a per-unit cost estimate of the services to be performed and was, therefore, invalid.

In one of the first appellate rulings on this aspect, the Fourth District Court of Appeal’s decision in Kidwell has paved the way for other jurisdictions to reach the same decisive conclusion. It is the intent of the legislature that Statute 627.7152 will prevent assignees from potentially deceiving policyholders and insurance carriers by seeking reimbursement for inflated estimates and unnecessary repairs. The Kidwell decision’s strict enforcement of the statue will hold entities to account for their duplicitous tactics.

In an effort to get around the statute, Kidwell and other entities have argued that 627.7152 should not be applied retroactively to any claims on insurance policies issued prior to July 1, 2019, the effective date of the statute. However, the Second District Court of Appeal recently rejected that argument when it issued its opinion in The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Robert and Maureen Mucciaccio v. American Integrity Insurance Company of Florida, 347 So.3d 501 (Fla. 2d DCA Sept. 16, 2022). There, the court found that the assignee has no rights to an insured claim until it executes a valid AOB with the policyholder. Therefore, the law in effect on the date the parties executed the AOB controls, not the law in effect when the insurance policy was issued. As a result, the court held that Florida Statute 627.7152 applied to Kidwell’s AOB as it was executed after the statute’s July 1, 2019, effective date.

As is clear from both of the recent Kidwell cases, the trend is to hold the assignee accountable and ensure they are providing reasonable services at reasonable costs. Strict compliance with Florida Statute §627.7152 for any AOB executed after July 1, 2019, will be required.

Firm Highlights

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. 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Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. 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Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Not So Fast. . . The Limitations of the Pennsylvania RELRA in Plaintiffs’ Civil Actions Against Real Estate Broker and Licensee Defendants

Much has been made of the importance and weight of the Pennsylvania Real Estate Licensing and Registration Act, 63 P.S. §§ 455.101, et. seq. (RELRA or Act). After all, a real estate broker generally cannot recover any commission absent a signed agreement that complies with RELRA. But can a plaintiff rely on RELRA as a distinct cause of action in a civil action as to a real estate broker or licensee defendant? The Superior Court has emphatically held that he or she cannot. In the unpublished opinion P. Perez Real Est. Holdings, LLC et. al. v. Home Sale Real Est. Servs., Inc., et al., No. 256 MDA 2025, 2025 WL 35389888 (Pa. Super. Ct. December 10, 2025), the Superior Court held that the Act “does not contemplate private actions for money damages as an enforcement mechanism and consequently, does not create a private cause of action.” citing Schwarzwaelder v. Fox, 895 A.2d 614, 620 (Pa. Super. 2006). While the Act authorizes the Bureau of Professional and Occupational Affairs, State Real Estate Commission, to regulate the conduct governed by RELRA, the Act alone does not create a stand-alone legal cause of action as to a broker-defendant in a civil action. See P. Perez, citing Schwarwaelder at 620. Nor can it be stated that RELRA creates or imposes any legally cognizable duties on real estate brokers or licensees. While the Act contains and refers to general concepts of duty (e.g. the agent must “exercise reasonable professional skill and care which meets the practice standards required by this act” and “to deal honestly and in good faith” 63 P.S. §§606.1 (a)(1),(2), or the broker has a duty to the buyer of property to take “action that is consistent with the buyer’s interest in transaction.”  63 P.S. §§606.3 (1)), these general concepts are secondary to the duties imposed by the required written agreement between the broker and consumer. For example, in P. Perez, a case in which the buyers-plaintiffs argued that the real estate broker failed to investigate recent legislation that would affect buyer’s intentions to convert the property to commercial space, the agreement between buyer and broker contained the following provision in the “Buyer’s Due Diligence” clause: Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made an independent examination or determination of the structural soundness of the property, the age or condition of the components, environmental conditions, the permitted uses, nor of conditions existing in the locale where the property is situated. . . Accordingly, the broker defendants expressly disclaimed any duty to buyers to inform them or determine whether any applicable zoning classifications, laws, or ordinances in the township applied to the properties in question. Moreover, the Superior Court refused to read provisions of the Act into the Agreement, citing Skiff re Buss, Inc. v. Buckingham Review, LP, 991 A.2d 956 (Pa. Super. 2010). In defending civil actions it is important for the defense attorney to identify any causes of action predicated solely on RELRA. Preliminary objections may be warranted to the extent that the plaintiff asserts RELRA as a stand-alone cause of action for monetary damages, a position struck down by the Superior Court of Pennsylvania in P. Perez.  Moreover, any attempt to create or heighten duties as to the broker defendants may be countered by the general proposition that the courts will not inject the vague concepts of “reasonable professional skill” or “good faith” where the written agreement has express provisions regarding the duties of the parties. Ironically, although RELRA is an important Act with which all realtors, brokers, and licensees should be familiar to guarantee that their commissions are in fact timely paid, it is not a strong stand-alone mechanism for a plaintiff’s attempts to recover monetary damages in a civil action.

Thought Leadership

New Jersey Supreme Court Strengthens the Ongoing Storm Rule in Gallardo v. Walmart

The New Jersey Supreme Court recently expanded the protection afforded by the ongoing storm rule, under which commercial property owners generally have no duty to remove snow or ice while precipitation is actively falling absent unusual circumstances or a preexisting hazardous condition. In Gallardo v. Walmart, No. A-65-24 (N.J. July 30, 2026), the court significantly narrowed a common avenue plaintiffs have used to avoid summary judgment, holding that “ordinary efforts” to address winter conditions during an ongoing storm do not become actionable merely because an expert later claims those efforts made the conditions more dangerous. The case arose from a typical winter slip and fall. Mixed precipitation began around 11:30 a.m. Walmart's snow-removal contractor arrived about an hour later and salted the parking lot and walkways. Because accumulation was minimal, ranging from trace to 1/10th of an inch, the contractor did not plow. The plaintiff fell approximately 15 minutes after the salting was completed. The plaintiff did not contend that Walmart failed to respond to the storm. Instead, she argued that Walmart responded improperly. Her expert opined that salting without pretreating the lot caused melting and refreezing that resulted in black ice. That theory survived two summary judgment motions and ultimately persuaded a jury, which returned a verdict of approximately $1.33 million. The Appellate Division vacated the verdict because the jury had not been properly instructed on the ongoing storm rule, but remanded the matter for a new trial. The New Jersey Supreme Court reversed in a 4-3 decision and directed entry of summary judgment for Walmart. Applying Pareja v. Princeton International Properties, 246 N.J. 546 (2021), the Court concluded that Walmart's conduct fell within the protections of the ongoing storm rule. Salting a trace accumulation during an active storm was ordinary remediation, not the type of unusual circumstance that could give rise to a duty. The court further held that expert criticism of those efforts was insufficient to change that result. Following Pareja, plaintiffs frequently argued that a property owner forfeited the protection of the ongoing storm rule whenever an expert could identify some alleged flaw in the owner's response to the storm. Gallardo rejects that premise. The decision recognizes that imposing liability based solely on expert criticism of ordinary snow removal efforts would discourage property owners from taking any action during a storm and would undermine the very purpose of the doctrine. The ruling warrants a fresh look at pending winter premises liability cases involving active precipitation, minimal accumulations, mid-storm salting, alleged failures to pretreat, or expert opinions premised on melting-and-refreezing theories. Cases previously viewed as presenting substantial trial exposure may now be stronger candidates for summary judgment. At the same time, Gallardo does not eliminate all potential liability during an ongoing storm. A preexisting hazardous condition or genuinely unusual affirmative conduct may still support the imposition of a duty. Plaintiffs will also likely attempt to distinguish Gallardo based on the nature of the remediation efforts at issue and the specific facts of a case. The bottom line is that Gallardo strengthens the ongoing storm rule by restoring it as a meaningful summary judgment defense. Now, “ordinary” efforts to address winter conditions during an active storm do not become "unusual circumstances" simply because a plaintiff retains an expert to say they could have been done differently

Thought Leadership

Pennsylvania Superior Court Confirms RESDL Claims Are Subject to a Two-Year Statute of Repose

The Pennsylvania Superior Court recently concluded that claims under the Real Estate Seller Disclosure Law (“RESDL”) are subject to a two-year statute of repose running from the settlement date. This decision will further assist defending errors and omission claims against real estate agents as it bars any RESDL action commenced more than two years after the settlement date regardless of when the defect was discovered.  In Hollinger v. Deitrich, 2026 Pa. Super. LEXIS 328 (June 23, 2026), the buyers entered into an agreement of sale in April of 2017 to purchase a residential property. The settlement occurred in June of 2017. The buyers reviewed the seller disclosures that revealed the property had a sump pump in working order and a sump pit. The disclosures further noted no water infiltration into the basement, but disclosed rehab, an addition to the property and prior sewage backup.  Shortly after the settlement and closing, the buyers experienced flooding in their basement. In March of 2020, the buyers filed suit against the seller, the buyers’ real estate agent and broker and the seller’s real estate agent and broker alleging various causes of action including a violation of RESDL. The buyers alleged that they sought assurances from the agent defendants that no water infiltration occurred on the property. They further alleged that both agents lived in the area and should have known about the neighborhood water infiltration issues. The trial court granted summary judgment for the seller and the seller’s agents and dismissed the RESDL violation.  Relying on the Supreme Court’s decision in Gidor v. Mangus d/b/a Mangus Inspections, 345 A.3d 629 (Pa. 2025), the court explained that a statute of limitation begins to run from the time of the injurious occurrence or a discovery of the same. However, a statute of repose runs for a statutorily determined period after a definitively established event. Notably, a statute of repose eliminates a cause of action regardless of when the claim accrues. Because of this, a plaintiff may not invoke the discovery rule or other equitable tolling considerations.  RESDL requires that an action for damages, as a result of a violation of this chapter, must be commenced within two years after the date of final settlement. The court found that Section 7311(b) was clear and unambiguous that an action for damages pursuant to this chapter must be commenced within a certain time after a definitely established event that is independent of any injury or discovery of any injury. Since the buyers sued over two years after closing on the property, their statutory claims were time-barred. The court explained that the seller disclosure statement could not support common law or consumer protection claims, as using it would improperly expand remedies beyond the statute’s terms. Accordingly, the court upheld the trial court’s summary judgment ruling that the buyers’ claims under RESDL were barred by the statute of repose.  Accordingly, defense counsel should scrutinize complaints involving RESDL claims to ensure that such claims have been timely brought within two-years of the settlement date. A plaintiff will no longer be able to invoke the discovery roll to expand the time frame.