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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

Thought Leadership

Delaware Superior Court Clarifies Pleading Standard for Legal Malpractice Claims

In the matter of Edelstein v. Kirschner, No. N25C-09-018 FJJ, 2026 Del. Super. LEXIS 45, at *1 (Super. Ct. Jan. 29, 2026), the plaintiff law firm sued its former client for unpaid legal fees in the amount of $4,399.35. The former client asserted a counterclaim alleging legal malpractice. More, specifically, the former client claimed that his lawyer committed malpractice be recommending that he settle an underlying lawsuit by entering into a stipulated judgment for an excessive amount with interest that was accruing at “an outlandish” interest rate. The law firm moved to dismiss the counterclaim on the basis that its former client had not alleged facts reflecting that he could prove the case within the case. That is, facts reflecting that his attorneys caused him to lose the underlying case. The Superior Court held that while a legal malpractice plaintiff in cases arising from underlying litigation must prove the case within the case to survive a summary judgment motion, he does not need to plead facts reflecting as much in order to survive a motion to dismiss. While this case addresses the pleading requirements of a legal malpractice case in Delaware, it also serves as reminder that chasing unpaid legal fees from a former client can often give rise to a legal malpractice counterclaim. Attorneys seeking to collect unpaid legal fees should ensure that the fees they seek are for a significant amount, which would be recoverable if a judgment is obtained. Otherwise, the effort could backfire.

Thought Leadership

Pennsylvania Supreme Court Takes Up the Gist of the Action Doctrine

The gist of the action doctrine has been a hot topic in legal malpractice cases in Pennsylvania over the last several years.  Beginning in 2014, the Pennsylvania courts applied the gist of the action doctrine to professional liability actions, following the Pennsylvania Supreme Court’s opinion in Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014).  In Bruno, the court applied the gist of the action doctrine to a professional negligence claim, and found that a negligence claim was not barred simply because the parties were in a contractual relationship where the gist of the claim sounded in negligence. Thereafter, courts in Pennsylvania applied the gist of the action doctrine to breach of contract claims as well, finding that where the allegations sounded in negligence, a plaintiff could not recast a negligence claim as one for breach of contract. This was important because of the distinction between statutes of limitations: negligence claims must be brought within two (2) years, while breach of contract claims can be brought within four (4) years.  Then, last year, the Pennsylvania Superior Court held that the gist of the action doctrine does not apply to breach of contract claims as seen through two opinions. These opinions were Swatt v. Nottingham Village, 342 A.3d 23 (Pa. Super. 2025) and Poteat v. Asteak, et al., 350 A.3d 198 (Pa. Super. 2025). That is, the gist of the action doctrine can bar a negligence claim but it cannot bar a breach of contract claim.  This month, the Pennsylvania Supreme Court granted the petition for allowance of appeal in Poteat.  The Supreme Court phrased the issue for consideration as follows: Whether the Superior Court majority’s holding conflicts with this Court’s holding in Bruno v. Erie Insurance Co., 160 A.3d 48 (Pa. 2014), as well as Superior Court opinions that applied Bruno, and departs from almost 200 years of controlling precedent that distinguishes between causes of action in contract and tort based upon the nature of the duty that was allegedly breached? Attorneys on both sides of legal malpractice matters no doubt look forward to clarification on these issues from our Supreme Court.

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

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.