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Professional Liability

Legal Updates for Florida Coverage and Property Litigation

Without deciding whether the 4th District Court reached the correct result under Fla. Stat. §627.7252(2)(a)4’s actual text, the 1st District Court reached a different conclusion, where the alleged facts could not be determined on a motion to dismiss.

Apex Roofing & Restoration LLC a/a/o Monica Williams v. United Auto. Ins. Co., Fla. 1st DCA, No. 1D2022-3990, October 2, 2024

December 1, 2024

by Ashley J. Johns

Prior to suit, USAA’s insured assigned her rights to Apex via an Assignment of Benefits (AOB) signed by both the insured and Apex. A day after signing the AOB, Apex prepared an itemized cost estimate. 

In response to Apex’s amended complaint, USAA filed a motion to dismiss based on Apex’s failure to comply with the conditions precedent under Fla. Stat. § 627.7252(2)(a)4 and failure to state a cause of action. USAA argued the AOB was invalid as the unexecuted estimate attached to the AOB was not dated until the day after the AOB was signed; therefore, the AOB did not “contain” the estimate, which is required under the statute. The trial court granted USAA’s motion to dismiss, which Apex then appealed.

In their order, the First District Court of Appeal specifies that a trial court must construe all allegations in the complaint as true. The court states the allegations in the complaint, if true, cannot be “rejected as a matter of law where asserted facts are not resolved, either by summary judgment or trial.” 

In this case, the amended complaint asserted USAA was estopped from “asserting its defense on validity of the AOB, based on its conduct in providing coverage, engaging in appraisal, and failing to inform Apex or the insured that it believed the AOB was invalid until after Apex filed suit.” For USAA to prove its contention that the AOB is invalid and unenforceable under the statute, it must establish, through evidence, that the AOB and estimate do not operate as one agreement. Therefore, the court determined the alleged facts in this case cannot be determined on a motion to dismiss.  

 

Legal Update for Florida Coverage & Property Litigation – December 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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Pennsylvania Appellate Update 2025-2026

On August 21, 2026, Casey will serve as a panelist for the live webcast program, “Pennsylvania Appellate Update 2025-2026” presented by the Appellate Advocacy Committee of the Pennsylvania Bar Association and Pennsylvania Bar Institute. The program is divided into three parts—Criminal, Civil, and Administrative. Casey will serve as a panelist for the Civil portion, along with Christina McKinley of Blank Rome, Ben Baer of Injury Law Partners, John Masslon of Keller Postman, Jonathan Bruno of Bruno Litigation LLC, and moderator, Ezza Ahmed of Buchanan Ingersoll.  Registration and more information: https://www.pbi.org/product/pennsylvania-appellate-update-2025-2026/

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