BETTER CONSTRUCTION, INC., A FLORIDA CORPORATION, APPELLANT,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, APPELLEE
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Better Construction appeals a trial court's dismissal of its breach of contract claim against National Union Fire Insurance based on no-assignment and no-action policy clauses. The appellate court reverses, holding that an insured's post-loss claim assignment is not barred by no-assignment provisions and that National's unconditional payment may constitute waiver of the no-action clause.
The trial court erred in dismissing the complaint without leave to amend. Neither the no-assignment clause nor the no-action clause precludes Better from stating a cause of action. A no-assignment clause does not bar an insured's assignment of after-loss claims, and National's unconditional payment pursuant to the consent judgment may constitute waiver of its no-action clause rights.
[1] A provision against assignment of an insurance policy does not bar an insured's assignment of an after-loss claim.
[2] An insurer's payment of a consent judgment, without reservation of rights, may result in a waiver of the insurer's rights under a no-action clause.
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Join FLexlaw to unlock all legal intelligence“a provision against assignment of an insurance policy does not bar an insured's assignment of an after-loss claim”
Establishes the key distinction allowing assignment of post-loss rights despite no-assignment clauses in the policy.
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Join FLexlaw to unlock all legal intelligenceBetter Construction sought damages from National Union's insured for negligence. National provided a defense for its insured. Better and National's in…
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[*142] PER CURIAM.
Better Construction, Inc., appeals an order dismissing its complaint against National Union Fire Insurance Company of Pittsburgh. We reverse. Better sought to recover damages from National’s insured for negligence. National provided a defense for its insured. Better entered into a consent judgment with National’s insured which provided, in part, that the insured assigned its rights under the policy to Better and agreed to pay Better $80,000; National paid Better the amount provided in the consent judgment. Better then filed an action against National. National sought dismissal contending that the no-assignment and no-action policy provisions barred the action. The trial court agreed and dismissed the action.
We hold that the trial court erred in dismissing Better’s complaint without leave to amend, where, as here, Better may be able to state a claim for breach of contract against National. Contrary to the trial court’s ruling, neither the no-assignment clause nor the no-action clause precludes Better from stating a cause of action against National. The first reason is that a provision against assignment of an insurance policy does not bar an insured’s assignment of an after-loss claim. West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209 (1917); Gisela Inv., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056 (Fla. Sd DCA 1984).
Cf. § 627.422, Fla.Stat. (1993).
The second reason is that Better may allege that National’s payment pursuant to the consent judgment, without reservation of any rights, resulted in its approval of the settlement, and served to waive its rights under the no-action clause. Cf. Munster Steel Co. v. Travelers Indem. Co., 620 S.W. 2d 771 (Tex.Ct.App. 1981) (insurer’s knowledge of settlement negotiations and failure to disapprove of settlement insufficient to establish waiver of no-action clause).
For the foregoing reasons, we reverse the dismissal and remand the cause.
Reversed and remanded.
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Cont'l Cas. Co. v. Ryan Inc. E., 974 So. 2d 368 (Fla. 2008)…it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.” West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 210-11 (1917); accord Better Constr., Inc. v. Nat’l Union Fire Ins. Co., 651 So. 2d 141, 142 (Fla. 3d DCA 1995).…
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ONE Call Prop. Servs. Inc. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. 4th DCA 2015)…y to assignment after loss.”); 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.”); Better Constr., Inc. v. Nat'l Union Fire Ins. Co., 651 So. 2d 141, 142 (Fla. 3d DCA 1995) (“[A] provision against assignment of an insurance policy does not bar an insured’s assignment of an after-loss claim.”); Gisela Invs., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984) (“A provision in…
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Lexington Ins. Co. v. Simkins Indus., Inc., 704 So. 2d 1384 (Fla. 1998)…edence, as interests may appear. (Emphasis added.) . Lexington concedes that an insured may assign insurance proceeds to a third party after a loss, even without the consent of the insurer. See Better Constr., Inc. v. National Union Fire Ins. Co., 651 So. 2d 141, 142 (Fla. 3d DCA 1995). . See, e.g., 3 Lee R. Russ, Couch on Insurance 3d § 35:3 (1997)("[A]s a general rule, [fire insurance] policies contain a clause forbidding an assignment of the policy without the consent of the insurer, and imposing a forf…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220 (Fla. 1917)
- Nazario v. Nazario, 452 So. 2d 1056 (Fla. 3d DCA 1984)
- Gisela Invs. v. Liberty Mut. Ins. Co., 452 So. 2d 1056 (Fla. 3d DCA 1984)