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If that sounds like an AOB, it is, Florida Court of Appeals rules in Kidwell case

A Florida insurance company has dealt another blow to one of the industry’s most outspoken opponents, after an appeals court upheld the dismissal of a breach of contract lawsuit filed by a designated contractor.

In a notice published September 16, Florida’s 2n/a The District Court of Appeals found that Richie Kidwell and his LLC Air Quality Assessors failed to demonstrate why the Benefits Allocation Reform Act of 2019 did not apply to an AOB agreement signed at the end of 2019.

“We find it difficult to conclude that the air quality assessment was not a service within the scope of an ‘assignment contract,'” the court said.

Orlando-based Kidwell Group and Air Quality had sued American Integrity Insurance Co., a carrier that has proven to be one of Florida’s most aggressive insurers in battling AOB claims and seeking remedies. reduce litigation and exposure. The Charlotte County lawsuit accused the insurer of wrongfully denying payment to Air Quality for mold assessment and other services after water damage to a home owned by Robert and Maureen Mucciaccio.

Kidwell

American Integrity argued at trial that the AOB agreement did not include provisions required by House Bill 7065, which became Florida Statute 627.7152 in July 2019. The law requires agreements to include language allowing the owner to cancel the agreement without penalty; requires assignees to send the agreement to the insurer within three days of signing; requires a detailed cost estimate; as well as other provisions.

Lawyers for American Integrity also said Kidwell failed to give 10 days’ notice before filing her lawsuit, as required by law.

Kidwell’s attorney countered that the deal with the Mucciaccios was not an actual AOB, but an assessment of the remediation work that was needed on the house. “This non-emergency indoor environmental assessment is in no way intended to protect, repair, restore or replace damaged property or to mitigate other property damage,” the agreement reads, Air Quality said.

The county court judge did not buy it, ruled the deal invalid, and dismissed Kidwell’s lawsuit.

On appeal, Chad Barr, counsel for Kidwell in this appeal and other recent appeals against insurers, argued that there remained a factual dispute over whether the AOB Act of 2019 governed the type of service of Air Quality and whether the agreement was a true AOB.

The Court of Appeal said so.

“The AOB is an ‘assignment agreement’ under Section 627.7152, regardless of Air Quality’s attempts to disguise it as something else,” Judge Edward LaRose wrote in the notice.

The legislature did not exclude appraisal services from its definition of AOB agreements, the judge said. He quoted American Integrity, which had cited the old adage, “If it looks like a duck and quacks like a duck, then it’s a duck.” The insurer added that regardless of the air quality labels applied to its contract, the services were of the type covered by the law.

Kidwell’s lawyer also argued that the law should not be applied retroactively, as the insurance policy was issued long before the 2019 law was passed. The appeals court also did not accepted that argument, noting that the county court judge correctly determined that the law applied to AOBs executed after July 1, 2019, and that the agreement with the Mucciaccios was signed months later.

It is at least the second Florida appeals court to reach this conclusion. In April, the 4e The District Court of Appeals ruled that the legal notice of intent to sue applies to all benefit assignment agreements signed after the 2019 law was enacted, even if the insurance policy predates it. to the law.

Kidwell’s US integrity lawsuit and appeal is one of many filed by Kidwell in recent years. Few were decided in favor of the contractor.

In August, a Leon County circuit court dismissed Kidwell’s lawsuit challenging the constitutionality of Senate Bill 2D, passed in May, which targeted AOBs more. The law prohibits benefit assignees from having defendants pay their attorneys’ fees when AOB plaintiffs prevail in court. The lawsuit, brought by Air Quality and the Kidwell-led Restoration Association of Florida, accused the law of violating equal protection and due process rights and denying contractors access to court.

Kidwell appealed the dismissal. The case is pending before the 1st District Court of Appeals.

The contractor and its organizations have lost other remedies dealing with the intricacies of the AOB agreements. In October 2021, the 4e DCA upheld the dismissal of a lawsuit brought by Kidwell Group and Air Quality Assessors against Geovera Specialty Insurance Co., finding that both spouses failed to sign the AOB Agreement as required by the police.

In Kidwell Group and Air Quality Assessors v United Property & Casualty Insurance, Florida’s 4e The District Court of Appeals in June upheld a lower court’s dismissal of a breach of contract suit. The court found that the transferee-contractor had not provided a detailed and unitary estimate of the costs of the services to be carried out within the framework of the restoration, as required by law.

Kidwell and American Integrity attorney Kimberly Fernandes of Kelley Kronenberg could not be reached for comment Tuesday night.

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Florida

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