By William Rabb 

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A Florida insurance company has landed another blow against one of the industry’s most active opponents, after an appeals court upheld the dismissal of a breach-of-contract lawsuit brought by an assigned contractor.

In an opinion published Sept. 16, Florida’s 2nd District Court of Appeals found that Richie Kidwell and his Air Quality Assessors LLC failed to show why the 2019 assignment-of-benefits reform law did not apply to an AOB agreement signed in late 2019.

“We are hard-pressed to conclude that Air Quality’s assessment was not a service that falls within the scope of an ‘assignment agreement,’” the court’s opinion said.

The Kidwell Group and Air Quality, based in Orlando, had sued American Integrity Insurance Co., a carrier that has proven to be one of the more aggressive Florida insurers in fighting AOB claims and in finding ways to reduce litigation and exposure. The Charlotte County suit charged that the insurer had wrongly denied payment to Air Quality for mold assessment and other services after water damage at 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 that allows the homeowner to rescind the agreement without penalty; requires assignees to send the agreement to the insurer within three days of signing; requires an itemized estimate of costs; along with other provisions.

American Integrity’s attorneys also said Kidwell failed to give notice 10 days before filing his suit, as required by the law.

Kidwell’s lawyer countered that the agreement with the Mucciaccios was not a true AOB, but an assessment of the remediation work that was needed on the home. “This non-emergency indoor environmental assessment in no way is meant to protect, repair, restore, or replace damaged property or to mitigate against further damage to the property,” the agreement noted, Air Quality said.

The county court judge didn’t buy it, decided that the agreement was invalid and dismissed Kidwell’s suit.

On appeal, Chad Barr, Kidwell’s attorney in this and other recent appeals against insurers, argued that there remained a factual dispute over whether the 2019 AOB law governed Air Quality’s type of service, and if the agreement was an actual AOB.

The appeals court said it was.

“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 opinion.

The Legislature did not exclude assessment services from its definition of AOB agreements, the judge said. He quoted from American Integrity, which had cited the old adage, “If it looks like a duck and quacks like a duck, then it is a duck.” The insurer added that, regardless of what labels Air Quality applied to its contract, the services were of the type covered in the statute.

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

This is at least the second Florida appeals court to reach that conclusion. In April, the 4th District Court of Appeals held that the statutory notice of intent to sue applies to all assignment-of-benefits agreements signed after the 2019 law was enacted, even if the insurance policy pre-dates the statute.

American Integrity’s attorney in the appeal, Kimberly Fernandes, of Kelley Kronenberg, said the Mucciaccios decision won’t necessarily put to rest the contention that HB 7065 does not govern AOB agreements. Kidwell and others have argued that an assignee essentially “stands in the shoes” of the insured, who is covered by a policy that may have been written before the law was enacted.

“I would not go that far just yet, as a few appellate courts have not ruled on this issue,” Fernandes said. “However, there is no conflict at this time…”

The opinion may not help curtail AOB lawsuits, but could help ensure that contractors and their attorneys pay close attention to the requirements of the policy and the statute.

“The court’s message was clear to me – comply with the changes put in place by the Legislature,” Fernandes said in an email.

Kidwell’s American Integrity suit and the appeal are one of many filed by Kidwell in recent years. Few have been decided in the contractor’s favor.

In August, a Leon County Circuit Court dismissed Kidwell’s suit that challenged the constitutionality of Senate Bill 2D, passed in May, which took further aim at AOBs. The law bars assignees of benefits from having their attorneys’ fees paid by defendants when the AOB plaintiffs prevail in court. The lawsuit, by Air Quality and the Restoration Association of Florida, which Kidwell heads, charged that the law violates equal-protection and due-process rights and denies contractors access to courts.

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

The contractor and his organizations have lost other appeals that turned on the finer points of AOB agreements. In October 2021, the 4th DCA upheld the dismissal of a suit brought by the Kidwell Group and Air Quality Assessors versus Geovera Specialty Insurance Co., finding that both spouses had not signed the AOB agreement as required by the policy.

In Kidwell Group and Air Quality Assessors vs. United Property & Casualty Insurance, Florida’s 4th District Court of Appeal in June upheld a lower court’s dismissal of a breach-of-contract suit. The court found that the assignee-contractor did not provide an itemized, per-unit cost estimate of the services to be performed in the restoration, as required by law.

Kidwell could not be reached for comment late Tuesday.