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Judge Tosses Challenge to Part of Insurance Law

Contractors challenged an assignment of benefits (AOB) change passed in May by the Fla. Legislature, but the judge said people named aren’t “proper defendants.”

TALLAHASSEE, Fla. – A Leon County circuit judge has rejected a challenge by contractors to part of a new property-insurance law that restricted attorney fees in insurance disputes.

Judge J. Lee Marsh issued an order Monday dismissing a constitutional challenge filed in May by the Restoration Association of Florida and Air Quality Assessors, LLC, an Orlando firm that does work such as mold testing and leak detection.

The challenge targeted part of a law passed during a May special legislative session that Gov. Ron DeSantis called to address massive problems in Florida’s property-insurance market. The lawsuit named as defendants Melanie Griffin, secretary of the Florida Department of Business and Professional Regulation, and Donald Shaw, executive director of the state Construction Industry Licensing Board, because they have disciplinary and regulatory authority over contractors.

Marsh’s order did not directly address the constitutionality of the law but dismissed the case because he said Griffin and Shaw were not “proper defendants,” in part because they were not in charge of enforcing the law.

The insurance industry has long blamed litigation and attorney fees for driving up costs. The new law took a series of steps to try to address those issues, but this court challenge focused on part of the measure that deals with “assignment of benefits” (AOB).

In assignment of benefits, homeowners sign over their insurance claims to contractors, who then seek payment from insurance companies – often spurring lawsuits about claims and payments.

In the past, contractors could recover their attorney fees from insurers if they were successful in the lawsuits, a concept known as “prevailing party fees.” But the new law (SB 2-D) stopped contractors from being able to recover prevailing-party fees if AOB. Homeowners can still recover prevailing-party fees if they file lawsuits directly, but contractors cannot.

The lawsuit alleged that the change violates equal-protection and due-process rights and denies contractors access to courts.

“When the insurer delays, underpays or does not pay a claim at all, contractors are forced to commence an action against the insurer to recover the full amount due for the work performed,” attorneys for the Restoration Association of Florida and Air Quality Assessors wrote in an Aug. 4 response to the state’s motion to dismiss the case. “Without the corresponding right to recover attorneys’ fees, SB 2-D makes it economically unfeasible for the contractor to pursue its lawful rights and remedies in court, and thus effectively voids the AOB (assignment of benefits), leaving the assignee (the contractor) holding the bag.”

But in seeking a dismissal, the state’s attorneys focused on issues such as whether Griffin and Shaw were proper defendants. In the July 13 motion to dismiss, for example, the attorneys wrote that the law “does not charge the secretary or the executive director with enforcing its provisions” and does not implicate their “specific responsibilities.”

“In other words, do the secretary or executive director have specific responsibilities relating to property insurance or awarding attorney’s fees in insurance litigation? They clearly do not,” the state’s attorneys wrote.

As an indication of the interest in the lawsuit, state-backed Citizens Property Insurance Corp., Security First Insurance Co., Tower Hill Signature Insurance Co. and US Coastal Property & Casualty Insurance Co. formally intervened to help defend the law.

The Restoration Association of Florida and Florida Premier Roofing LLC also have a challenge pending in Leon County circuit court to another law (SB 4-D) passed during the special session.

Florida’s property-insurance market has been in upheaval as insurers have dropped customers and sought huge rate increases because of financial losses. Five property insurers have been declared insolvent since February, and policies have poured into Citizens, which was created by the state as an insurer of last resort.

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