Hurricane Matthew lashed Florida’s eastern coast in early October, causing significant damage to both residential and commercial property. While Hurricane Matthew is gone, Florida insurers are now bracing for another type of storm: a flood of assigned insurance claims in the wake of the destruction. Over the past few years, assigned insurance claims—often referred to as assignments of benefits (AOBs)—have been particularly challenging for first-party property insurers in Florida. AOBs raise unique issues, including fraud concerns.
Let’s take a look at the history of AOBs, discuss how AOBs impact the resolution process (including fraud concerns), and highlight some of the legal issues that are present with AOBs.
A Brief History of AOBs and Fraud Concerns
The typical AOB situation arises when an insured has a property loss. The loss is oftentimes a water loss due to a leaky roof, a broken pipe, or a plumbing malfunction. The insured hires a contractor to either prevent further damage or to make emergency repairs. The contractor requests the insured to execute an AOB, which assigns the policyholder’s insurance rights to the contractor in return for the contractor’s services. Then, after providing the services, the contractor makes a claim directly to the insurer for payment using those assigned rights.
For nearly 100 years, Florida law has recognized that an insured may freely assign post-loss insurance benefits to another even without the insurer’s consent. The seminal case on the issue is W. Fla. Grocery Co. v. Teutonia Fire Ins. Co. Florida’s 1st District Court of Appeal recently cited Teutonia in an opinion regarding the free assignability of post-loss insurance claims. Citing Security First Ins. Co. v. State, Office of Ins. Regulation, the 1st District stated, “On this point, we find an unbroken string of Florida cases over the past century holding that policyholders have the right to assign such claims without insurer consent.”
However, with the increased use of AOBs in first-party property claims over the last few years, there have been concerns that some of these AOB claims are fraudulent. In fact, in the Security First case cited above, the 1st District acknowledged in its opinion that “[the court is] not unmindful of the concerns that Security First expressed in support of its policy change, providing evidence that inflated or fraudulent post-loss claims filed by remediation companies exceeded by 30 percent comparable services; that policyholders may sign away their rights without understanding the implications; and that a cottage industry of vendors, contractors, and attorneys exists that use the assignments of benefits and the threat of litigation to extract higher payments from insurers.”
Despite that observation, the 1st District stated that those “policy arguments and evidentiary basis for them put forth by Security First are more properly addressed to the legislature.” In fact, over the past few legislative sessions, Florida lawmakers have considered bills that would affect or limit the way AOBs are used in first-party property claims. However, to date, none of those bills have become law.
Citizens Property Insurance Corporation (Citizens) is the largest insurer in Florida. In September 2016, Citizens’ Consumer Services Committee published a comprehensive report showing the impact of AOBs on claims and litigation. The data for the report came from claims closed between 2011 and 2016. In a nutshell, the report shows that assigned claims took significantly longer to settle than nonassigned claims. Moreover, the report shows that an assigned claim is over four times more likely to end up going into litigation than a nonassigned claim.
In late October 2016, ABC Action News in Tampa published a report stating that a roofing contractor was arrested and accused of defrauding approximately 90 homeowners out of insurance proceeds. According to the report, the contractor went door to door in Florida’s Citrus County after a hailstorm struck the area in 2014. In most instances, the contractor offered to replace the homeowner’s roof in exchange for the homeowner executing an AOB to the contractor. It is alleged that the contractor received over $950,000 of insurance proceeds but never replaced the roofs.
Guarding Against Fraud
One of the best ways for insurers to guard against suspected fraud is to gather as much information about the claim as possible. Most insurance policies contain post-loss conditions that obligate the insured to provide a sworn statement in proof of loss, submit to an examination under oath, or provide documents to the insurer. These conditions provide the insurer with an opportunity to fully investigate the claim, which greatly reduces the chance of a fraudulent claim being paid.
In addition to those options, many insurers take recorded statements from their insureds following the first notice of the loss. A recorded statement is a convenient way for the insurer to confirm the facts of the loss and also determine if a contractor is involved. If a contractor is involved, the recorded statement allows the insurer to learn what work was actually performed and what equipment was used. Having that information early allows the insurer to be on guard for overbilling when the assignee contractor submits its claim. Having a cooperative insured assisting the insurer is one of the best ways for the insurer to guard against potential fraud.
Having a cooperative insured, especially in the AOB context, is helpful because an insurer usually does not have the ability to require an assignee contractor to comply with the post-loss conditions with which the insured has to comply. That is because when an insured assigns insurance rights to a contractor, the contractor does not assume the duties and obligations of the insurance policy, as cited in Shaw v. State Farm Fire & Cas. Co., disapproved of on other grounds by Nunez v. Geico Gen. Ins. Co.
That said, an insurer still can request that its insureds fulfill those post-loss obligations even if the insureds have assigned their claims to a contractor. If the insured fails or refuses to fulfill those post-loss obligations, that failure on the part of the insured may bar the assignee contractor’s claim, as further noted in Shaw: “If the assignor is entitled to be paid, the assignee is entitled to be paid, but if the assignor is not entitled to be paid because of some failure of performance on the part of the assignor, then the assignee is not entitled to be paid either.”
Another way insurers can guard against fraud and the inflated value of claims is by using the insurance policy’s appraisal provision. Most insurance policy appraisal provisions state that if the parties disagree on the amount of money owed under the insurance policy, either party can request an appraisal. Once an appraisal is requested, each party names an appraiser, and each appraiser estimates the value of the claim. If the appraisers agree, that sets the amount of money owed. If the appraisers disagree, then the appraisers select an umpire, and the agreement of any two of those people sets the amount of money owed.
However, some assignee contractors have tried to resist participating in the appraisal process. Some contractors argue that they only provide an emergency service (rather than actual repair to the damaged property), and the costs of such services are not subject to the insurance policy’s appraisal provision. Other contractors argue that the appraisal process is a duty or obligation of the insurance policy and, along the same lines as the Shaw case discussed, the assignee contractor cannot be compelled to perform such duties and obligations.
That issue was addressed in the recent case of Certified Priority Restoration v. State Farm Fla. Ins. Co. In that case, Florida’s 4th District Court of Appeal affirmed the trial court’s ruling that compelled an appraisal that was requested by the insurer despite the fact that the insured assigned her claim to a contractor. The 4th District cited the Shaw case and held that participation in the insurance policy’s appraisal process is not one of the nondelegable duties that must be performed solely by the insured. Thus, the 4th District held that the trial court did not err in compelling the appraisal.
Some contractors try to avoid appraisal because they would rather litigate the dispute. Part of the reason some contractors prefer litigation over appraisal is because the contractor has a close relationship with an attorney and because Florida has an attorney fee shifting statute that applies to first-party insurance disputes. In a nutshell, Florida Statute § 627.428 provides that, if an insured is required to resort to litigation and is successful against his insurer, the insured will be entitled to recover his attorney’s fees from his insurer. In the case of Continental Cas. Co. v. Ryan Inc. E., the Florida Supreme Court held that the statute also applies to assignees of insurance benefits. That means if an assignee contractor is required to resort to litigation against an insurer and is successful, the assignee contractor will be entitled to recover its attorney’s fees from the insurer, as well.
Because of Florida’s attorney fee shifting statute, many lawyers are eager to represent assignee contractors in litigation, especially when the loss is covered and the only dispute is over the amount of money owed. In fact, AOB work has become so coveted by lawyers in Florida that one law firm in Orlando periodically hosts what it calls an “insider secrets workshop” for contractors. The workshop promises to show contractors “the insider secrets the insurance companies don’t want [them] to know.” The workshop teaches contractors how to use AOBs, work authorizations, and demand letters in order to collect money from insurance companies. Contractors that attend the workshop are given a flash drive with documents as well as a PowerPoint presentation that explains the AOB process from the perspective of the contractor and the law firm.
Moving Forward
There is no doubt Florida insurers will be dealing with insurance claims spawned by the destruction left in the wake of Hurricane Matthew and other storms for many months, if not years, to come. It is equally certain that some, if not many, of those claims will come in the form of AOB claims. In addition to that, it would not be surprising to see the current AOB trend in Florida migrate north into Georgia, South Carolina, and North Carolina since those areas were hard hit by Hurricane Matthew, as well. By using some of the approaches discussed above, insurers can guard against fraud concerns while at the same time fulfilling their obligations under the insurance policy.
Editor’s Note: Special thanks to CLM’s Insurance Fraud Committee for their efforts in coordinating this article.