Without deciding whether the 4th District Court reached the correct result under Fla. Stat. §627.7252(2)(a)4’s actual text, the 1st District Court reached a different conclusion, where the alleged facts could not be determined on a motion to dismiss.

Prior to suit, USAA’s insured assigned her rights to Apex via an Assignment of Benefits (AOB) signed by both the insured and Apex. A day after signing the AOB, Apex prepared an itemized cost estimate. 

In response to Apex’s amended complaint, USAA filed a motion to dismiss based on Apex’s failure to comply with the conditions precedent under Fla. Stat. § 627.7252(2)(a)4 and failure to state a cause of action. USAA argued the AOB was invalid as the unexecuted estimate attached to the AOB was not dated until the day after the AOB was signed; therefore, the AOB did not “contain” the estimate, which is required under the statute. The trial court granted USAA’s motion to dismiss, which Apex then appealed.

In their order, the First District Court of Appeal specifies that a trial court must construe all allegations in the complaint as true. The court states the allegations in the complaint, if true, cannot be “rejected as a matter of law where asserted facts are not resolved, either by summary judgment or trial.” 

In this case, the amended complaint asserted USAA was estopped from “asserting its defense on validity of the AOB, based on its conduct in providing coverage, engaging in appraisal, and failing to inform Apex or the insured that it believed the AOB was invalid until after Apex filed suit.” For USAA to prove its contention that the AOB is invalid and unenforceable under the statute, it must establish, through evidence, that the AOB and estimate do not operate as one agreement. Therefore, the court determined the alleged facts in this case cannot be determined on a motion to dismiss.  

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