DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

THE KIDWELL GROUP, LLC, d/b/a Air Quality Assessors 

of Florida, a/a/o Robert and Maureen Mucciaccio, 

Appellant,

v.

AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA,

Appellee.

No. 2D21-205

September 16, 2022

Appeal from the County Court for Charlotte County; John L. Burns, 

Judge.

Chad A. Barr of Chad Barr Law, Altamonte Springs, for Appellant.

Kimberly J. Fernandes of Kelley Kronenberg, Tallahassee, for 

Appellee.

LaROSE, Judge.

The Kidwell Group, LLC, d/b/a Air Quality Assessors of 

Florida, a/a/o Robert and Maureen Mucciaccio (Air Quality), 

appeals a final order dismissing, with prejudice, its breach-ofcontract complaint against American Integrity Insurance Company 
2

of Florida (AIIC). The trial court concluded that the assignment of 

benefits (AOB) that Air Quality obtained from the Mucciaccios was 

invalid and unenforceable under section 627.7152(2)(a), Florida 

Statutes (2019). We have jurisdiction. See Fla. R. App. P. 

9.030(b)(1)(A).

Air Quality raises two issues on appeal.1 First, whether a 

factual dispute precluded the trial court from determining that 

section 627.7152 governed the type of services Air Quality provided 

under the AOB. Second, whether section 627.7152 retroactively 

applied to this case. We affirm.

I. Background 

AIIC insured the Mucciaccios' home. The home sustained 

hurricane damage in 2017. In 2019, the Mucciaccios assigned 

postloss benefits in an AOB to Air Quality in exchange for certain 

services. Air Quality would 

1

 As Air Quality stated during oral argument, it presented 

similar arguments to the Fifth District. See 21-1000 Oral Argument 

at 14:33-17:15, Kidwell Grp., LLC. v. Am. Integrity Ins. Co. of Fla., 

339 So. 3d 1068 (Fla. 5th DCA 2022) (No. 5D21-1000), https:// 

www.youtube.com/watch?v=3q_Wv0PiKZQ. The Fifth District, in a 

rather sparse opinion that we discuss below, agreed with Air 

Quality and reversed. Am. Integrity Ins. Co. of Fla., 339 So. 3d at 

1069-70.
3

perform a non-emergency indoor environmental 

assessment and/or forensic engineering study . . . . to 

determine repairability, scope and/or categorization of 

water damage, testing for contamination including 

bacteria and/or mold in order to prepare a forensic 

engineering report and/or remediation protocol report 

that may be used to prescribe or confirm proper 

remediation procedures for the damaged property.

The AOB provided that "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."

After providing the services, Air Quality submitted its invoices 

to AIIC. AIIC refused to pay; Air Quality sued. Air Quality alleged 

in its complaint that the homeowners "suffered a loss due to water 

and/or mold, covered perils under the [AIIC] Policy," and Air Quality 

agreed to provide "reasonable and necessary assessment services to 

the [homeowners] relating to the loss" in exchange for the 

assignment of postloss insurance benefits. Air Quality attached the 

AOB to the complaint. It did not provide the insurance policy.

AIIC moved to dismiss Air Quality's complaint. AIIC argued 

that Air Quality lacked standing to sue because the language in the 

complaint and the AOB led to the "undisputed conclusion" that the 
4

AOB was an "assignment agreement" subject to section 627.7152. 

Specifically, AIIC observed that (i) the AOB did not include the 

required provisions under section 627.7152(2)(a),2 and (ii) Air 

Quality failed to comply with the presuit notice requirement of 

section 627.7152(9)(a).3

2

 The pertinent parts of section 627.7152(2)(a) require that the 

AOB contain: "a provision that allows the assignor to rescind the 

assignment agreement without a penalty or fee"; "a provision 

requiring the assignee to provide a copy of the executed assignment 

agreement to the insurer within 3 business days after the date on 

which the assignment agreement is executed or the date on which 

work begins, whichever is earlier"; "a written, itemized, per-unit cost 

estimate of the services to be performed by the assignee"; a "notice 

in 18-point uppercase and boldfaced type" regarding the rights the 

assignor is giving up to a third party and the assignor's right to 

cancel the assignment agreement; and "a provision requiring the 

assignee to indemnify and hold harmless the assignor from all 

liabilities, damages, losses, and costs, including, but not limited to, 

attorney fees, should the policy subject to the assignment 

agreement prohibit, in whole or in part, the assignment of benefits." 

§ 627.7152(2)(a)2-4, 6-7.

3

 Section 627.7152(9)(a) provides:

An assignee must provide the named insured, 

insurer, and the assignor, if not the named insured, with 

a written notice of intent to initiate litigation before filing 

suit under the policy. Such notice must be served by 

certified mail, return receipt requested, or electronic 

delivery at least 10 business days before filing suit, but 

may not be served before the insurer has made a 

determination of coverage under s. 627.70131. The 

notice must specify the damages in dispute, the amount 
5

Air Quality countered that the AOB was not an "assignment 

agreement." Although "the [assessment] report is certainly used in 

furtherance of repairs or replacements to a property," Air Quality 

maintained that "it does not actually fall within any of the 

enumerated service types within [section] 627.7152" because the 

report "does not specifically protect, repair, restore, or replace 

property or . . . mitigate against further damage to the property." 

Air Quality also argued that section 627.7152 could not apply to an 

AOB relating to an insurance policy in effect before enactment of 

the statute. 

The trial court agreed with AIIC and dismissed the complaint. 

It concluded that the AOB was an "assignment agreement" that did 

not comply with section 627.7152(2)(a). It also noted that section 

claimed, and a presuit settlement demand. Concurrent 

with the notice, and as a precondition to filing suit, the 

assignee must provide the named insured, insurer, and 

the assignor, if not the named insured, a detailed written 

invoice or estimate of services, including itemized 

information on equipment, materials, and supplies; the 

number of labor hours; and, in the case of work 

performed, proof that the work has been performed in 

accordance with accepted industry standards.
6

627.7152 applied because the AOB "was executed after the 

enactment of the statute."

II. Discussion

A. Types of Services

Air Quality argues that the complaint did not demonstrate that 

its services were governed by section 627.7152. The crux of its 

argument is that there was no basis for the trial court to determine 

that Air Quality provided any service to "protect, repair, restore, or 

replace property or to mitigate against further damage to the 

property."

AIIC, for its part, emphasizes that Air Quality conceded in the 

trial court that its assessment report is "certainly used in 

furtherance of repairs or replacements to a property." AIIC further 

asserts that, "regardless of what labels Air Quality applie[d] to its 

contract," the services were of the type enumerated in the statute.

We review the trial court's dismissal of a complaint for failure 

to state a claim de novo. See Payas v. Adventist Health 

Sys./Sunbelt, Inc., 238 So. 3d 887, 890 (Fla. 2d DCA 2018). We 

review questions of statutory interpretation de novo, as well. 

McCloud v. State, 260 So. 3d 911, 914 (Fla. 2018).
7

In ruling on a motion to dismiss, the trial court is limited to 

the four corners of the complaint and its incorporated attachments; 

"all factual allegations . . . [are] taken as true and all reasonable 

inferences . . . drawn in the appellant's favor." Payas, 238 So. 3d at 

890 (first citing Wallace v. Dean, 3 So. 3d 1035, 1042-43 (Fla. 

2009); and then citing Toney v. C. Courtney, 191 So. 3d 505, 507 

(Fla. 1st DCA 2016)); Fla. Carry, Inc. v. Univ. of Fla., 180 So. 3d 137, 

148 (Fla. 1st DCA 2015). A motion to dismiss is "designed to test 

the legal sufficiency of a complaint to state a cause of action, not to 

determine issues of ultimate fact." Howard v. Greenwich Ins. Co., 

307 So. 3d 844, 849-50 (Fla. 3d DCA 2020) (quoting Behnam v. 

Zadeh, 132 So. 3d 951, 952 (Fla. 1st DCA 2014)). Additionally, 

"[a]ffirmative defenses 'cannot ordinarily be raised by motion to 

dismiss' unless 'the face of the complaint is sufficient to 

demonstrate the existence of the defense.' " Wallisville Corp. v. 

McGuinness, 154 So. 3d 501, 504 (Fla. 4th DCA 2015) (quoting 

Ramos v. Mast, 789 So. 2d 1226, 1227 (Fla. 4th DCA 2001)).

The "complaint must allege 'a short and plain statement of the 

ultimate facts showing that the pleader is entitled to relief.' " 

Payas, 238 So. 3d at 890 (quoting Fla. R. Civ. P. 1.110(b)(2)). In 
8

this case, Air Quality needed a valid AOB to maintain a breach-ofcontract cause of action. See Gables Ins. Recovery, Inc. v. Citizens 

Prop. Ins. Corp., 261 So. 3d 613, 627 (Fla. 3d DCA 2018) ("Matusow 

did not validly assign her claim, and without the assignment, 

Gables Recovery did not have standing to sue Citizens."); see also

SFR Servs., LLC v. Indian Harbor Ins. Co., 529 F. Supp. 3d 1285, 

1298 (M.D. Fla. 2021) (explaining that "the issue of whether the 

AOB is valid is a merits question of contractual standing" that 

raises the issue of whether the plaintiff states a claim for relief).

The legislature enacted section 627.7152 in May 2019 "to 

regulate assignment agreements that seek to transfer insurance 

benefits from the policyholder to a third party." Total Care 

Restoration, LLC v. Citizens Prop. Ins. Corp., 337 So. 3d 74, 75-76 

(Fla. 4th DCA 2022); see also ch. 2019-57, §§ 1-6, Laws of Fla. "An 

assignment agreement that does not comply with [subsection (2)] is 

invalid and unenforceable." § 627.7152(2)(d). 

An "assignment agreement" is 

any instrument by which post-loss [sic] benefits under a 

residential property insurance policy or commercial 

property insurance policy, as that term is defined in 

[section] 627.0625(1), are assigned or transferred, or 

acquired in any manner, in whole or in part, to or from a 
9

person providing services to protect, repair, restore, or 

replace property or to mitigate against further damage to 

the property.[4]

§ 627.7152(1)(b) (emphasis added). The legislature excluded some 

types of assignments that are not applicable here. See

§ 627.7152(11) ("This section does not apply to: (a) An assignment, 

transfer, or conveyance granted to a subsequent purchaser of the 

property with an insurable interest in the property following a loss; 

(b) A power of attorney under chapter 709 that grants to a 

management company, family member, guardian, or similarly 

situated person of an insured the authority to act on behalf of an 

4

 During the pendency of this appeal, the legislature amended 

the term "assignment agreement" to instruments that pertain to 

"services, including, but not limited to, inspecting, protecting, 

repairing, restoring, or replacing the property or mitigating against 

further damage to the property. The term does not include fees 

collected by a public adjuster as defined in s. 626.854(1)." Ch. 

2022-268, § 18, Laws. of Fla. (2022).

The amendment took effect on May 26, 2022. Id. at § 23. It 

does not alter our disposition regarding the 2019 version of the 

statute. Cf. Dean Wish, LLC v. Lee County, 326 So. 3d 840, 850 

(Fla. 2d DCA 2021) (explaining that although "[c]ourts may look to a 

statutory amendment as clarification of the legislature's 'intent 

behind the prior version of the statute,' " this court did not need to 

"look at the 2021 amendment to discern a prior legislative intent" 

where "the Act's language before us [was] clear" (quoting Leftwich v. 

Fla. Dep't of Corr., 148 So. 3d 79, 83-84 (Fla. 2014))), review denied, 

No. SC21-1529, 2022 WL 852956 (Fla. Mar. 23, 2022).
10

insured as it relates to a property insurance claim; or (c) Liability 

coverage under a property insurance policy.").

Air Quality's AOB disclaimed that the assessment services 

were "meant to protect, repair, restore, or replace damaged property 

or to mitigate against further damage to the property." But, upon 

closer examination, we see that the AOB described the purpose of 

the assessment "to determine repairability, scope and/or 

categorization of water damage, testing for contamination including 

bacteria and/or mold in order to prepare a forensic engineering 

report and/or remediation protocol report that may be used to 

prescribe or confirm proper remediation procedures for the 

damaged property." Further, Air Quality alleged in its complaint 

that it agreed to provide "reasonable and necessary assessment 

services" relating to the damage. 

We are hard-pressed to conclude that Air Quality's assessment 

was not a service that falls within the scope of an "assignment 

agreement." As AIIC observes, "[i]f it looks like a duck, and quacks 

like a duck, then it is a duck." See generally Villamorey, S.A. v. BDT 

Invs., Inc., 245 So. 3d 909, 911 (Fla. 3d DCA 2018) ("This wellknown abductive reasoning test posits: 'If it looks like a duck, and 
11

quacks like a duck, then it is a duck.' "). The AOB is an 

"assignment agreement" under section 627.7152, regardless of Air 

Quality's attempts to disguise it as something else. 

Notably, the legislature did not exclude assessment services 

from its definition of "assignment agreement" or add such services 

to subsection (11)'s exclusion list. See § 627.7152(1)(b), (11). And, 

of course, "[i]t is not our role to act as the [l]egislature or to add 

words to the statute which do not exist." State v. Estime, 259 So. 

3d 884, 889 (Fla. 4th DCA 2018).

Accordingly, the allegations of the complaint and the AOB are 

clear; Air Quality agreed to provide services as part of the 

homeowners' efforts to remediate property damage. Cf. Wallisville 

Corp., 154 So. 3d at 504 (holding the trial court erroneously 

dismissed the complaint as barred by the statute where, "given the 

complaint's minimal factual allegations regarding the deposit, the 

trial court did not have enough information to decide the merits of 

appellees' affirmative defense").

B. Retroactivity

Air Quality stresses that the legislature enacted the statute 

after the insurance policy issued to the Mucciaccios. According to 
12

Air Quality, the statute was substantive or "accomplishe[d] a 

remedial purpose by creating new substantive rights or imposing 

new legal burdens." AIIC counters that the trial court did not apply 

the statute retroactively because the statute affects AOBs executed 

after the statute's effective date.

We review whether a statute applies retroactively or 

prospectively de novo. Love v. State, 286 So. 3d 177, 183 (Fla. 

2019). A trial court applies a statute prospectively, not 

retroactively, to a contract where the statute preexisted the 

contract. Total Care Restoration, LLC, 337 So. 3d at 76.

The statute applies to AOBs "executed on or after July 1, 

2019." § 627.7152(13); ch. 2019-57, §§ 1, 6, Laws of Fla. As Judge 

Badalamenti recently explained, subsection (2) "affect[s] rights 

under the [AOB], not substantive rights under the insurance 

policy." SFR Servs., LLC, 529 F. Supp. 3d at 1290. The statute 

provides procedural requirements for an AOB to be valid and 

enforceable. § 627.7152(2). In the legislature's view, the 

requirements address legitimate concerns of insureds and insurers. 

Cf. SFR Servs., LLC, 529 F. Supp. 3d at 1295 n.9 (recognizing the 

legislature may have "had the interests of both insureds and 
13

insurers in mind" when it passed section 627.7152 as policy 

arguments for both the insureds and insurers "were before the 

Florida Legislature in its consideration of the Act"); Fla. H.R. Comm. 

on Judiciary, CS/CS/HB 7065 (2019) Final Staff Analysis 1, 13 

(May 28, 2019), available at https://www.myfloridahouse.gov/ 

Sections/Documents/loaddoc.aspx?FileName=h7065z1.CJS.DOCX

&DocumentType=Analysis&BillNumber=7065&Session=2019

(stating that the statute "addresses the abuse of post-loss [sic] 

AOBs for property insurance claims" where the Office of Insurance 

Regulation's report of increased litigation "related to AOBs for 

property insurance claims, project[ed] recurring significant annual 

rate increases due to costs associated with such litigation, and 

predict[ed that] insurers may discontinue writing certain business 

within certain areas of the state if the trends continue"; and that 

"[t]he bill may have a positive direct economic impact on the private 

sector by reducing litigation costs for insurers and lowering 

insurance rates for consumers").

It seems beyond cavil that an assignee acquires no rights to an 

insured claim until it executes a valid AOB. See Total Care 

Restoration, LLC, 337 So. 3d at 76 ("Total Care acquired no interest 
14

in the claim until the assignment was executed. It is only when the 

assignment was executed that Total Care stood in the shoes of the 

assignor, 'able to maintain suit in its own name as the real party in 

interest.' " (quoting QBE Specialty Ins. v. United Reconstruction Grp., 

Inc., 325 So. 3d 57, 60 (Fla. 4th DCA 2021))); QBE Specialty Ins., 

325 So. 3d at 60 ("[A] third-party's ability to bring suit against an 

insurance company is predicated on it having received a valid 

assignment of benefits from the insured.").

Accordingly, the law in effect at the time the parties executed 

the AOB controls. See Total Care Restoration, LLC, 337 So. 3d at 

76-77 (focusing on the AOB's date); SFR Servs., LLC, 529 F. Supp. 

3d at 1290 (focusing on the AOB's date because "subsection 2, 

unlike subsection 10, imposes procedural requirements for [AOBs] 

to be valid and enforceable," and affect only the rights under the 

AOB, not the insurance policy).

Section 627.7152 had been in effect for months when Air 

Quality acquired the AOB. The language in the AOB reflects Air 

Quality's awareness of the statute given that it tried to disclaim its 

application. Thus, the trial court properly applied the preexisting 
15

statute; there was no retroactive application.5 See Total Care 

Restoration, LLC, 337 So. 3d at 76 ("[T]he statute was not applied 

retroactively—the trial court applied it to an assignment executed 

after the effective date of the statute."); SFR Servs., LLC, 529 F. 

Supp. 3d at 1290 ("The AOB here was undisputedly executed after

the effective date of the Act, and therefore applying the Act to the 

AOB does not amount to an impermissible retroactive application.").

Air Quality's reliance on Menendez v. Progressive Express 

Insurance Co., 35 So. 3d 873, 876 (Fla. 2010), is misplaced. 

Menendez is distinguishable. See Total Care Restoration, LLC, 337 

So. 3d at 76 (explaining that Menendez was inapplicable where it 

did not involve an AOB and "did not address . . . whether a 

subsequent contract, the [AOB] under an insurance policy, is 

subject to the notice requirements of an earlier enacted statute"); 

SFR Servs., LLC, 529 F. Supp. 3d at 1289 (illuminating that "SFR 

Services's reliance on Menendez is misplaced" because, unlike here, 

5

 We do not determine whether subsection (2) is procedural or 

substantive for purposes of retroactive application. See Total Care 

Restoration, LLC, 337 So. 3d at 77 ("Because we hold that section 

627.7152(9)(a) was not retroactively applied to the assignment, we 

do not reach the question of whether the statute is procedural or 

substantive."). 
16

the new pre-suit requirement in Menendez "deprived the vested, 

substantive rights of the insured and insurer under existing 

policies"). We similarly find the federal cases cited by Air Quality 

unpersuasive. See, e.g., CMR Constr. & Roofing, LLC v. Hartford Ins. 

Co. of the Midwest, No. 19-CV-81610, 2020 WL 264671, at *1-2 

(S.D. Fla. Jan. 17, 2020) (failing to mention whether the AOB was 

executed after the effective date of section 627.7152(10)); JPJ Cos., 

LLC v. Hartford Ins. Co. of the Midwest, No. 19-CV-81696, 2020 WL 

264673, at *1-2 (S.D. Fla. Jan. 17, 2020) (same); Procraft Exteriors, 

Inc v. Metro. Cas. Ins. Co., No. 219CV883FTM38MRM, 2020 WL 

5943845, at *2 (M.D. Fla. May 13, 2020) (involving subsection (10), 

which the court found impaired a substantive right arising out of 

the insurance policy, i.e., attorney's fees).

C. Sister Cases from the Fifth District

The Fifth District recently ruled for Air Quality in a case 

involving similar facts. Kidwell Grp., LLC. v. Am. Integrity Ins. Co. of 

Fla., 339 So. 3d 1068, 1069-70 (Fla. 5th DCA 2022). The Fifth 

District concluded that dismissal was inappropriate because the 

underlying insurance policy was not attached to the complaint. Id. 

Accordingly, the Fifth District faulted the trial court with relying on 
17

evidence outside the four corners of the complaint in dismissing the 

case. Id.

From our vantage point, the Fifth District's opinion offers 

scant facts and limited legal analysis. Judge Eisnaugle provides 

some clue to the court's reasoning, stating in his special 

concurrence that "while [Air Quality's] report might not be 

necessary, the trial court could not determine if section 627.7152, 

Florida Statutes (2019), applies without, at a minimum, the 

insurance policy." Am. Integrity Ins. Co. of Fla., 339 So. 3d at 1070 

(Eisnaugle, J., concurring specially). The opinion provides nothing 

more.

Although Air Quality failed to attach a copy of the insurance 

policy to the complaint, we are not hindered in our appellate review. 

The Fifth District's apparent focus on the underlying insurance 

contract would be a red herring if applied to this case. There seems 

to be no dispute that the property damage suffered by the

Mucciaccios is a covered claim; Air Quality alleges as much. The 

statute is obviously a legislative effort to regulate those who seek 

out "assignment agreements" from homeowners who have suffered a 

covered loss. See § 627.7152. The statute's procedural 
18

requirements are directed at the AOB, not the insurance policy. 

See § 627.7152(2); SFR Servs., LLC, 529 F. Supp. 3d at 1290 

("[S]ubsection 2(a)(4) does not affect whether benefits under a policy 

can be assigned but only how that assignment can be 

accomplished—in other words, the procedures that need to be 

followed."). Accordingly, our focus must remain on the operative 

document that is central to this appeal, the AOB. Efforts to rely on 

a separate contract, the insurance policy, are distractions.

In fact, after its American Integrity Insurance Co. opinion, the 

Fifth District clarified that "the operative date for purposes of 

[section 627.7152] is the date of the [AOB], not the date the 

insurance policy was issued."6 Kidwell Grp., LLC v. Olympus Ins. 

Co., 47 Fla. L. Weekly D1571, D1571 (Fla. 5th DCA July 22, 2022). 

The Fifth District further explained that the assignee cannot "step[] 

6

 The Fifth District noted that the statute's legislative history 

was irrelevant and relied solely on the statute's plain language to 

determine that "the trial court properly applied section 627.7152 

prospectively to the assignment agreement in [its] case." Kidwell 

Grp., LLC v. Olympus Ins. Co., 47 Fla. L. Weekly D1571, D1571-72 

n.4 (Fla. 5th DCA July 22, 2022). Although we briefly mentioned 

above the legislature's view to provide the statute's full context, we 

recognize and agree that the statute's plain language, alone, is 

sufficient to reach our disposition here.
19

into the shoes" of the insured when the statute in effect at the time 

of the AOB "dictat[ed] otherwise." Id. That is the same legal 

sentiment we apply here. Because Air Quality did not execute a 

valid AOB under the statute in effect at the time, Air Quality 

remains a stranger to the insurance policy. See Olympus Ins. Co., 

47 Fla. L. Weekly at D1571 (reasoning that "Kidwell never 

successfully stepped into the shoes of the insured" because it never 

entered a valid and enforceable AOB); Total Care Restoration, LLC, 

337 So. 3d at 76; QBE Specialty Ins., 325 So. 3d at 60.

III. Conclusion

We conclude that the trial court correctly applied section 

627.7152(2) to the AOB. See Olympus Ins. Co., 47 Fla. L. Weekly at 

D1571; Total Care Restoration, LLC, 337 So. 3d at 76-77; SFR 

Servs., LLC, 529 F. Supp. 3d at 1290-91. Accordingly, the trial 

court properly dismissed the case. See Wallisville Corp., 154 So. 3d 

at 504. 

Affirmed.

CASANUEVA and SMITH, JJ., Concur.

Opinion subject to revision prior to official publication.