15 Fla. L. Weekly Supp. 1214a
Insurance — Automobile — Comprehensive — Limits of liability — Windshield replacement — Limits of liability provisions of insurance contract at issue clearly contemplates that a repair includes replacement of parts and equipment, such as windshields — Accordingly, whether windshield replacement is termed repair or replacement, limits of liability provision applies to breach of contract claim brought by glass repair shop
JONALISA, INC., d/b/a GLASS DOCTOR, a/a/o MICHAEL KELLY, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 06-10180. October 7, 2008. Donald C. Evans, Senior Judge. Counsel: Donald A. Myers, Jr., Bailey & Myers, P.A, for Plaintiff. Robert M. Lyerly, Masten, Lyerly, Peterson, Denbo & Gobel, LLC, Orlando, for Defendant.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT: REPAIR vs. REPLACE
THIS CAUSE having come before the Court on Defendant’s Motion for Partial Summary Judgment (Repair v. Replace), and after having considered the arguments of counsel and reviewing the record evidence, the Court finds as follows:
Undisputed Facts
For purposes of the Motion for Partial Summary Judgment (Repair v. Replace), it is undisputed that Defendant issued a personal automobile insurance policy to Michael L. Kelly which provided Comprehensive Coverage subject to the terms and conditions of the applicable policy of insurance. During the applicable policy period, the windshield of the insured’s vehicle was damaged such that it had to be replaced. The damage to the vehicle was covered under the Comprehensive Coverage provision of the policy, which provides in pertinent part as follows:
LIMITS OF LIABILITY
1. The limit of liability for loss to a covered vehicle, non-owned vehicle, or trailer is the lowest of:
a. the actual cash value of the stolen or damaged property at the time of the loss, reduced by the applicable deductible shown on the Declarations Page, and by its salvage value if you or the owner retain the salvage;
b. the amount necessary to replace the stolen or damaged property to its pre-loss condition, reduced by the applicable deductible shown on the Declarations Page, and by its salvage value if you or the owner retain the salvage;
c. the amount necessary to repair the damaged property to its pre-loss physical condition, reduced by the applicable deductible shown on the Declarations Page; or
d. Any applicable Limits of Liability or Stated Amount Vehicle Coverage elected by you, reduced by its salvage value if you or the owner retain the salvage.
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2. Payments for loss covered under Collision Coverage, Comprehensive Coverage, Custom Parts or Equipment Coverage and Additional Custom Parts or Equipment Coverage are subject to the following provisions:
* * *
e. in determining the amount necessary to repair damaged property to its pre-loss physical condition, the amount to be paid by us:
(i) Shall not exceed the prevailing competitive labor rates charged in the area where the property is to be repaired, and the cost of repair or replacement parts and equipment, as reasonably determined by us; and
(ii) Will be based on the cost of repair or replacement parts and equipment which may be new, reconditioned, remanufactured or used, including but not limited to:
(a) original manufacturer parts or equipment; and
(b) nonoriginal manufacturer parts or equipment;
The insured or a representative of the insured retained the services of Plaintiff to repair the vehicle by replacing the windshield. Pursuant to the purported assignment of benefits, Plaintiff billed Defendant for repairing the vehicle by replacing the windshield. The assignment of benefits specifically provides that the insured assigned “any and all Comprehensive and/or Collision Benefits from my insurance company and/or the insurance company affording Comprehensive and/or Collision coverage for the vehicle repaired or to be repaired. (emphasis added) According to Exhibit “B” to Plaintiff’s Complaint, Plaintiff billed $444.25 for the windshield replacement, and Progressive paid Plaintiff $274.31 for the windshield replacement.
Originally, Plaintiff filed a one count complaint alleging a cause of action for breach of contract based on Defendant’s failure to pay the entire amount billed. After prosecuting the breach of contract action for an extended period, Plaintiff filed an Amended Complaint that included two actions for declaratory relief (Counts II and III). The actions for declaratory relief were based on Plaintiff’s allegations that the terms “repair,” “replace,” and “amount necessary” were unambiguous so long as its interpretation of the policy controlled; and the alternative allegation that the terms were ambiguous and should be interpreted against Defendant in the event that the Court did not agree with Plaintiff’s interpretation of the policy.
On February 8, 2008, a five (5) judge panel representing all Hillsborough County Judges who were presiding over the approximately 60 cases filed by Plaintiff, heard Defendant’s Motion to Dismiss Counts II and III of Plaintiff’s Amended Complaint. Defendant requested that the Court dismiss both counts for declaratory relief pursuant to the Florida Supreme Court’s decision in Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732 (Fla. 2002) and the plain language of Section 2e of the Limits of Liability quoted above which clearly indicate that the vehicle was repaired by replacing a part, in this case the windshield. Defendant also cited to the dictionary definitions of “repair” and “replace”; the definition of a “motor vehicle repair shop” and “motor vehicle repairs” found in Florida Statutes, §559.903(6) and (8); several federal cases defining “automobile repairs” and “body repair work”; and Plaintiff’s own assignment of benefits which acknowledged that the vehicle was repaired by replacing the windshield.
During the hearing, Plaintiff argued that there was a present practical need for the declarations because it believed that it was entitled to reimbursement under the replacement provision while Progressive believed that Plaintiff’s reimbursement was under the repair provision of the policy. Since the term “amount necessary” was defined as it related to the repair provision, Plaintiff conceded that Count II, the action to interpret the term “amount necessary,” was only necessary if the Court ruled that the replacement provision applied.
Plaintiff argued that Defendant’s reliance on the Siegle decision was misplaced because the policy reviewed by the court included both the terms “repair” and “replace” in the same paragraph and that the present policy separated the terms “repair” and “replace”. Plaintiff also argued that the Florida Supreme Court qualified its ruling to the policy before it such that the Court’s ruling should not be applied in this case. Moreover, Plaintiff argued that there was “ample evidence to support the fact that Progressive itself drew a distinction between repair and replacement. And particularly when it came to window glass.”
More specifically, Plaintiff argued that Progressive made a distinction between the repair and replacement of window glass because another provision of the policy provided that a deductible did not apply when the window glass is repaired instead of replaced. Plaintiff also acknowledged that the aforementioned provision applied to window glass generally and that another provision of the policy specifically provided that a deductible did not apply to windshields regardless of whether the windshield was repaired or replaced. The same arguments were made in opposition to Defendant’s Motion for Partial Summary Judgment (Repair v. Replace).
Judge Anderson, the Judge presiding over this matter acknowledged that “I think the word “replacement” includes the money to replace it. [talking about the insured vehicle] It’s not just a strict replacement of the vehicle itself. It can be the cost.” Ultimately, the five judges who heard the arguments of the parties all agreed that there was no need for a declaration in any of the approximately 66 cases filed by Plaintiff in Hillsborough County.
While the judges agreed that the windshield was replaced, the court found that there was no need for a declaration because the policy was unambiguous due to the Siegle decision and under Section 2e of the Limits of Liability. The Court went on to state that “whether it’s a repair or replacement, whatever you want to call it, it is covered by those payment provisions, which do not distinguish between how a fix is labeled. It clearly says what is says there, which we all find to be unambiguous.” (emphasis added) Ultimately, the court dismissed Counts II and III with prejudice because the court did not think that the policy was ambiguous. Plaintiff did not seek a rehearing or appeal the dismissal with prejudice.
The court acknowledges that the five judge panel did not specifically rule on the contract claim, only whether the policy was ambiguous as alleged by Plaintiff. Defendant filed the present motion to obtain a final ruling, as a matter of law, that section 2e of the Limits of Liability apply to the breach of contract claim and asked for a declaration regarding the applicable standard of proof. This Court is not ruling at this time on the standard of proof, only whether Section 2e of the Limits of Liability apply to the claims identified in the breach of contract action.
Conclusions of Law
This court agrees and feels bound by the prior decision on this very matter. The policy is unambiguous. Regardless whether it is called a repair or replacement, Section 2e of the Limits of Liability clearly contemplates that a repair includes the replacement of parts and equipment, such as windshields. Consistent with the applicable rules of statutory construction, this court cannot ignore this provision of the policy. It must read the policy as a whole, endeavoring to give every provision its full meaning and operative effect. General Star Indem. v. West Fla. Village Inn, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004). To do so would mean that this Court would have to rewrite Section 2e of the Limits of Liability and remove the phrase “and replacement parts and equipment,” which is specifically prohibited by applicable rules of construction. The parties are bound by, and this court is powerless to re-write, the clear and unambiguous terms of the policy. It is not the role of this court to make an otherwise valid contract more reasonable from the standpoint of the Plaintiff. Medical Ctr. Health Plan v. Brick, 572 So. 2d 548 (Fla. 1st DCA 1990).
Based on the foregoing, Defendant’s Motion for Partial Summary Judgment is GRANTED. Section 2e of the Limits of Liability applies to Plaintiff’s breach of contract claim.
