22 Fla. L. Weekly Supp. 1082b
Online Reference: FLWSUPP 2209VEGAInsurance — Automobile — Windshield repair — Timeliness of payment — Amended complaint in windshield repair service’s action against insurer fails to plead allegations that would create material breach of insurance contract based on timeliness of payment where undisputed facts establish that there is no “time is of the essence” clause in contract, and plaintiff did not make sufficient demand for payment
GLASSMAX, INC., a/a/o Juan Vega, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Manatee County, Civil Division. Case No. 2014-SC-002932, Division 2. March 9, 2015. Douglas Henderson, Judge. Counsel: Christopher J. Martin, for Plaintiff. Brendan McKay, Banker Lopez Gassler, St. Petersburg, for Defendant.
ORDER DISMISSING PLAINTIFF’S AMENDEDCOMPLAINT WITH PREJUDICE
THE ABOVE CAPTIONED cause came on to be heard upon Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint. After reviewing the file and being otherwise fully advised in the premises it is
ORDERED and ADJUDGED:
1. Plaintiff is in the business of providing auto glass replacement services. Plaintiff entered into an agreement with Defendant’s insured, Juan Vega, to replace his windshield in exchange for an assignment of Juan Vega’s right to payment of insurance benefits, pursuant to the terms and conditions of Juan Vega’s policy of insurance with the Defendant. Plaintiff then filed this lawsuit alleging a breach of the applicable insurance contract seeking full payment of its bill for the windshield replacement.
2. Both parties agree that Plaintiff’s bill for the windshield replacement at issue in this case was paid by Defendant, State Farm Mutual Automobile Insurance Company in full prior to Plaintiff amending its Complaint to sue the entity that issued the applicable policy of insurance, State Farm Mutual Automobile Insurance Company.
3. Consequently, the only remaining issue in the case was whether Defendant breached the applicable insurance contract due to the timeliness of its payment.
4. Plaintiff’s Amended Complaint fails to plead allegations and supporting facts that if taken as true would create a material breach of the insurance contract based on the undisputed material facts that there is no “time is of the essence” clause in the contract, nor did Plaintiff ever make a sufficient demand for payment.
5. As a result, Plaintiff has not plead a material breach of the applicable insurance contract based on the time frame for Defendant’s payment.
6. Accordingly, Plaintiff’s Amended Complaint is Dismissed with Prejudice.
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