22 Fla. L. Weekly Supp. 825b
Online Reference: FLWSUPP 2207LUSNInsurance — Automobile — Action for balance of claim for windshield replacement paid at reduced rate — Count alleging breach of contract by failing to pay claim within reasonable time is dismissed with prejudice — Plaintiff has not alleged any policy term or statutory provision governing timeliness of payment for windshield loss claims — Count alleging breach of contract by failing to pay appropriate and adequate amount on claim is dismissed without prejudice where plaintiff has failed to allege policy terms breached — Plaintiff is not required to allege specific amount due and need only allege general damages unless he has items of special damages — Count seeking declaratory judgment as to propriety of insurer’s competitive bid process is dismissed without prejudice, as plaintiff has failed to allege necessary elements of declaratory action
MARK LUSNIA, as assignee of-for Ellen Opalecky, d/b/a ATLAS AUTO GLASS, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 12-6187-SC. January 9, 2015. Kathleen T. Hessinger, Judge. Counsel: Lee Jacobson, Orlando, for Plaintiff. Dale Parker and Scott Hutchens, St. Petersburg, for Defendant.
ORDER DISMISSING PLAINTIFF’S AMENDED COMPLAINT
This Cause came to be heard before this Court on Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint with the Parties present, through counsel, and this Court having heard argument and being otherwise advised of the premises, it is hereby
Ordered and Adjudged as follows,
1. This is a windshield loss case, wherein Plaintiff replaces windshields on automobiles. Plaintiff replaced the windshield on Defendant’s insured’s automobile, took an assignment of benefits and, thereafter, made a claim against the insured’s insurance company, Defendant. Plaintiff sent an invoice for payment, in the amount of $1,002.42, to Defendant, on July 24, 2012, and filed a Complaint for breach of contract against Defendant on September 12, 2012. Prior to being served with the Complaint, Defendant paid $609.04 to Plaintiff, on September 20, 2012. Plaintiff then served Defendant with the Complaint on October 8, 2012.
2. The allegations, in the original Complaint, state that Plaintiff submitted a reasonably priced bill to Defendant, it was not paid and the action was for Defendant’s failure to pay full value for the benefits described therein. Plaintiff alleged that Defendant failed or refused to pay Plaintiff’s bill, in full. He further alleged that Defendant’s refusal to reimburse Plaintiff adequately for the services provided, and otherwise make Plaintiff whole, was a breach of contract.
3. On January 15, 2014, this Court set this matter for jury trial beginning July 7, 2014. On June 16, 2014, this Court heard twelve Motions for Summary Judgment, four from Plaintiff and eight from Defendant. By the conclusion of all the motions, it was clear that the issues in the lawsuit were not the issues alleged in the Complaint, filed in 2012. Plaintiff claimed the issues were whether Defendant breached the contract by (1) failing to pay the $609.04 in a reasonable time after the submission of the claim and (2) failing to obtain a “competitive bid” pursuant to the policy. Defendant argued that these issues were not alleged in the Complaint and it should not have to proceed to trial on issues not alleged. This Court agreed and continued the trial giving Plaintiff 20 days to amend the Complaint to set forth the above issues as argued by Plaintiff.
4. Plaintiff filed a three count Amended Complaint on July 17, 2014 and Defendant filed a Motion to Dismiss thereafter, on August 6, 2014.
5. Plaintiff’s Amended Complaint alleges, in Count I, breach of contract for failure to pay Plaintiff’s bill within a reasonable period of time. Count II is a breach of contract claim alleging that Defendant “breached the policy of insurance by not paying the appropriate and adequate amount as required under the policy’s term and conditions.” Plaintiff filed for a Declaratory Judgment, as Count III, alleging Defendant’s “competitive bid” process, pursuant to the policy of insurance, is vague and ambiguous, not a bona fide competitive bid process, and an unsuitable use of a valid, true industry competitive bid process.
6. As stated, Plaintiff now alleges, in Count I of the Amended Complaint, breach of contract for failure to pay the claim within a reasonable time. Plaintiff fails to allege any applicable policy terms and conditions as to the time of payment and fails to allege any statutory provisions for timeliness of payment for a windshield/property damage claim. Plaintiff generally argues that when a contract does not state a specific time for performance, then the party must perform within a reasonable time. Defendant argues that Plaintiff must allege that “time was of the essence” for a failure to perform within a reasonable time. Neither party cites to any cases involving a primary cause of action for breach of contract against an insurance carrier for failure to pay within a reasonable time. Plaintiff cites to Fla. Std. Jury Instr. (Civ.) 416.19 that states “if a contract does not state a specific time within which a party is to perform a requirement of the contract, then the party must perform the requirement within a reasonable time.” This jury instruction cites to a case involving an insurance policy, Sims v. Am. Hardware Mut. Ins. Co., 429 So. 2d 21, 22 (Fla. 2d DCA 1982), but this case involves whether the insured gave notice to the insurer “as soon as practicable” pursuant to the policy. The point, in Sims, is that it is a jury question as to what is “as soon as practicable.” This Court, on its own research, has found no cases addressing a breach of contract action for failure to pay insurance proceeds within a reasonable time.
7. Under Florida law, if the insured believes the insurance company is failing to pay its claim pursuant to the policy, the insured, or in this case, the assignee, has two options. Under the first option, the insured can file a breach of contract complaint for failing to pay pursuant to the specific provisions of the policy of insurance. Plaintiff attempted this in the original Complaint, but failed to allege a breach of contract based on any provision of the policy. The insured’s second option is to provide a civil remedy notice, pursuant to §624.155, Fla. Stat. (2014), follow the conditions precedent and proceed accordingly. See Talat Enterprises, Inc. v. Aetna Cas. and Surety Co., 753 So. 2d 1278 (Fla. 2000) [25 Fla. L. Weekly S172a]. As no cause of action exists as alleged by Plaintiff, Count I is DISMISSED with prejudice. This Court notes this matter was filed in small claims wherein the Plaintiff need only state a claim, but the Parties agreed to invoke the full rules of civil procedure; thus, requiring Plaintiff to file a cause of action. Furthermore, based on the issues herein, Plaintiff failed to allege a legal claim even under the small claims rules.
8. As also stated, Plaintiff alleges, in Count II, that Defendant breached the policy of insurance by “not paying the appropriate and adequate amounts as required under the applicable policy’s terms and conditions.” Plaintiff alleges essentially the same claim in this Count II of the Amended Complaint as he alleged in Count I of the original Complaint which caused the trial to be cancelled. In Count I of the original Complaint, Plaintiff alleged he submitted a reasonably priced bill and Defendant failed to reimburse him adequately for the services provided. If Plaintiff is alleging a breach of the terms and conditions of the policy of insurance then Plaintiff must specifically allege the terms of the policy for which he makes claim and the terms for which Defendant breached. Plaintiff must also allege how Defendant breached the terms of the policy of insurance and that he suffered damages. Count II is DISMISSED without prejudice for failure to state a cause of action. Plaintiff has 20 days from the date of this order to amend this breach of contract count.
9. This Court notes that Defendant argues that Plaintiff must allege the specific amount due under the contract. Defendant is incorrect. Plaintiff need only allege general damages unless he has items of special damages. Special damages must be specifically stated. See Fla. R. Civ. P. 1.120(g). Defendant relies on Fla. Std. Jury Instr. (Civ.) 504.6 to support its argument; however, the jury instruction states that the claimant must prove the amount due under the contract. (emphasis added) Moreover, the case relied on by Defendant, Avante at Boca Raton, Inc. v. Senior Care Pharmacy of Florida, LLC, 113 So. 3d 874, 879 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D2454a], states it is the Plaintiff’s burden in a case to establish proof of damages by competent evidence. (emphasis added) The jury instruction and case discuss the burden of proof at trial, not the pleading of damages in the complaint. Plaintiff can generally plead damages, but must prove the damages at trial. Nominal damages may be awarded when a breach of contract is proven, but there is insufficient evidence to ascertain a particular amount of loss. Muroff v. Dill, 386 So. 2d 1281, 1284 (Fla. 4th DCA 1980).
10. Count III attempts to set forth a Declaratory Judgment action, pursuant to Ch. 86, Fla. Stat.; however, it reads as a Motion for Summary Judgment and sets forth Plaintiff’s argument in support thereof. Pursuant to §86.021, Fla. Stat., Plaintiff must allege that there is a bona fide dispute between the parties and that the moving party has a justiciable question as to the existence or non-existence of some right or as to some fact upon which the existence of such right may depend, that Plaintiff is in doubt as to the right and that there is a bona fide, actual, present need for the declaration. Angelo’s Aggregate Material, LTD. v. Pasco Co., 118 So. 3d 971, 974 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D1715b]. Count III is DISMISSED without prejudice with leave to amend said count within 20 days of this order. In alleging the necessary elements of the Declaratory Action, Plaintiff must set forth the facts supporting the bona fide dispute between the parties, including identifying the policy provision in dispute (this Court notes this count is the only count that actually identifies the provision at issue), and set forth the justiciable question before this Court. In amending Count III, Plaintiff needs to delete the extraneous conclusions, argument, and alleged expert opinions, which appears to be most of the paragraphs in Count III.
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