23 Fla. L. Weekly Supp. 878c
Online Reference: FLWSUPP 2308OVERInsurance — Automobile — Windshield replacement — Discovery — Windshield repair shop is entitled to discovery of amounts paid by insurer for replacement of like windshields in state during six-month period, copy of policy, any documents insurer intends to rely on to establish that insurer reimbursed “prevailing competitive labor rate” and any agreements between insurer and third-party that sent pre-suit correspondence withholding payment for claim
CLEAR VISION WINDSHIELD REPAIR, LLC a/a/o SHANELL OVERALL-MUHAMMAD, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-010583 COCE 50. December 14, 2015. Honorable Peter B. Skolnik, Judge. Counsel: Emilio Roland Stillo, Andrew B. Davis-Henrichs, and Mac S. Phillips, for Plaintiff. Brooke Beebe and George Hooker, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO COMPELBETTER RESPONSES/OVERRULE DEFENDANT’SOBJECTIONS TO PLAINTIFF’S REQUEST FORPRODUCTION AND FOR ATTORNEYS FEES
THIS CAUSE came before the Court on December 8, 2015 for hearing, and the Court, having reviewed the motion and entire court file; having reviewed the relevant legal authorities; having heard argument of counsel; and having been sufficiently advised in the premises,
ORDERS AND ADJUDGES the Plaintiff’s Motion to Compel Better Responses/Overrule Defendant’s Objections to Plaintiff’s Request for Production and for Attorneys Fees is granted as follows for the reasons set forth below:Background
On or about March 2, 2015 the Defendant’s insured, Shanell Overall-Muhammad, incurred windshield damage to her automobile. As a result, the insured retained the services of Clear Vision Windshield Repair, LLC (hereinafter referred to as “Plaintiff” or “Clear Vision”) to replace the damaged windshield. Plaintiff accepted an assignment of benefits from the insured, inter alia, in consideration for the windshield replacement services performed. Plaintiff submitted its bill for the windshield replacement services to Defendant.
In response to Plaintiff’s bill, Plaintiff received correspondence generated by Safelite Solutions. The correspondence indicates payment of Plaintiff’s bill is being withheld because “pricing approval is required.”
The applicable policy requires that Defendant pay for the loss “subject to” the following limit of liability:
d. In determining the amount necessary to repair damaged property to its pre-loss physical condition, the amount to be paid by us:
(i) Will 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 nee, reconditioned, remanufactured, or used, including, but not limited to:
(a) original manufacturer parts or equipment; and
(b) non-original manufacturer parts or equipment.
[Emphasis added]
On April 30, 2015, Plaintiff filed suit for nonpayment of comprehensive and collision property damage insurance benefits pursuant to a contract of insurance issued to Progressive’s insured.
On October 5, 2015, Defendant filed an Answer and Affirmative Defenses. Affirmative Defense number 4 states in relevant part:
Plaintiff cannot maintain an action for breach of contract against Progressive because Plaintiff and Progressive never entered into a contract. Plaintiff’s invoice exceeds Progressive’s in-network reimbursement rate. Plaintiff was aware, or should have been aware, that the invoice was in excess of Progressive’s in-network reimbursement rate. Because Plaintiff and Progressive did not have the requisite meeting of the minds, any alleged contract between Plaintiff and Progressive is void ab initio.
[Emphasis added]
There is no requirement in the policy that the Plaintiff and Progressive enter into any type of contract. There is no language in the policy limiting reimbursement to an “in-network reimbursement rate.” Assuming the limit of liability is even applicable, Defendant must establish that Plaintiff’s charge exceeded the prevailing competitive labor rates charged where the property was repaired.
Further, at the hearing the Plaintiff provided the following verified interrogatory answer in Clear Vision Windshield Repair LLC (Jennifer Beckles) v. Progressive America Ins. Co., Case No.: 14-018722 COCE (50) [23 Fla. L. Weekly Supp. 486a]1:
3. Please state how specifically the Defendant determined the amount to be paid under the applicable policy of insurance.
ANSWER: Progressive determines the amount necessary to repair damaged windshield glass under the applicable policy of insurance by evaluating nationwide and statewide invoicing by windshield glass repair shops, and weighing the percentage of windshield glass repair shops which invoice repairs at or below the current Progressive maximum rate for windshield glass repairs to be performed in the State of Florida.
The answer is unresponsive to the question and references a previously undisclosed “maximum rate” for windshield glass repairs.
Plaintiff propounded discovery upon Defendant on October 5, 2015, in the form of Request for Production. Defendant filed its responses to Plaintiff’s Request for Production on November 19, 2015. Neither a privilege long nor even one document was produced in response to Plaintiff’s discovery request.
Plaintiff seeks better responses to the following production requests:
2) A list of all amounts paid for the past five years for replacement of the same type of windshield as the one at issue in this case.
RESPONSE: In addition to its General Objections, this request is overbroad in both timeframe and scope. Progressive further objects as this Request is irrelevant to this cause, as well as vague and ambiguous to the extent Plaintiff seeks “all” amounts paid. Additionally, Progressive considers its written materials, policies, and contracts as confidential and proprietary information, inclusive of any financial data under Chapter 688 of the Florida Statutes.
The Defendant provided no basis at the hearing why the request called for proprietary or confidential information nor articulated any harm in producing the information. The Defendant’s objections are overruled as to number 2 however; the request shall be narrowed in time to a list of all amounts paid 3 months before and 3 months after the Plaintiff rendered services in the instant action. Further, the list shall be limited to the State of Florida.
3) Any and all agreements Progressive or any of its entities has for administering and handling glass/windshield repair or replacement claims under the comprehensive/collision provision of its policy with any third parties.
RESPONSE: In addition to its General Objections, this request is overbroad in both timeframe and scope. Progressive further objects as this Request is irrelevant to this cause, as well as vague and ambiguous to the extent Plaintiff seeks “all” amounts paid. Additionally, Progressive considers its written materials, policies, and contracts as confidential and proprietary information, inclusive of any financial data under Chapter 688 of the Florida Statutes.
The Plaintiff has provided the Court with correspondence to Plaintiff withholding payment in the instant claim from a third party Safelite Solutions. The correspondence contains Safelite’s letterhead and contact information but also purports to be from Progressive’s claims department. The document contains no names nor is it signed. The policy of insurance contains no requirement that “services be pre-approved” nor does the policy of insurance reference an “in network” reimbursement rate. The Plaintiff contends these non-contractual terms must only be found in the agreement between the Defendant and Safelite. Further, the Plaintiff contends that bias and impeachment may be discovered to cross examine both the Progressive and Safelite corporate representatives at trial. If the Defendant has delegated the adjustment of the claim to Safelite and they are not utilizing the policy methodology to process then the Plaintiff is entitled to present to the jury their motivation, basis and authority for same.
At the hearing the Defendant could not confirm the existence of any written agreement nor articulate if there was an agreement and the basis of a “confidential” and “proprietary” objection. The Defendant provided no documents in response to the production request. At hearing was the time for the Defendant to substantiate any objection.
The Defendant did not even inquire prior to the hearing if there was an agreement between the Defendant and Safelite so that the Defendant could articulate an objection. Further, the Defendant did not and could not articulate any harm in producing the agreement if one in fact exists.
Conversely, the Plaintiff has established a reasonable necessity to explore the agreement in light of Safelite’s pre-suit correspondence to the Plaintiff requiring “pre-approval”, Defendant’s assertion of a “maximum rate” and Defendant’s non-contractual Affirmative Defense of exceeding the “in-network reimbursement rate.” As the policy references no “network,” nor requires “preapproval” it is reasonably necessary and relevant for the Plaintiff to explore extra contractual “networks” which may be found in the agreement as well as under what authority a third party would require “pre-approval” . Thus, the Plaintiff has shown a reasonable necessity for the information, which is relevant to Plaintiff’s claim for breach of contract and the Defendant is unaware of the existence of the contract and has articulated no harm in producing same if one exists. The Defendant did not request an in-camera inspection of the agreement at the hearing. As no request for an in-camera inspection was made at the hearing nor did the Defendant articulate any harm or proprietary objection at the hearing the Court orders the production of the agreement.
Defendant’s objections are overruled. The Plaintiff is entitled to better responses to number 3, however; the request shall be limited to those agreements with any third parties in effect at the time the applicable policy at issue was in control.
7) A true and correct copy of any and all insurance policies that would inure to the benefit of Plaintiff herein, together with any Declaration of Coverage page and sworn statement of a corporate officer of Defendant attesting to the coverage and authenticity of the policy as required by Florida Statutes.
RESPONSE: In addition to its General Objections, this request is overbroad in both timeframe and scope. Progressive further objects as this Request is irrelevant to this cause, as well as vague and ambiguous to the extent Plaintiff seeks “all” amounts paid. Additionally, Progressive considers its written materials, policies, and contracts as confidential and proprietary information, inclusive of any financial data under Chapter 688 of the Florida Statutes.
The Defendant’s objections are overruled. The Plaintiff is entitled to better responses to number 7. The Defendant shall furnish a copy of the applicable policy of insurance at issue.
With respect to numbers 8, 24, and 26, the Defendant shall provide responses and a privilege log.
30) Any and all documents Defendant intends to rely on to establish the Defendant reimbursed Plaintiff “the prevailing competitive labor rate” amount of the service provided in this case.
RESPONSE: In addition to its General Objections, this request is overbroad in both timeframe and scope and irrelevant to this cause. Progressive specifically objects to the extent this Request seeks information which is both work product and attorney client privilege.
This Court finds the Plaintiff is entitled to better responses to number 30. The Defendant’s objections are overruled.
ORDERED and ADJUDGED that Plaintiff’s Motion is GRANTED as to numbers: 2, 3, 7, and 30. Defendant has 30 clays to provide better responses. With respect to numbers 8, 24, and 26, the Defendant shall provide responses and a privilege log within 30 days.
__________________
1This case is also pending in the Court’s division.
