23 Fla. L. Weekly Supp. 586a
Online Reference: FLWSUPP 2306LUSNInsurance — Automobile — Windshield replacement — Repair shop’s complaint seeking payment of benefits for windshield replacement is dismissed with leave to amend complaint by stating policy provisions breached, how provisions were breached and damages suffered — Count alleging that insurer breached policy by failing to pay for glass replacement within “reasonable time” is dismissed without prejudice — Count seeking declaratory relief as to insurer’s competitive bid process is dismissed with leave to amend complaint by alleging existence of bona fide dispute and justiciable question as to existence of some right or fact on which some right depends and setting forth facts supporting dispute
MARK LUSNIA d/b/a ATLAS AUTO GLASS, a/a/o JOE TRAYNHAM, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 14-005065SC, Division N. September 10, 2015. Honorable John Carassas, Judge. Counsel: Lee Jacobson, for Plaintiff. Brendan McKay and Dale Parker, Banker Lopez Gassler, St. Petersburg, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TODISMISS PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE came before the Court on August 12, 2015, on Defendant’s Motion To Dismiss Plaintiff’s Amended Complaint, with the court having heard the argument of counsel and being otherwise fully advised, it is ORDERED AND ADJUDGED that:
1. Plaintiff is a sole proprietor, d/b/a Atlas Auto Glass, who is in the business of providing auto glass replacement services. Plaintiff alleges he entered into an agreement with Defendant’s insured, Joe Traynham, to replace his windshield in exchange for an assignment of his right to payment, pursuant to the terms and conditions of his policy of insurance with the Defendant.
2. Plaintiff submitted the invoice and assignment to Defendant at some point after the windshield replacement was performed. At some point after Defendant received the invoice and assignment from Plaintiff, Defendant issued payment to Plaintiff for the windshield replacement at issue.
3. Plaintiff filed a single count complaint alleging breach of contract for failure to reimburse Plaintiff “adequately” for the windshield replacement at issue.
4. Plaintiff subsequently filed a three count Amended Complaint. Count one of Plaintiff’s Amended Complaint alleges that Defendant breached the applicable insurance contract by failing to pay Plaintiff for the windshield replacement at issue within a “reasonable time.” Count two alleges that Defendant failed to make payment “. . .adequately and appropriately under the terms and conditions of the policy of insurance for the services provided and otherwise make Plaintiff whole, is a breach of contract.” Count three seeks declaratory relief under Chapter 86, Florida Statutes and alleges that Defendant’s “competitive bid” process, pursuant to the policy of insurance is vague and ambiguous, not a bonafide competitive bid process, an unsuitable use of a valid, true industry competitive bid process and illegal or void as against public policy.
5. No cause of action for breach of the applicable insurance contract as to the timeframe of Defendant’s payment exists as alleged by Plaintiff in Count One of Plaintiff’s Amended Complaint. Therefore, Count one, alleging that Defendant breached the applicable insurance contract by failing to pay Plaintiff for the windshield replacement at issue within a “reasonable time” is dismissed without prejudice.
6. 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 Plaintiff believes Defendant breached. Plaintiff must also allege how Defendant breached the terms of the policy of insurance and that Plaintiff suffered damages. Therefore, Count two alleging that Defendant failed to make payment “. . .adequately and appropriately under the terms and conditions of the policy of insurance for the services provided and otherwise make Plaintiff whole, is a breach of contract,” is dismissed without prejudice.
7. If Plaintiff is attempting to seek declaratory relief, 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.
8. 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.
9. In amending Count III, Plaintiff must also delete the extraneous conclusions, argument, and alleged expert opinions, which appear to be most of the paragraphs in Count III.
10. Due to the foregoing, Count three seeking declaratory relief under Chapter 86, Florida Statutes and alleging that Defendant’s “competitive bid” process, pursuant to the policy of insurance is vague and ambiguous, not a bonafide competitive bid process, an unsuitable use of a valid, true industry competitive bid process and illegal or void as against public policy is also dismissed without prejudice.
11. Plaintiff is afforded 30 days from the date this Order is entered to file a Second Amended Complaint that complies with the pleading requirements set forth herein.
