23 Fla. L. Weekly Supp. 959a

Online Reference: FLWSUPP 2309MLUSInsurance — Automobile — Windshield replacement — Insurer is entitled to summary judgment on count of repair shop’s complaint alleging breach of contract by failing to pay claim within reasonable time where there is no genuine issue of material fact that policy does not contain any specified time in which payment is required to be made — Opposing affidavit averring that repair shop is required to pay for auto glass within 30 days or be charged interest does not preclude summary judgment — Motion to amend complaint is denied as futile

MARK LUSNIA d/b/a ATLAS AUTO GLASS, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case Nos. 2013-SC-161-O, 2013-SC-2280-O, 2013-SC-4866-O, 2012-SC-12027-O, and 2012-SC-6871-O. November 30, 2015. Tina L. Caraballo, Judge. Counsel: Lee Jacobs, for Plaintiff. William Kebler and Brendan McKay, Banker Lopez Gassler, PA, St. Petersburg, for Defendant.

AMENDED¹ ORDER ON DEFENDANT’S MOTION FORSUMMARY JUDGMENT AS TO COUNT I AND PLAINTIFF’SORE TENUS MOTION FOR LEAVE TO AMEND

THIS CAUSE is before the Court on October 30, 2015, upon Defendant’s Motion for Partial Summary Judgment as to Count I of Plaintiff’s Amended Complaint. The following assignee’s are at issue:

Name of Assignee	Date of Service	Amount Demanded	Case Number	Date Invoice Submitted	Date Suit Filed	State Farm Check Date*	Amount Paid
James McLaurin	11/29/12	$694.87	2013-SC-161-O	11/29/12	1/7/13	1/28/13	$392.45
Carol Forman	1/2/13	$894.91	2013-SC-2280-O	1/2/13	3/6/13	3/8/13	$573.56
Martha Tyson	4/22/13	$545.24	2013-SC-4866-O	4/22/13	6/3/13	7/3/13	$320.79
Brooke Scott	10/9/12	$794.23	2012-SC-12027-O	10/30/12	12/14/12	1/7/13	$505.80
Helen Perry	6/21/12	$878.38	2012-SC-6871-O	6/22/12	8/10/12	9/4/12	$537.49

The insurance contract provisions related to auto glass coverage in relevant part are set forth below:

The Insured’s Duties in relevant part include the following:

Defendant seeks summary judgment in these cases contending Plaintiff cannot state a cause of action for failure to pay within a reasonable time because no such standard exists in the insurance contracts at issue. In response, Plaintiff argues that this Court’s prior denial of a motion to dismiss the amended complaint should result in denial of the summary judgment motion and that Count I states a cause of action.

Plaintiff’s reliance on the prior denial of the motion to dismiss is misplaced. A motion to dismiss is limited to the four corners of the complaint. By raising the issue in a summary judgment motion, the Court may consider matters beyond the complaint, most notably, the insurance contract.

There is no genuine issue of material fact that the insurance contract does not contain any specified time in which payment is required to be made. No evidence has been presented to the Court that the payments set forth above were not made in accordance with the insurance contract, violated Florida law or were unreasonable.

The affidavit of Mark Lusnia in opposition to summary judgment is not sufficient to raise a genuine issue of material fact as to the reasonableness of the payment. Mr. Lusnia’s affidavit asserts that he is required to pay for auto glass within thirty days or be charged interest. He also states that he is required to pay for the labor before payment from the insurer. He further opines that one month from receipt of his invoice is sufficient time for the insurer to pay and anything beyond that is unreasonable.

No doubt the demands on a small business are great. While the Court sympathizes with the required outflow of funds before receipt of money from the insurance company, it does not alter the terms of the contract between the assignee and State Farm. If Mr. Lusnia wants to protect his company from delays in payment perhaps he could obtain prior approval from State Farm before undertaking repairs. He may be able to negotiate a contract with State Farm or other insurers that payment for all work will be made within thirty days. Alternatively, had Plaintiff believed State Farm was not handling the claim appropriately, it could have filed a civil remedy notice pursuant to §624.155, Fla. Stat. Doing so would have placed State Farm on notice that it had 60 days to resolve the claim. Mr. Lusnia just simply cannot impose a deadline on State Farm that it has not agreed to or that is not otherwise required by Florida law.

At the hearing, Plaintiff requested the opportunity to amend the complaint if the Court found it did not state a cause of action. The Court denies the request to amend Count I as there are no set of facts in these cases that would give rise to a count for failure to pay within a reasonable period of time. If Plaintiff seeks to amend the complaint to raise other theories it may do so in accordance with Fla. R. Civ. P. 1.190.²

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¹ This amended order corrects the spelling of Plaintiff’s name. The November 24, 2015, order is vacated and this amended order issued in its place.

² Parties invoked the rules of civil procedure in these small claims cases.