24 Fla. L. Weekly Supp. 761a
Online Reference: FLWSUPP 2409SBUSInsurance — Automobile — Windshield repair or replacement — Small claims action against insurer by repair shop’s assignee seeking to collect balance claimed to be due from insurer — Plaintiff’s motion for final summary disposition granted — Limitation of liability provision of insurance policy was affirmative defense which was waived when insurer did not raise defense by deadline set by court — Insurer’s argument that it did not file affirmative defenses because, if it did so, it would be waiving right to appraisal is rejected
BROWARD INSURANCE RECOVERY CENTER, LLC (a/a/o Shane Bushman), Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-7399 COCE 53. November 3, 2016. Robert W. Lee, Judge. Counsel: Emilio Stillo and Joseph Dawson, Fort Lauderdale, for Plaintiff. Cristina Cabrera, Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY DISPOSITION
THIS CAUSE came before the Court on September 16, 2016 for hearing on the Court’s Order to Show Cause Why This Case Should Not Be Transferred Out of Broward County, and the Court’s having reviewed the parties’ filings, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
This case is one of a group of 57 cases involving the same parties and some of the same issues, but involving 57 separate incidents of property damage occurring in counties other than Broward throughout the State of Florida. In each case, a vehicle owner suffered windshield damage and sought repair. The owner assigned the repair facility his or her right to collect the costs of repair directly from the insurer, which in each of these 57 cases was Progressive. In turn, the repair facility billed Progressive, but did not receive the full amount it believed was due. Thereafter, in each case, the repair facility purportedly assigned to the Plaintiff the right to seek the balance claimed due from Progressive. The Plaintiff, however, had nothing to do with the actual repair of the damage, and is merely a company created to acquire these types of causes of action.
All of the cases were filed under the Small Claims Rules because they each involve less than $100.00 is dispute. They were all set for June 7, 2016 for pretrial conference under Rule 7.090(b). None of the cases had any apparent tie to Broward County, other than the fact that the Plaintiff’s business was based in Broward County. Therefore, on May 26, 2016, the Court issued its Order to Show Cause Why Case Should Not Be Transferred Out of Broward County, noting that “the Complaints raise a substantial question that Broward County has no relevant connection to these cases, and that in the interests of justice, the Broward judiciary and a Broward ‘jury, which is both a scarce and precious resource, should not be burdened with determining a case that has no connection’ to Broward County.” See Hall v. R.J. Reynolds Tobacco Company, 118 So.3d 847, 848 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1370a] and cases cited therein; Stamen v. Arrillaga, 169 So.3d 1209, 1210 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1638a] (“a trial court may sua sponte raise the question” of inconvenient forum “in the interest of justice”), quoting McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 511 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1491c]. See also Clear Visions Windshield Repair LLC v. GEICO, 24 Fla. L. Weekly Supp. 194a (Lee Cty. Ct. 2016).
The cases proceeded to the Show Cause Hearing on June 17, 2016. At the hearing, Plaintiff’s counsel argued that the sole issues in the cases were questions of law, and therefore discovery would be limited and juries would not be burdened with these cases. Defense counsel disagreed. Therefore, the Court reset the matters, under a new Show Cause Order, for September 16, 2016. Under the second Show Cause Order, the Court required the Defendant to file any defenses in writing with specificity within ten (10) days of the date of the Order, as permitted by Rule 7.090(c). The Court advised the Defendant that if it failed to do so, the Court would conclude that the Defendant had “no affirmative defenses to the claim and that the sole issue(s) in the case are those of law.”
Additionally, the Court required the Plaintiff to file its Motion for Summary Disposition under Rule 7.135 within 45 days of the date of the second Show Cause Order, “failing which the Court shall conclude that the Plaintiff has conceded that the sole issue in any case is not an issue of law.” The Court advised that any Motion for Summary Disposition filed would be heard at the second Show Cause hearing.
Finally, in the second Show Cause Order, the Court advised the parties that the Court reserved on the issue of transferring these cases out of Broward County based on forum non conveniens in the interests of justice if the evidence and record demonstrated at the September 16 hearing that the true sole issue in these cases is not an issue of law.
Subsequent to the second Show Cause Order, but before the date of the second Show Cause hearing, nine (9) of the 57 cases either settled or were otherwise voluntarily dismissed. Of the remaining 48 cases, ten (10) were assigned by Progressive to outside counsel, with the other 38 cases being retained by in-house counsel. For the remaining 48 cases, the Plaintiff timely filed separate Motions for Summary Disposition. These cases therefore came before the Court on September 16, 2016, with both parties being represented by counsel.
At the hearing, it was demonstrated that in the ten (10) cases being handled by outside Progressive counsel, defense counsel had timely filed affirmative defenses. Additionally, outside Progressive counsel did not concede the absence of factual issues, and a review of the dockets in these cases, as well as the affirmative defenses, suggests the same.
In the remaining 38 cases, in-house counsel did not file any affirmative defenses, but instead filed a Motion to Invoke Appraisal in each case. Defense counsel argued that it did not file defenses because, if it did so, it would be waiving its right to appraisal. The problem with Defendant’s argument is that it was the Court who ordered Defendant to file defenses if it had any, so it could hardly correctly argue that it was “intentionally and knowingly relinquishing” its right to appraisal, the standard for determining whether a waiver has occurred. Citizens Property Ins. Co. v. Michigan Condominium Ass’n, 46 So.3d 177, 177 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2369a]. Therefore, the Court concludes for purposes of the 38 cases being handled in-house that Progressive has no defenses to the claim.
Because limitations on the amount to be paid are set forth in the “limits of liability” section of the policy, Progressive cannot rely on these limitations because exclusions or limitations arising under an insurance policy are defenses that the insurer must raise. Generally, provisions in a contract which limit liability are affirmative defenses that must be raised or are waived. See Braid Sales & Marketing, Inc. v. R & L Carriers, Inc., 838 So.2d 590, 591 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D296a]. The same rule applies equally to those limits on liability provisions provided for in an insurance policy. See State Farm Mutual Automobile Ins. Co. v. Curran, 135 So.3d 1071, 1079 (Fla. 2014) [39 Fla. L. Weekly S122a]; Jones v. Florida Ins. Guaranty Ass’n, Inc., 908 So.2d 435, 452 (Fla. 2005) [30 Fla. L. Weekly S581a]; St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483, 487 (Fla. 5th DCA 2002) [28 Fla. L. Weekly D131b].
Progressive urges that it nevertheless has the right to seek appraisal of the relatively small amount due in each case — that is, 38 separate appraisal proceedings. The problem for Progressive is that under an appraisal process, it is the appraiser’s role to determine the amount as set forth in the insurance policy, including any exclusions or limitations under the policy. See State Farm Lloyds v. Johnson, 290 S.W.2d 886, 892-93 (Tex. 2009). By losing its right to use the defense limiting liability set forth in the policy, the right to appraisal in turn has no independent effect because the appraiser has no basis on which to determine the amount due.
Moreover, the Court has doubts that the right to appraisal has been triggered in this case even if the defense limiting liability had been properly raised. Because the plaintiff is seeking relief that goes beyond a determination of the actual value of loss, this case likely fails to fall within the scope of the policy’s appraisal clause. See Travis v. American Mfrs. Mut. Ins. Co., 335 Ill. App. 3d 1171, 1176, 782 N.E.2d 322, 326 (2002) (case raised issues beyond mere actual value of loss). In the instant case, the operative issue is how the value of the loss should be determined, and making this determination is not within the purview of the appraisal process. See also Restoration 1 of South Florida, LLC v. Geovera Specialty, 22 Fla. L. Weekly Supp. 373c (Miami-Dade Cty. Ct. 2014) (noting that not all disputes involving charges fall with the scope of an appraisal process).
Finally, the Court notes that the small amount is dispute here compared to the costs of an appraisal render the process illusory for all intents and purposes. To hold otherwise would in the Court’s view, effectively close all meaningful means of redress to those who suffer windshield damage under a Progressive policy. See Johnson, 290 S.W.3d at 895 (on occasion, the price of the appraisal process can be “so expensive [. . . ] that it is worth considering beforehand whether appraisal is truly necessary”).
Accordingly, it is hereby ORDERED and ADJUDGED that the Court finds under Rule 7.135 there to be no triable issue in this case, and the Plaintiff’s Motion for Final Summary Disposition is therefore GRANTED. The Plaintiff shall submit to the Court a proposed final judgment awarding the Plaintiff the amount sought in the complaint.
