24 Fla. L. Weekly Supp. 473b

Online Reference: FLWSUPP 2407GEICInsurance — Automobile — Windshield replacement or repair — Prevailing competitive price — Language of policy limiting insurer’s liability for cost of windshield repair to prevailing competitive price is not ambiguous and supports insurer’s assertion that term means an amount that would be accepted by at least one competent glass facility conveniently located to the insured at the time of the repairs — However, genuine issues of material fact exist as to whether costs quoted by insurer to determine prevailing competitive price were from “competent glass repair facilities” as required by policy language — Affidavit in support of insurer’s motion for summary judgment was faulty in that it attempted to establish the existence of competent glass repair facilities, but not on the date that the repairs were done

GEICO INDEMNITY CO., Appellant, v. SUPERIOR AUTO GLASS OF TAMPA BAY, INC., a/a/o Suzanne Renczkowski, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Hernando County. Case No. 2015-AP-0006. Lower Case No. 2010-SC-10804. August 19, 2016. Appeal from the County Court for Hernando County. Donald McCathran, Judge. Counsel: Frank Zacherl and Stephen T. Maher, Shutts & Bowen LLP, Miami, for Appellant. Michael Grossman, Cohen Grossman, Maitland, and Susan W. Fox and Gary R. Proctor, Fox & Loquasto, P.A., Orlando, for Appellee.

[Lower court order published at 23 Fla. L. Weekly Supp. 151b.]OPINION

(SEMENTO, J.) Suzanne Renczkowski, an insured under a policy with the Appellant, Geico Indemnity Co. (“Geico”), submitted a claim for the repair of her windshield. She assigned her insurance benefits to the Appellee, Superior Auto Glass of Tampa Bay, Inc. (“Superior”). The policy provides for repair of the damage at the “prevailing competitive price.” Superior submitted a bill for $439.69, and Geico paid $308.89, claiming that this was the prevailing competitive price. In response, Superior filed suit. Both parties filed motions for summary judgment. Geico asserted that the term “prevailing competitive price” means an amount that would be accepted by at least one competent glass facility conveniently located to the insured at the time of the repairs. Superior argued that the term “prevailing competitive price” means an amount that would be accepted by the facility that actually performed the repairs. The trial court found that the contract was ambiguous and that it should therefore be construed against Geico, denied Geico’s motion for summary judgment, and granted Superior’s motion for summary judgment. Geico filed this appeal.

The appeal of a final summary judgment is reviewed de novo. Chiropractic One, Inc. v. State Farm Mut. Ins., 92 So. 3d 871 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1565a]. Likewise, the trial court’s interpretation of a contract is reviewed de novo on appeal. State Farm Fla. Ins. Co. v. Phillips, 134 So. 3d 505 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D361b].

The contract language at issue occurs in a section of the policy titled “Limit of Liability” and states that:

The limit of out liability for loss. . . (6) for glass repair or replacement, is not to exceed the prevailing completive price. This is the price we can secure from a competent glass repair facility conveniently located to you at the time you make your claim. Although you have the right to choose any glass repair facility or location, the limit of liability for loss to window glass is the cost to: (a) repair; or (b) replace such glass, but will not exceed prevailing competitive price. If such glass is replaced, then the cost will be paid at the prevailing competitive price for replacement. At your request we will identify a glass repair facility that will perform the repairs at the competitive prevailing price.

In essence, Geico is arguing that the phrase “the price we can secure from a competent glass repair facility” should be read to mean any price that can be secured from any competent glass repair facility, while Superior is arguing that it should be read to mean the price that can be secured from the specific glass repair facility chosen by the insured.

Courts must construe “insurance contracts . . . in accordance with the plain language of the policy.” Swire Pacific Holdings v. Zurich Ins. Co., 845 So. 2d 161 (Fla. 2003) [28 Fla. L. Weekly S307d]. A policy provision is not rendered ambiguous by its complexity or the requirement of analysis for application. Id. “Strict construction does not mean that a court must always find coverage. Strict construction does not mean . . . that clear words may be tortured into uncertainty so that new meanings can be added. Where the insurer has defined a term used in the policy in clear, simple, non-technical language, . . .strict construction does not mean that judges are empowered to give the defined term a different meaning deemed more socially responsible or desirable to the insured.” State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc., 678 So. 2d 397 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1640a].

The identical issue has been litigated in the Sixth Circuit. In Superior Auto Glass a/a/o/ Shaffer v. Geico, 2014-AP-007-WS (Fla. 6th Cir. 2014), the trial court granted Geico summary judgment, finding that there was no ambiguity and that the term “prevailing competitive price” acted to limit Geico’s liability to the lowest price it could secure among competitors. The trial court was affirmed on appeal. Although that decision is not binding, the opinion is persuasive.

We agree that the contract provision is not ambiguous and that the language of the policy supports Geico’s interpretation. Therefore, the trial court erred in its interpretation of the contract, and the summary judgment in favor of Superior must be reversed.

Geico also argues that the trial court erred in failing to grant its motion for summary judgment. We disagree.

Summary judgment cannot be granted if there are genuine issues of material fact. Hulley v. Cape Kennedy Leasing Corporation, 376 So. 2d 884, 885 (Fla. 5th DCA 1979). Here, the record indicates that there are genuine issues of material fact in dispute, particularly whether the costs quoted by Geico to determine the prevailing competitive price are from “competent glass repair facilities” as required by the language of the policy. We note that the affidavit that Geico relies upon in support of its motion for summary judgment is faulty. It attempts to establish the existence of “competent glass repair facilities” but does not do so on the date that the repairs were done.¹ The existence of genuine issues of material fact precludes summary judgment for Geico.

Superior filed a Motion to Strike Reply Brief, and Geico filed a Response. The Motion to Strike Reply Brief is denied.

REVERSED AND REMANDED. (FALVEY and HODGES, JJ., concur.)

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¹The repairs were made in September, 2010. The affidavit is dated November 4, but contains no year. It was filed in December, 2014.