24 Fla. L. Weekly Supp. 884a
Online Reference: FLWSUPP 2410ADAMInsurance — Automobile — Windshield repair — Coverage — Where term “prevailing competitive price,” which policy defines as price insurer can secure from competent and conveniently located repair facility, can be interpreted both as allowing insurer to limit reimbursement to amount it has previously authorized to pay for same type of repair and as price quoted by plaintiff repair shop so long as insurer is able to obtain same price and plaintiff’s shop is competent and conveniently located, term is ambiguous and must be interpreted in manner most favorable to plaintiff — Insurer failed to produce admissible evidence that it can secure price it reimbursed for repair where affidavit submitted as evidence had attachments that were hearsay and not properly authenticated
MY CLEAR VIEW WINDSHIELD REPAIR, INC. (a/a/o Luis Adams), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-016636 COCE 50. November 8, 2016. Peter B. Skolnik, Judge. Counsel: Emilio R. Stillo, Mac S. Phillips, Joseph R. Dawson, Lawrence M. Kopelman, and Sisy Mukerjee, for Plaintiff. Vanessa Septien and Frank Zacherl, for Defendant.
AMENDED ORDER ON COMPETING MOTIONSFOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on July 20, 2016, on the Motion for Final Summary Judgment filed by the Plaintiff as to its Petition for Declaratory Judgment and Breach of Contract, and by Defendant on its Motion for Final Summary Judgment, and the Court having been duly advised in the Premises, finds as follows:
Introduction
By virtue of the competing motions, the parties have stipulated that there exists no disputed issue of material fact and that only issues which are disputed is the application of law to those facts. The Plaintiff is a vendor who provides automobile windshield repairs. The Defendant is an automobile insurer which provided coverage on behalf of its insured, who had received the benefit of a windshield repair and assigned its rights under the policy of insurance to the Plaintiff who has standing to bring this lawsuit.
The Plaintiff submitted its billing to Defendant who reimbursed at a lesser amount based upon its interpretation of its policy which it claimed permits it to cap reimbursement at that level based upon the portion of the policy contained in the “Limit of Liability” section. That provision states as follows:
LIMIT OF LIABILITY
The limit of our liability for loss:
1. Is the actual cash value of the property at the time of loss;
2. Will not exceed the prevailing competitive price to repair or replace the property at the time of loss, or any of its parts, including parts from non-original equipment manufacturers, with other of like kind and quality and will not include compensation for any diminution of value that is claimed to result from the loss. Although you have the right to choose any repair facility or location, the limit of liability for repair or replacement of such property is the prevailing competitive price which is the price we can secure from a competent and conveniently located repair facility. At your request, we will identify a repair facility that will perform the repairs or replacements at the prevailing competitive price.
(emphasis supplied)
The Plaintiff contends that this limitation is ambiguous as to the application of the term “prevailing competitive price,” which the passage defines as “the price we can secure from a competent and conveniently located” repair facility. Further, the Plaintiff contends that the price it charged, as a competent and conveniently located repair facility, was a price that could be secured triggering the obligation of Defendant to reimburse the Plaintiff its full amount.
The Plaintiff relied upon the affidavit of Douglas Stroh, which established that the repairs were performed, the amount of the repairs, the charges were properly submitted to Defendant, and the amount unpaid. Plaintiff also submitted the deposition testimony of Defendant’s corporate representative, Lee Foskey (“Foskey”). In that deposition, Foskey did not provide any clarity as to the intended meaning of the definition of the term “prevailing competitive price.” By way of this lawsuit, the Plaintiff is seeking damages for breach of contract, and declaratory relief as to the ambiguity of the policy language governing the Defendant’s limit of liability.
The Defendant contends that it could secure a price from a competent and conveniently located facility which was less than the sum charged by Plaintiff and therefore that was the price that Defendant was entitled to pay for the repair services. Defendant, therefore, takes the position that it is entitled to a judgment in its favor.
Issues of Law
1. Whether the term prevailing competitive price as set forth in the limit of liability section of the policy is capable of being applied in more than one reasonable manner so as to render it ambiguous in its application.; and
2. Whether the Court determining an ambiguity in the application of the term prevailing competitive price requires a determination of its application in favor of the Plaintiff’s interpretation that they must be reimbursed the full amount of their charge.
Legal Analysis
In Florida, the interpretation and construction of an insurance contract is a question of law to be decided by the Court using generally accepted rules of contract construction. National Union Fire Ins. Co. of Pittsburgh, P.A. v. Underwriters at Lloyd’s, London, 971 So. 2d 885, 888 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2827b]; U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007) [32 Fla. L. Weekly S811a]. “When an insurer fails to define a term in a policy, the insurer cannot take the position that there should be a narrower, restrictive interpretation of the coverage provided.” Bethel v. Security National Insurance Company, 949 So. 2d 219, 222 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D23a] citing State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1076 (Fla. 1998) [23 Fla. L. Weekly S527a]. “Where the language in an insurance policy is subject to differing interpretations, the policy language ‘should be construed liberally in favor of the insured and strictly against the ‘ ” Id., at 223, citing Flores v. Allstate Insurance Co., 819 So. 2d 740, 744 (Fla. 2002) [27 Fla. L. Weekly S499a].
The Court finds that the “prevailing competitive price” which the policy defines as “the price we can secure from a competent and conveniently located repair facility” is capable of being applied in more than one reasonable manner and, as such, should be construed in the manner most favorable to the Plaintiff.
The Defendant submits that the term allows it to limit reimbursements in amounts it has previously been authorized to pay for the same type of repair. It maintains that so long as the facility was competent and conveniently located that the price it had been previously authorized to pay constitutes the price it can secure. If reimbursement in this manner is what the Defendant intended, it could have clearly stated that when it drafted its insurance contract.
The Plaintiff argues that so long as the Defendant is capable of obtaining or securing the same price that Plaintiff quoted to the insured and the Plaintiff’s repair facility is competent and conveniently located repair facility the term “prevailing competitive price” which is a price we can secure from a competent and conveniently located repair facility must be applied to support reimbursement in the full amount of Plaintiff’s charge. Since both interpretations are reasonable, existing law requires the Court to accept the interpretation most favorable to the insured. While the words may be clear, when the phrase is applied to a determination of the amount to which a repair facility is entitled to be paid, it becomes ambiguous as a consequence of two competing interpretations.
The Defendant has submitted the affidavit of Foskey which they contend creates a factual issue which supports their motion for summary judgment and precludes Plaintiff from being entitled to its summary judgment. The affidavit had documents attached to which the Plaintiff objected as hearsay in that they were not properly authenticated and thus not proper summary judgment evidence pursuant to Fla. R. Civ. P. 1.510(e). This objection was well-founded and the affidavit was not considered by the Court. See, Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d DCA 1992) (since affiant is not a custodian of the records proffered, he is unable to authenticate the documents referred to in his affidavit; therefore, affiant is not competent to testify to the matters contained in his affidavit); See, also, Topping v. Hotel George, 268 So.2d 388 (Fla. 2d DCA 1972) (attorney’s affidavit that he was familiar with his client’s records and that the records reflected certain information constituted hearsay and could not support summary judgment); Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla. 1st DCA 1998) [23 Fla. L. Weekly D642a] (court may not consider unauthenticated document in ruling on motion for summary judgment, even when it appears that such document, if properly authenticated, may have been dispositive). As a consequence, the Defendant failed to come forward with any admissible evidence that Defendant purportedly “can” secure the price it reimbursed. The Court also finds that the Foskey affidavit is legally insufficient under Fla. Stat. §90.803(6) in that Mr. Foskey previously identified under oath two specific claims as evidence of prices GEICO “can” secure when in fact those claims were filed lawsuits pending in Broward County at the time the affidavits were executed and in which the facility was clearly not in fact accepting the “prevailing competitive price.”
Lastly, even if the Court were to consider Mr. Foskey’s Affidavit, it simply does not raise a single disputed fact regarding the sufficiency of Plaintiff’s prima facie case; the Plaintiff’s evidence that it was and is competent, conveniently located to the insured, and it has submitted a price that Defendant could have secured is unrebutted.
Although not binding, this Court is also persuaded by the other county court decisions specifically holding that Defendant’s Limit of Liability clause is ambiguous. See, e.g., Superior Auto Glass of Tampa Bay, Inc. (a/a/o David Gilbo) v. GEICO General Insurance Company, 16-CC-007306 (unpublished decision of the Honorable Herbert Berkowitz, Hillsborough County Court, 2016) (in defining “prevailing competitive price” as “the price we can secure. . .” with no further mention of any objective standards against which to measure such prevailing competitive pricing, the insured and/or its assignee is left in a quandary as to reimbursement. Such is the quintessential meaning of ‘ambiguous’ when applied to an insurance policy’s limitation of liability clause)1; see also Certified Windshield LLC (a/a/o French Lanham) v. GEICO Indem. Ins. Co., 13-CC-030575 (unpublished decision of the Honorable Joelle Ann Ober, Hillsborough County Court, 2016); Auto Glass America, LLC (a/a/o Shirley Forest) v. GEICO General Ins. Co. 15-CC-39599 (unpublished decision of the Honorable Frances M. Perrone, Hillsborough County Court, 2016); Auto Glass America LLC (a/a/o German Herrera) v. GEICO General Ins. Co. 15-CC-039600 (unpublished decision of the Honorable Frances M. Perrone, Hillsborough County, 2016); Certified Windshield LLC (a/a/o George Hart) v. GEICO General Ins. Co. 15-CC-031547 (unpublished decision of the Honorable Joelle Ann Ober, Hillsborough County, 2016); Superior Auto Glass of Tampa Bay Inc. (a/a/o Matthew Dick) v. Government Employees Ins. Co. 15-CC-009347 (unpublished decision of the Honorable Joelle Ann Ober, Hillsborough County); Certified Windshield LLC (a/a/o Gabor Wendler) v. GEICO General Ins. Co., 15-CC-031840 (unpublished decision of the Honorable Joelle Ann Ober, Hillsborough County, 2016).
The Plaintiff has articulated doubt as to its rights under the policy as a result of the inherent ambiguity in the application of the policy terms, and has shown there is a bona fide, actual, present and practical need for the declaration set forth below because the Plaintiff’s interest is adverse to the Defendant’s, and the requested declaration presents ascertainable facts that make the policy ripe for declaratory relief.
Therefore, the Court hereby declares that the term “prevailing competitive price” which is defined as “the price we can secure from a competent and conveniently located repair facility” as applied to be ambiguous and is to be construed in favor of the Plaintiff.
Conclusion
Plaintiff is entitled to a Final Judgment as the Plaintiff has established that 1) the price charged by the Plaintiff is the price that can be secured by the Defendant from the Plaintiff as a competent and conveniently located repair facility; 2) the Plaintiff has submitted a price that Defendant could have secured; and 3) the ambiguity in the limitation as applied must be interpreted as a matter of law in favor of greater coverage which means the Plaintiff is entitled to be reimbursed in full amount of the claim. As such, it is hereupon,
ORDERED that Plaintiff’s Motion for Final Summary Judgment is GRANTED and Defendant’s Motion for Final Summary Judgment is DENIED, and a Final Judgment consistent with this ruling shall be entered.
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1The Court was advised of the ruling by Judge Berkowitz at the hearing. Plaintiff filed same after the hearing which the Court reviewed and further supports this Court’s holding.
