25 Fla. L. Weekly Supp. 908a
Online Reference: FLWSUPP 2510EORTInsurance — Automobile — Windshield repair or replacement — Prevailing competitive price — Although policy did not define “prevailing competitive price,” limit of liability language in policy provided that the prevailing competitive price was the price insurer could secure from a competent and conveniently located repair facility — Partial summary judgment in favor of plaintiff is appropriate where both parties agreed that plaintiff’s repair facility was both competent and conveniently located to the insured at the time of loss
AUTO GLASS AMERICA, LLC a/a/o EDGARDO ORTIZ, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-009258 CONO (72). November 28, 2017. John Hurley, Judge. Counsel: Emilio R. Stillo and Andrew Davis-Henrichs, Emilio Stillo P.A., and Mac S. Phillips, Phillip Tadros, P.A., Davie, for Plaintiff. Leonard E. Clark, Law Office of Ellen H. Ehrenpreis, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENTRE: COMPETENT AND CONVENIENTLY LOCATED
THIS CAUSE came before the Court on October 4, 2017 for hearing on Plaintiff’s Motion for Partial Summary Judgment Re: Competent and Conveniently Located, and the Court, having reviewed the motion and the entire court file; having reviewed Defendant’s Response to Plaintiff’s Motion to Partial Summary Judgment; having reviewed the relevant legal authorities; having heard argument of counsel; and having been sufficiently advised in the premises,
ORDERS AND ADJUDGES that Plaintiff’s Motion for Partial Summary Judgment as to Competent and Conveniently Located is hereby GRANTED for the reasons explained below.
Undisputed Material Facts
1. Edgardo Ortiz (the “Insured”) sustained windshield damage and hired Plaintiff Auto Glass America, LLC (“AGA”) to replace it.
2. The windshield replacement was covered under the Insured’s policy with Geico General Insurance Company (“Geico”).
3. The Insured assigned the benefits under her Geico policy to AGA, which included the right to collect full payment through litigation, if necessary.
4. On February 5, 2015, AGA replaced the Insured’s windshield, and charged $669.88.
5. Geico paid the total amount of $324.44.
6. AGA filed this lawsuit and seeks damages in the principal amount of $345.44 (the difference between the amount charged and the amount Geico paid).
7. Geico claims that it paid the proper amount pursuant to the Limit of Liability clause in the property damage portion of the policy. Specifically, Geico contends that the extent of its liability “will not exceed the prevailing competitive price to repair or replace the property at the time of loss.” Although “prevailing competitive price” is not defined in the policy, the limit of liability language provides that the “prevailing competitive price” is the “price [Geico] can secure from a competent and conveniently located repair facility” (emphasis added).
8. Both parties agree that AGA was both “competent” and “conveniently located to the insured.”
a. Geico’s Glass Department Manager, Steve Blome, executed an affidavit stating that, “the price [Geico] paid does not exceed the price Geico can secure from competent and conveniently located repair facilities to the insured/assignor. These repair facilities include Auto Glass America . . .” (emphasis added). The affidavit is attached as Exhibit B to AGA’s motion.
b. Geico representative Ronnie Lee Foskey, Jr., testified that “competent” — to Geico — means “not faulty” and a “repair facility who’s in business.” A copy of the transcript of Mr. Foskey’s deposition is attached as Exhibit C to AGA’s motion, and the quoted language appears at page 79, lines 16-19 and 80, lines 10-14.
c. For “conveniently located,” Mr. Foskey testified that that “the customer chose the shop, so there would be no way to dispute they were not conveniently located.” Foskey Dep., p. 82, lines 14-15.
Conclusions of Law
9. Summary judgment is proper “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510.
10. A party may not alter its previous sworn statements and litigation position solely for the purpose of avoiding summary judgment. Ellision v. Anderson, 74 So.2d 680 (Fla. 1954); Willage v. Law Offices of Wallace and Breslow, P.A., 415 So.2d 767 (Fla. 3rd DCA 1982); Berger v. Lewison, 521 So.2d 311 (Fla. 3rd DCA 1988); Hallandale Beach Orthopedics, Inc. (a/a/o Patricia Hernandez) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 691a (Fla. Miami-Dade County, Cnty. Ct. 2014)(Caryn Schwartz, J.).
11. Based on Geico’s admissions and stipulations described in Paragraph 8 above, there is no genuine issue of material fact regarding whether AGA was competent or conveniently located to the Insured at the time of loss.
12. Plaintiff AGA’s Motion for Partial Summary Judgment Re: Competent and Conveniently Located is GRANTED.
