25 Fla. L. Weekly Supp. 789a

Online Reference: FLWSUPP 2509JWILInsurance — Automobile — Windshield replacement or repair — Coverage — Plain language of policy, construed strictly against insurer and giving every provision its full meaning and operative effect, dictates that whether insurer elects to pay directly for loss or repair or replace damaged parts under loss settlement provision of policy, the limit of coverage is actual cash value of the damaged parts as determined by considering, among other things, fair market value — Because there was genuine issue of material fact regarding actual cash value of windshield replacements in the locality at issue, trial court erred in granting summary judgment in favor of insurer

AUTO GLASS AMERICA, LLC a/a/o Jennifer Wilson, Appellant, v. NATIONWIDE INSURANCE COMPANY OF AMERICA, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Hernando County. Case No. 16000008AP. L.T. Case No. 15001953SC. November 3, 2017. Appeal from the Hernando County Small Claims Court. Judge Donald McCathran, Jr. Counsel: Chad A. Barr, Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellant. DeeAnn J. McLemore, Banker Lopez Gassler P.A., St. Petersburg, for Appellee.

OPINION

(FALVEY, Judge.) Auto Glass America, LLC a/a/o Jennifer Wilson, the Plaintiff below, appeals an order granting summary judgment in favor of Nationwide Insurance Company of America. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). For the reasons that follow, we reverse and remand for the trial court to vacate the final order dated September 28, 2016, reverse the non-final order granting summary judgment in favor of Nationwide Insurance Company of America dated August 25, 2016, and conduct a trial on the merits.

Factual and Procedural Background

On October 2, 2015, Jennifer Wilson sustained damage to her automobile’s windshield. Ms. Wilson was insured under an automobile policy issued by Nationwide Insurance Company of America (“Nationwide”). Wilson selected Auto Glass America, LLC (“Auto Glass”) to replace the windshield and assigned her rights under the Nationwide policy to Auto Glass. When Nationwide paid only $347.57 on Auto Glass’s invoice of $663.13, Auto Glass filed a small claims action seeking the remaining balance due. During the litigation, the parties filed competing motions for summary judgment. On August 25, 2016, the trial court entered a non-final order denying Auto Glass’s motion for summary judgment and granting Nationwide’s motion for summary judgment. The court’s order reasoned as follows:

“The policy offers Defendant the option to pay either the actual cash value or follow the loss settlement provision which is what Defendant elected to do . . . . The insurance policy does not require Defendant to pay the fair market value for the windshield replacement in either the actual cash value section or the loss settlement section. The policy only requires Defendant to consider the fair market value when determining actual cash value.”

Based upon this reasoning, the court determined Nationwide’s tender of $345.57 was satisfactory and granted summary judgment in Nationwide’s favor. Thereafter, Auto Glass moved for reconsideration or rehearing, which the court denied and then entered final judgment. Auto Glass timely appealed.

Analysis

The issue in this appeal is whether the court erred by granting summary judgment in favor of Nationwide. The appellate standard of review on a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. 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].

Nationwide’s policy provides the following with respect to comprehensive coverage for damage to an insured’s vehicle:

We will pay for loss to your auto not caused by collision or upset . . . . No deductible will apply to the loss to the windshield of your auto.

For damage to your auto’s windshield, we may offer to have it repaired in lieu of replacement. However, if the repair is not satisfactory, we will replace the windshield.

Limits and Conditions of Payment

ACTUAL CASH VALUE

The limit of our coverage is the actual cash value of your auto or its damaged parts at the time of loss.

To determine actual cash value, we will consider:

1. fair market value;

2. age;

3. condition of the property; and

4. betterment;

at the time of loss.

LOSS SETTLEMENT

At our option, we may:

1. pay you directly for your loss;

2. repair or replace your auto or its damaged parts with the parts furnished either by original equipment manufacturers or non-original equipment manufacturers

APPRAISAL

Both the policyholder and we may request appraisal of the loss if either party fails to agree on the amount of the loss. Both parties must agree to appraisal.

The dispute in this case centers on whether the “Loss Settlement” provision of Nationwide’s policy works in tandem with or is independent from the “Actual Cash Value” provision when Nationwide elects to repair or replace a damaged windshield. Nationwide argues that when the repair or replace option is elected, case law dictates the only limit to its liability is the amount necessary to restore the car’s function. See Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 739 (Fla. 2002) [27 Fla. L. Weekly S492a] (stating that when the repair option was chosen, the insurer’s liability was limited to the monetary amount necessary to repair the car’s function and appearance); see also Arch Roberts & Co. v. Auto-Owners Ins. Co., 305 So. 2d 882, 884 (Fla. 1st DCA 1974) (“Upon making that election it was then obligated to restore it to substantially the same condition as to function, appearance and value as existed before the accident.”). Nationwide contends that several shops were ready, willing, and able to replace the windshield for the amount Nationwide was willing to pay; thus, Nationwide fulfilled its obligation under the policy language.

Auto Glass’s argues the policy provisions work in tandem such that when Nationwide elects to repair or replace, it should consider “fair market value” as part of determining the “actual cash value” as defined by the policy. Auto Glass asserts Nationwide simply paid the “lowest price possible” it could find unilaterally rather than determining and paying “actual cash value” of the loss. During the underlying court proceedings, Auto Glass provided affidavits to support a “fair market value” amount for the locality, whereas Nationwide used nationwide indicators, surveys and population data to set the reimbursement rate at an amount well below the national rate. Thus, Auto Glass argues that there is a genuine issue of material fact as to the “actual cash value” such that summary judgment in favor of Nationwide was inappropriate.

To resolve this issue, this Court must interpret the terms of the policy. “[I]nsurance contracts must be construed in accordance with the plain language of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]. “[A]n insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer.” Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828, 830 (Fla. 1997) [22 Fla. L. Weekly S513a]. “In construing an insurance policy, courts should read the policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So. 2d 26, 30 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b].

Here, Nationwide asks this Court to ignore the “Limits and Conditions of Payment” section when it elects to repair or replace the damaged part, but honor the section if it elects to pay directly for the loss. Such an interpretation does not give every provision its full meaning and operative effect, nor is it an interpretation that is most strictly construed against the insurer. Nationwide cites Siegle v. Progressive and Arch Roberts & Co. v. Auto-Owners for the proposition that when it elects to repair or replace, its only obligation is to restore full function. However, the cited cases are distinguished in that they address only an insurer’s obligation to repair, not how much the insurer is obligated pay for the repairs.

In this case, Nationwide has essentially treated the repair or replace language in the “Loss Settlement” provision as a limitation on the amount to be paid instead of what is intended, which is identifying one of two alternative methods by which to resolve the loss. It is the “Limits and Conditions of Payment” provision that limits Nationwide’s coverage. The plain language of that provision does not state that Nationwide’s limit of liability is the “lowest price possible,” but rather, states that coverage is limited to actual cash value as determined, in part, by fair market value. Moreover, at the trial court’s hearing, Auto Glass successfully raised a genuine issue of material fact as to the “actual cash value” price in the locality. Therefore, the trial court erred in granting summary judgment in favor of Nationwide.

Conclusion

The plain language of Nationwide’s policy, when construed strictly against the insurer and giving every provision its full meaning and operative effect, dictates that whether Nationwide elects to pay directly for the loss or repair or replace damaged parts under the “Loss Settlement” provision, the limit of its coverage is the actual cash value of the damaged parts as determined by considering, inter alia, fair market value. Here, there is a genuine issue of material fact regarding the actual cash value of windshield replacements in the locality. Therefore, summary judgment in favor of Nationwide, was inappropriate. Auto Glass is entitled to appellate attorney fees pursuant to section 627.428, Florida Statutes, contingent upon ultimately obtaining a judgment in its favor in the lower tribunal. Auto Glass is also entitled to their costs for the appeal pursuant to Florida Rule of Appellate Procedure 9.400(a).

REVERSED and REMANDED. (SEMENTO and HODGES, JJ., concur.)