25 Fla. L. Weekly Supp. 897b
Online Reference: FLWSUPP 2510WEGLInsurance — Automobile — Windshield repair or replacement — Final judgment entered in favor of insurer in assignee’s action to recover difference between amount tendered by insurer in payment of claim, which was less than amount reflected in assignee’s invoice, and amount assignee contended it was due under terms of policy where assignee failed to present evidence proving the amount due under the policy at issue
FRY ENTERPRISES, INC. D/B/A CORNERSTONE MOBILE GLASS, a/a/o Crystal Wegley Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Small Claims Division. Case No. 2015SC-3440. August 7, 2017. Robert G. Fegers, Judge. Counsel: Michael D. Cerasa, Altamonte Springs, for Plaintiff. Brendan J. McKay, St. Petersburg, for Defendant.
FINAL JUDGMENT FOR DEFENDANTIN JURY ACTION FOR DAMAGES
THIS MATTER came before this Court for jury trial on July 24, 2017. With the jury having been selected and sworn, Plaintiff presented its case and rested. Defendant moved for a directed verdict based, in part, on Plaintiff’s failure to provide any evidence of the amount due under the contract [State Farm Insurance Policy]. It is on that basis this Court granted Defendant’s ore tenus motion for directed verdict. In this case, Plaintiff replaced a damaged windshield on a vehicle insured by Defendant. After performing the work, Plaintiff, assignee of the insured, tendered a $614.01 invoice for payment. Approximately two weeks later, Defendant tendered payment in the amount of $354.96, which Plaintiff received and accepted. In this jury trial, Plaintiff seeks to recover the difference of $259.05. The parties agreed at the hearing on reciprocal motions for summary judgment that, assuming a breach occurred, damages, if any, are to be determined based on what Plaintiff would have been otherwise entitled to receive under the terms of the insurance policy. The determination of the amount due under the State Farm Insurance Contract is controlled by the “Limits and Loss Settlement — Comprehensive Coverage and Collision Coverage” provision paragraph 1a(1) at page 32 of the policy. The jury instructions agreed to between the parties provide, in part:
504.2 Breach of Contract Damages
a. Compensatory Damages: Compensatory damages is that amount of money which will put Fry Enterprise in as good a position as it would have been if State Farm had not breached the contract and which naturally result from the breach.
504.6 Obligation to Pay Money Only
To recover damages for the breach of a contract to pay money, Fry Enterprises must prove the amount due under the contract.
Jury instruction 504.2 cites Capitol Environmental Svcs., Inc. v. Earth Tech, Inc., 25 So. 3d 593 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2467b] and Sharick v. Southeastern University of the Health Sciences, Inc., 780 So. 2d 136 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1834b] as support.
In this case, Fry Enterprises failed to present evidence to “prove the amount due under the [State Farm Insurance] contract.”
As such, on motion of Defendant, this Court granted a directed verdict for Defendant.
Pursuant to the verdict rendered in this action, it is adjudged Plaintiff, Fry Enterprises, Inc. d/b/a Cornerstone Mobile Glass a/a/o Crystal Wegley, take nothing by this action and Defendant, State Farm Mutual Automobile Insurance Company, shall go hence without day and recover costs from Plaintiff in an amount to be determined upon the filing of a proper motion and a hearing.
