25 Fla. L. Weekly Supp. 302a
Online Reference: FLWSUPP 2504JTHOInsurance — Automobile — Windshield replacement or repair — County court did not depart from clearly established principles of law by denying insurer’s motion to dismiss or in the alternative to stay case and compel appraisal on ground that appraisal clause, which imposed certain expenses upon insured, was unenforceable because it had the effect of charging a deductible, in violation of statute prohibiting insurance companies from imposing deductible to claims for windshield damage — Petition for writ of certiorari denied
PROGRESSIVE SELECT INSURANCE COMPANY, Appellant, v. LLOYD’S OF SHELTON AUTO GLASS, a/a/o JEDIDIAH THOMAS, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 17-CA-5640. Division A. L.T. Case No.: 16-CC-41610. July 28, 2017.
QUASHED. 43 Fla. L. Weekly D2430a (Progressive Select Ins. v. Llloyd’s of Shelton Auto Glass, LLC, 2D17-3657, 10/31/18)
[Lower court order published at 25 Fla. L. Weekly Supp. 379a]ORDER DENYING PETITION FOR WRIT OF CERTIORARI
(THOMAS, Judge.) Petitioner Progressive Select Insurance Company seeks certiorari review of the County Court’s May 20, 2016, interlocutory order denying Progressive’s motion to dismiss or in the alternative to stay the case and compel appraisal. Finding the petition does not set forth a preliminary basis for relief, the Court will deny the petition without need for a response.
A nonfinal order for which no right to interlocutory appeal is provided is reviewable by Petition for Writ of Certiorari under limited circumstances. The order must depart from the essential requirements of law and cause material injury to the petitioner throughout the remainder of the proceedings, leaving no adequate remedy on appeal. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987). Both conditions must be met. Id. Accordingly it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. Id. at 1098-99, citing Taylor v. Board of Public Instruction of Duval County, 131 So. 2d 504 (Fla. 1st DCA 1961).
The underlying case arises out of a claim for reimbursement for repair of a motor vehicle windshield. The insured assigned his benefits to Respondent Lloyd’s of Shelton Auto Glass (Lloyd’s). The policy’s comprehensive coverage covered the cost of the windshield’s repair. Upon receiving Lloyd’s invoice, Progressive tendered an amount less than the amount of the invoice and sent a letter invoking appraisal. Without responding to the offer of appraisal, Lloyd’s filed the underlying lawsuit, alleging breach of contract and seeking recovery for the full amount of the invoice. In response to Progressive’s motion, Lloyd’s argued, among other things, the appraisal provision was unenforceable because it violated §627.7288, Florida Statutes, which prohibits insurance companies from imposing a deductible to claims for windshield damage. The trial court agreed and denied Progressive’s motion to dismiss or to stay the action. This petition followed.
The violation of a clearly established principle of law is required for certiorari review of a nonfinal order. A misapplication of the correct law or an erroneous interpretation of a law does not rise to the necessary level. Fassy v. Crowley, 884 So. 2d 359, 364 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D2050a], citing Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682-83 (Fla. 2000) [25 Fla. L. Weekly S1103a]. A decision “made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.” Id.
The Legislature has determined broken windshields pose a significant safety hazard such that insureds should be encouraged to have them replaced immediately.1 That conclusion resulted in the enactment of §627.7288. Section 627.7288 prohibits deductibles on windshield glass2 because windshields represent the primary safety hazard on automobiles.3 In this case, the County Court determined the imposition of extra-contractual expenses upon an insured for claims of windshield damage conflict with the proscription in §627.7288, because it has the effect of charging a deductible.
This Court is mindful that appraisal’s use is, as are other forms of alternative dispute resolution, encouraged when appropriate. Allstate Ins. Co. v. Suarez, 833 So. 2d 762, 765 (Fla. 2002) [27 Fla. L. Weekly S1028a]. Petitioner has provided no judicial authority from any district court of appeal determining whether the practice constitutes a de facto violation of §627.7288. Certiorari jurisdiction cannot be used to create new law. Nader v. Department of Highway Safety and Motor Vehicles, 87 So. 3d 712, 723 (Fla. 2012) [37 Fla. L. Weekly S130a], citing Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682-83 (Fla. 2000) [25 Fla. L. Weekly S1103a]. Cf. Cotton States Mutual Ins. v. D’Alto, 879 So. 2d 67 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D2026f]. In this situation, it cannot be said the challenged Order departs from a clearly established principle of law.
Accordingly, it is ORDERED the Petition is DENIED without need for a response in Tampa, Hillsborough County, Florida, on the date imprinted with the Judge’s signature.
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1 Committee on Insurance, Staff Report, House Bill #357 (Fla. 1979).
2 The proscription on deductibles is for windshield glass only. Any other glass is potentially subject to a deductible.
3 Senate Staff Analysis and Economic Impact Statement, Senate Bill #354 (Fla. 1979).
