25 Fla. L. Weekly Supp. 575b

Online Reference: FLWSUPP 2506MORRArbitration — Insurance — Automobile — Windshield replacement or repair — Confirmation of arbitration award is required where neither party filed timely request for trial de novo

RIVERVIEW RECOVERY, INC. (a/a/o Anthony Morris), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit, in and for Broward County. Case No. 16-15640 COCE (53). July 31, 2017. Robert W. Lee Judge. July 31 2017. Arbitrator’s Decision June 27, 2017. Counsel: Steven Lander, Ft. Lauderdale, for Plaintiff. Ryan S. Kelley, Plantation, and Jason S. Rice, Tampa, for Defendant.

FINAL JUDGMENT ON ARBITRATOR’S DECISIONIN FAVOR OF PLAINTIFF

THIS CAUSE came before the Court for consideration of the notice of filing Arbitration Award filed by the Arbitrator Fred Berman, and the Court’s having reviewed the docket, the entire Court file, and the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:

This case was submitted to mandatory arbitration. The arbitrator served his decision by U.S. mail and email on June 27, 2017, a copy of which is attached hereto. [Editor’s Note: Published below.] Under Rule 1.820(h), Fla. R. Civ. P., a motion for trial de novo must be “made” within 20 days of the “service” of the arbitrator’s decision. Under Florida law, “a party has the right to move for a trial within twenty days after service of the arbitrator’s decision. If no motion for trial is timely served, then the trial court must enforce the decision of the arbitrator and has no discretion to do otherwise” (emphasis added). Bacon Family Partners, L.P. v. Apollo Condominium Ass’n, 852 So.2d 882, 888 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1795a]. See also Johnson v. Levine, 736 So.2d 1235, 1238 n.3 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D1456a]; Klein v. J.L. Howard, Inc., 600 So.2d 511, 512 (Fla. 4th DCA 1992). The Arbitration Decision reflects that the arbitrator appropriately considered the parties’ arguments, as well as their submitted evidence. Rule 1.820(c). The Court lacks discretion to deny entry of a judgment in accordance with the arbitrator’s decision when the parties fail to timely request a trial de novo or otherwise fail to dispose of the case of record within the de novo deadline.

The parties’ request for trial de novo was required to be filed no later than July 24, 2017. A five-day mailing period was added because the arbitrator served his decision by U.S. mail and email. See Federated Financial Corp. of America v. Cohen, 14 Fla. L. Weekly Supp. 981b (Broward Cty. Ct. 2007); Rule 1.090(e). Neither party filed a timely request. As a result, the Court is required to enter judgment in accordance with the Arbitrator’s decision. See Gossett & Gossett, P.A. v. Fleming, 10 Fla. L. Weekly Supp. 839b (Broward Cty. Ct. 2003). Accordingly, the Court has this day unsealed the Arbitrator’s decision. As a result, it is hereby

ADJUDGED THAT:

The Plaintiff shall recover from the Defendant, GEICO GENERAL INSURANCE COMPANY, the sum of $594.94, which sum shall hereafter bear interest at the rate of 5.05% per annum. The Plaintiff is also entitled to an award of attorney’s fees and costs, which the Court reserves jurisdiction to determine.

__________________Arbitration Decision

(FRED BERMAN, Arbitrator.) THIS MATTER came before the undersigned arbitrator on June 13, 2017, pursuant to the Court’s order of mandatory, non-binding arbitration. Present at the hearing were: Steven Lander, Esq., representing the Plaintiff and Jason M. Rice, Esq., and Ryan Kelly, Esq., representing the Defendant. The Parties respective corporate designees were also present.

After considering the arguments of the parties, and reviewing the documents submitted by the Plaintiff, to wit: Summary of Claim attaching a composite of Exhibits as follows: Exhibit A (Plaintiff’s Complaint), Exhibit B (Defendant’s Answer and Affirmative Defenses), Exhibit C (the Policy of Insurance), Exhibit D (the Invoice/Assignment of Benefits), and Exhibit E (Plaintiff’s Notice of Filing Supplemental Authority); the Arbitrator renders this Decision in favor of the Plaintiff and against Defendant, GEICO.¹

Undisputed Facts

GEICO’s insured, Anthony Morris, executed an Assignment of Benefits, assigning its rights under the policy of insurance to Charlie’s Auto Glass Installers of Pompano (hereinafter “Charlie’s Auto Glass”) in exchange for repairs to the damaged windshield on the insured’s vehicle. Charlie’s Auto Glass billed Defendant in the amount of $590.35, including tax. Instead of paying the full amount due, Defendant elected to pay only $325.58, leaving $264.77 due and owing on the bill. Thereafter, Charlie’s Auto Glass assigned the remainder of its rights and benefits to Plaintiff, Riverview Recovery who, in turn, sued Defendant for breach of contract to recover the amount of the bill which remains due and owing. The total amount which remains in dispute is $264.77.

Legal Arguments

The parties are in agreement that the issue in this case is whether the Defendant breached its contract of insurance by not paying the billed amount for the windshield repair. Defendant argues that it paid the correct amount as it claims that it is permitted it to limit reimbursement at that level based upon the “Limit of Liability” section of the policy. 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.

It is undisputed that the facility that performed the repairs, Charlie’s Auto Glass, is a competent and conveniently located repair facility in compliance with the terms of insurance policy and that the amount charged for the repairs was a price that Defendant could have secured. Accordingly, Plaintiff argues it is entitled to have its bill paid in full.

Defendant contends, on the other hand, that it could have secured a price from a competent and conveniently located facility that is equal to the reduced amount it chose to pay towards the bill and that, therefore, the reduced amount represents the maximum Defendant is required for the to pay on the bill.

Legal Analysis

The Arbitrator finds that the Limit of Liability provision in the insurance policy is ambiguous as the parties competing interpretations are both reasonable. Specifically, the definition of the “prevailing competitive price” as “the price we can secure. . .” 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 Arbitrator is also persuaded by the other county court decisions specifically holding that Defendant’s Limit of Liability clause is ambiguous. See, e.g., My Clear View Windshield Repair, Inc. (a/a/o Benjamin & Evelyn Jimenez) v. GEICO Gen. Ins. Co., 14-016686 (the Limit of Liability Policy language while clear, becomes ambiguous “when the phrase is applied to a determination of the amount to which a repair facility is entitled to be paid as a consequence of two competing interpretations.”) see also Superior Auto Glass of Tampa Bay, Inc. (a/a/o David Gilbo) v. GEICO General Insurance Company, 16-CC-007306 (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).

Lastly, Plaintiff argues that, if accepted, Defendant’s suggested reading of the policy would permit Defendant to require insureds to use only those repair facilities approved by the Defendant (i.e., only those repair facilities with which the Defendant maintains a favorable economic relationship) without providing any corresponding benefit to the insured (i.e., a reduction in premiums). Clearly, Defendant’s relative market power places it in position to obtain lower prices than those which are generally available in the “competitive marketplace.” The wrongful conduct, in this Panel’s view, is not the fact that Defendant uses its market position to obtain lower repair prices than can generally be obtained in the “competitive marketplace,” but rather that the Defendant seeks to require insureds to use a limited set of “preferred” repair facilities without giving insureds the benefit of reduced premiums. To be sure, insurance companies may issue policies which require insureds to use “preferred” repair facilities, however, any such limitation must come with a corresponding cost to the carrier in the form of lowered premiums. If the insurer wishes to require its insureds to use a limited set of “preferred” repair facilities, it must specifically contract for such an arrangement. To do as the Defendant did in this case, appears to be an unfair trade practice. Here, the Defendant seeks to gain all the advantage of a “Preferred Provider” Insurance Policy, with none of its costs.

ACCORDINGLY, the Arbitrator finds in favor of Plaintiff in the amount of $594.94, and all other matters are left to be decided by the Court, as applicable, as they were not raised or addressed by the parties.

__________________

¹Defendant submitted no documents for review by this panel.