26 Fla. L. Weekly Supp. 424a
Online Reference: FLWSUPP 2605REGAInsurance — Automobile — Windshield repair — Limit of liability clause stating that liability for loss will not exceed prevailing competitive rate that is described as “price we can secure from a competent and conveniently located repair facility” is intrinsically ambiguous — Even if policy were not ambiguous, plaintiff windshield repair shop would be entitled to summary judgment for balance of reduced charge where plaintiff established loss, insurer’s evidence of charges for repairs paid to “in-network” shops does not establish prevailing competitive rate, and plaintiff demonstrated that on multiple occasions insurer has paid same amount as plaintiff’s charge without reduction
AUTO GLASS AMERICA LLC (a/a/o Leslie Regan), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-008951 COWE 81. May 8, 2018. Jane D. Fishman, Judge. Emilio R. Stillo and Andrew B. Davis-Henrichs, Emilio Stillo, P.A.; Mac S. Phillips, Phillips Tadros, P.A.; and Lawrence M. Kopelman, Lawrence M. Kopelman P.A., for Plaintiff. Scott Zimmer, Law Offices of David S. Dougherty, for Defendant.
FINAL JUDGMENT IN FAVOR OF THE PLAINTIFF
THIS CAUSE came before the Court on April 24, 2018 for hearing on Plaintiff’s Motion for Final Summary Judgment, and the Court, having reviewed the motions and entire Court file; having reviewed received the summary judgment evidence submitted by the parties; having reviewed the relevant legal authorities; having heard argument from counsel; and having been sufficiently advised in the premises,
ORDERS AND ADJUDGES that the Plaintiff’s motion is GRANTED for the reasons set forth below.FINDINGS OF FACTBackground
On December 21, 2016, Leslie Regan sustained windshield damage on her 2009 Ford Flex. On January 25, 2017, Ms. Regan hired Plaintiff Auto Glass America, LLC to replace it. Ms. Regan was then covered for comprehensive property damage loss under an automobile insurance policy issued by Defendant Geico General Insurance Company.
In exchange for the windshield replacement, Ms. Regan executed an assignment of insurance benefits in favor of Plaintiff who, pursuant to the assignment, replaced the windshield and billed Defendant directly. Upon receipt of Plaintiff’s invoice in the amount of $854.29, Defendant paid Plaintiff $327.21.
Plaintiff initiated this lawsuit in an effort to recover the difference between the amount invoiced and the lesser amount that Defendant paid. In response to Plaintiff’s Complaint, Defendant took the position that it properly reimbursed the lesser amount pursuant to the “Limit of Liability” provision in the Comprehensive portion of the Property Damage section of the policy.The Policy Language
The insurance policy at issue states:
Comprehensive (Excluding Collision)
1. We will pay for each loss, less the applicable deductible, caused other than by collision to the owned or non-owned auto. This includes glass breakage. No deductible will apply to loss to windshield glass.
At the option of the insured, breakage of glass caused by collision may be paid under the Collision coverage, if included in the policy.
The Limit of Liability provision provides, in pertinent part:
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.
(emphasis supplied).
In this case, as in many others pending throughout the state, Defendant asserts that since it paid what it perceives to be the “prevailing competitive price,” it owes the Plaintiff nothing further. Defendant further alleges that the “prevailing competitive price” is the price Defendant secured from other autoglass service providers who are members of an “in-network” pricing agreement facilitated by Defendant and a third-party payment processer named Safelite Solutions. In other words, the “prevailing competitive price” was predicated on amounts other glass repair shops agreed to accept in order to become part of the Geico/Safelite network of glass repair shops. It is undisputed that the Plaintiff was not a member of this network and did not agree to replace Ms. Regan’s windshield at the “network” price.
Plaintiff’s position in this litigation is twofold: (1) the “prevailing competitive price” language is ambiguous; and (2) even if the language was clear, Defendant has not met its burden to establish the “prevailing competitive price” is anything other than the amount Plaintiff invoiced.
This Court agrees with the Plaintiff on both points.
Plaintiff’s Summary Judgment Evidence
Plaintiff filed the affidavit of Charles Isaly, its owner and corporate records custodian, in which Mr. Isaly testified that he has personal knowledge of all aspects of Auto Glass America LLC’s business including billing, scheduling, accounting, setting prices, processing claims and ensuring invoices are timely submitted to insurers. Further, Mr. Isaly avers that Plaintiff provides a lifetime warranty on all work performed as well as product defects. Mr. Isaly testified that Plaintiff submitted an invoice to GEICO for $ 854.29 for the replacement of Ms. Regan’s windshield and that Defendant only paid $ 327.21. The resulting balance is $ 527.08.
Mr. Isaly testified that the amounts charged on the invoice reflect a total price that is both prevailing and competitive in the area in which glass replacement services were provided. In support of this statement, Mr. Isaly provided thirty examples of payments to Plaintiff by Defendant in the amount of 150% of the pricing established by the National Auto Glass Specification (NAGS), on which Plaintiff’s charge in the instant case was based. Many of these examples were from 2017 dates of service.
In addition to Mr. Isaly’s affidavit, Plaintiff also relied on admissions made under oath by two representatives of Defendant — Steve Blome, Defendant’s glass department manager, and Ronnie Lee Foskey, who Geico designated to testify about the meaning of “competent” and “conveniently located” as used in the policy. Mr. Blome stated in an affidavit filed in a different case 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). Additionally, Plaintiff pointed to the deposition testimony of Ronnie Lee Foskey, that “competent” — to Defendant — means “not faulty” and a “repair facility who’s in business.” Mr. Foskey further testified that the “customer chose the shop, so there would be no way to dispute they were not conveniently located.”
Based on this testimony and admissions from Mr. Isaly, Mr. Blome and Mr. Foskey, there is no genuine issue of material fact regarding whether Plaintiff was competent or conveniently located to the insured at the time of loss. See, also, Auto Glass America, LLC (a/a/o Edgardo Ortiz) v. GEICO General Ins. Co., 25 Fla. L. Weekly Supp. 908a (Fla. Broward County Ct. November 28, 2017)(Hon. John Hurley).
Defendant’s Summary Judgment Evidence
In opposition to Plaintiff’s Motion for Summary Judgment, Defendant has filed Mr. Isaly’s deposition taken in Auto Glass America, LLC a/a/o James Bowen v. Geico General Insurance Company, Et Al., Orange County, Case No. 2016-SC-008714-0 and the affidavit of Susanna Eberling1, Defendant’s Continuing Unit Examiner.
Ms. Eberling’s affidavit states that Defendant provided a work order to Plaintiff after a three-way call between the insured, an Auto Glass America representative and GEICO representative. While the work order states “[p]erformance of services constitutes acceptance of the communicated price and billing instructions” it is undisputed during the call that Auto Glass America had already rejected that price. Further the affidavit states that Defendant’s payments under the policy are made according to 50% of NAGS and $40.00 dollars per labor hour, although those pricing parameters are nowhere mentioned or even referenced in the insurance policy.
Geico also filed Mr. Isaly’s deposition taken in Auto Glass America, LLC aao James Bowen v. Geico General Insurance Company Et Al., Orange County, Case No. 2016-SC-008714-0. In response, Plaintiff filed a supplemental affidavit of Mr. Isaly in which he identified numerous carriers that had paid Auto Glass America invoices at between 110% and 150% of NAGS, including Allstate, Hartford, 21st Century, Dairlyland, Gainsco, Infinity, Liberty Mutual, Windhaven, Security National and many others, including Geico. Further, the affidavit establishes that through the course of dealings between the parties that Auto Glass America does not accept 50% of NAGS, the amount Geico paid in this case.
Against this factual backdrop, this Court must make a legal ruling on the following issues.
ISSUES OF LAW
The issues are:
1. Whether the insurance policy’s Limit of Liability section is ambiguous;
2. Whether the Defendant breached the contract of insurance by failing to pay the loss and establishing that the price charged by Plaintiff exceeded the “Prevailing Competitive Price “as set forth in the policy; and
3. Whether receipt of GEICO’s work order constitutes an “accord and satisfaction” which would relieve the insurer of their obligation to pay Plaintiff’s charge or whether the Plaintiff would be “equitably estoppel from pursuing same”.
THE PARTIES’ LEGAL POSITIONS
The Court is tasked with determining whether the policy language purporting to limit reimbursement to the “prevailing competitive price” is ambiguous. The policy requires the Defendant to pay the loss and is limited only to the extent that Defendant will not pay an amount which exceeds the “prevailing competitive price” to repair or replace the property. The policy further states that although the insured has 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 the insurer can secure from a competent and conveniently located repair facility.
A. The Plaintiff’s Position
The Plaintiff argues that so long as the amount it charges can be secured by the Defendant and the Plaintiff’s facility is competent and conveniently located the Defendant must pay the amount of the invoice. To the extent the policy can reasonably be interpreted differently, then the “prevailing competitive price” language is ambiguous.
Alternatively the Plaintiff argues that if the policy is somehow deemed unambiguous the Defendant has failed to establish its burden that the amount of the invoice exceeds the prevailing competitive price.
B. The Defendant’s Position
Defendant’s position is that the “prevailing competitive price” language is not ambiguous and is always a question of fact under the holding in Government Employees Ins. Co. v. Superior Auto Glass of Tampa Bay, Inc., et al., Consolidated Appeal Nos. 16-CA-5106, 16-CA-7959, 16-CA-7963, 16-CA-7041 and 16-CA-8940, Slip Opinion at p. 2 (Fla. 13th Jud. Cir. Ct. App. Div. March 27, 2018). Defendant urges the Court that Matthew Dick, supra, is a reasonable in interpretation of its policy.
CONCLUSIONS OF LAWAmbiguity
By definition and as a matter of law, an ambiguity arises when a policy provision is susceptible to two reasonable interpretations. Washington Nat. Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a]. It has long been a tenet of Florida insurance law that an 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. Id. This principle of the law is firmly imbedded in the jurisprudence of this State that contracts of insurance should be construed most favorably to the insured. Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828, 830 (Fla. 1997) [22 Fla. L. Weekly S513a]. “Florida case law does not allow insurers to ‘use obscure terms to defeat the purpose for which a policy is purchased.’ ” Purrelli v. State Farm Fire & Cas. Co., 698 So. 2d 618, 620 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2099d].
This Court finds that the term “prevailing competitive price” described as “the price we can secure from a competent and conveniently located repair facility” is intrinsically ambiguous. By use of the word “can,” Defendant made it subject to multiple interpretations as the ordinary use of the word “can” means “be able to .” As well, the word “can” implies future action as opposed to something that has been done in the past. (i.e. “I can do that.”). As applied, this term creates ambiguity. The policy does not say that “the price” is one the Defendant has secured or chooses to secure or is based on a survey or other accumulation of prices charged by multiple repair facilities in the neighborhood; nor does it say that we will pay “the lowest price we can secure.” There is no reference to any specific price, parameter, schedule or standard by which an insured, or as here, an assignee, determine the amount it may expect to be reimbursed. It is reasonable to read the policy to mean that Defendant must pay the amount billed for windshield replacement services so long as the repair facility of the insured’s choice was competent and conveniently located, and so long as the price was not alleged to be unconscionable. There is no reason to believe the Defendant cannot “secure” the price the insured was able to obtain, and Defendant offered no other prices that it “can” secure that it received from facilities that are not “in-network.”
Although not binding, this Court is also persuaded by the other county court decisions specifically holding that Defendant’s Limit of Liability clause is ambiguous. See My Clear View Windshield Repair, Inc (a/a/o Luis Adams) v. GEICO General Insurance Company, 24 Fla. L. Weekly Supp. 884a, (Fla. Broward County Ct. November 8, 2016)(Hon. Peter B. Skolnik). Windshield Florida Style, LLC (a/a/o Lindsey Day) v. GEICO General Ins. Co., et al., Case No.: 2016-SC-021964-O, (Fla. Orange County Ct. September 22, 2017)(Hon. Eric Dubois); Windshield Florida Style, LLC (a/a/o Trniece Williams) v. GEICO General Ins. Co., et al., Case No.: 2016- SC-021815-O, (Fla. Orange County Ct. September 22, 2017)(Hon. Eric Dubois).
The Court finds that the Plaintiff’s interpretation is reasonable. And assuming Defendant’s interpretation may also be determined to be reasonable, we are left with two reasonable interpretations of the same language. As a consequence of these two reasonable interpretations, the Court finds that the “prevailing competitive price” language in the Limit of Liability section of the policy is ambiguous.
Prevailing Competitive Price as a Question of Fact
Even if this Court were to decide that the policy is clear and unambiguous, Plaintiff is still entitled to summary judgment.
The Plaintiff has met its burden of proof by establishing a loss under the policy through Mr. Isaly’s affidavit. Mr. Isaly owns Auto Glass America and testified as to his familiarity with all aspects of Plaintiff’s business. In Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c], the Court held that an owner’s presumed familiarity with the characteristics of property, knowledge or acquaintance with its uses and purposes and experience can establish the property’s value. Id. at 702. This rule has been extended to permit owners and corporate representatives to testify as to business valuation. Mercury Marine Division of Brunswick Corp. v. Boat Town USA Inc., 444 So.2d 88 (Fla. 4th DCA 1984); See, also, In re Biddiscombe International, LLC v. Gayheart, 392 B.R. 909 (U.S. Bankruptcy Court MD. Tampa 2008) [21 Fla. L. Weekly Fed. B501a] (Citing the traditional practice of allowing an owner of property to testify as to its value). Most courts allow an officer or owner of business to testify as to its value or projected profits without the need to qualify as an expert because such lay opinion testimony is based on a type of personal knowledge — the particularized knowledge that the witness has by virtue of his or her position in the business.
Upon Plaintiff establishing the loss, it then is incumbent on the insurer to demonstrate that the amount it must pay is limited by the terms of the policy. Defendant has the burden of establishing the application of any liability limitations. See St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5th DCA 2002) [28 Fla. L. Weekly D131b]. In this case, Defendant must show that Plaintiff’s price exceeds the “prevailing competitive price.”
In Government Employees Ins. Co. v. Superior Auto Glass of Tampa Bay, Inc., et al., Consolidated Appeal Nos. 16-CA-5106, 16-CA-7959, 16-CA-7963, 16-CA-7041 and 16-CA-8940, Slip Opinion at p. 2 (Fla. 13th Jud. Cir. Ct, App. Div. March 27, 2018)(the “Matthew Dick case”), the Court held “that ‘prevailing competitive price’ is a question of fact, in the same sense that ‘fair market value,’ ‘reasonable and necessary,’ ‘usual customary charges,’ and plain ‘reasonable’ are in other contexts” and that the “same standards — and in particular the same standard for the grant or denial of summary judgment — apply.” Id. at p. 8. Accordingly, as in PIP “reasonableness” cases the granting of summary judgment may be appropriate.
In this case — as in the Matthew Dick case — Defendant cannot meet its burden by arguing the prevailing competitive price is limited to an amount it alone could obtain from “in-network” shops through a non-open-market transaction. The test articulated by the court in the Matthew Dick case is what the service would cost in a competitive market in a normal, arm’s length non-insurance transaction. The Defendant has presented no evidence to demonstrate any prices it can secure in a competitive market. To the contrary, Plaintiff has presented evidence that on numerous other occasions Defendant has paid the amount of the Plaintiff’s invoice without reduction. It is undisputed that the policy language governing the losses and limitations in those claims was the same as the policy language in this case. As a result, the Court concludes that the Defendant itself has determined that the Plaintiff’s charge does not exceed the prevailing competitive price by way of making the numerous payments.
The Court concludes that the Matthew Dick case expresses an interpretation of the policy that is also reasonable. But for the reasons stated above, Plaintiff is entitled to a final judgment under the holding in Matthew Dick even if the policy is determined to be clear and unambiguous.
Geico also filed Mr. Isaly’s deposition taken in Auto Glass America, LLC aao James Bowen v. Geico General Insurance company Et Al., Orange County, Case No 2016-SC-008714-0. In that deposition, Mr. Isaly vaguely testified that the Plaintiff charges lower prices to customers that have no insurance, and based on that, Geico contends this means that the Plaintiff did not satisfy the “prevailing competitive price” test described in Superior Auto Glass. This argument is rejected.
In the deposition, Mr. Isaly did not testify that the Plaintiff always charges lower prices to every uninsured customer. Instead, in the same deposition, Mr. Isaly thoroughly explained what factors are considered when setting the Plaintiff’s prices for windshield services, and those factors are consistent with the Matthew Dick case. A price that the Plaintiff may have allegedly charged in an isolated transaction or case-by-case basis to a so-called “non-insurance customer” is irrelevant to the “competitive market” test imposed by the Matthew Dick case. For example, if the Plaintiff charged a discounted price to hard-luck, financially challenged customers, that would not mean that the Plaintiff’s charge in this case is not “what the service would cost in a competitive market in a normal, arms’ length non-insurance transaction.” It is clear that a “non-insurance transaction” as identified in the Matthew Dick case, describes a transaction that does not involve privately discounted prices secured by an insurance company from particular affiliated, “in-network” repair shops. Prices that an insurance company alone could obtain through a non-open-market transaction, such as the privately discounted prices described in the “Geico” work order, as well as, the pricing structure set forth by Defendant, cannot constitute the “prevailing competitive price.” As previously noted, Mr. Isaly’s unrebutted affidavit in this case establishes that the Plaintiff charged its usual and customary price, which was based on numerous factors, and that Plaintiff’s charge was a fair and reasonable competitive market price for the services provided to the Insured.
In sum, the Plaintiff has met its burden of demonstrating that it charged a fair and reasonable competitive market price which does not exceed the prevailing competitive price limitation of Geico’s insurance policy, as interpreted by the court in the Matthew Dick case. In contrast, Geico has not established that the amount it paid to Plaintiff was set pursuant to a “normal, arms’ length non-insurance transaction” as mandated the Matthew Dick case, or that the Plaintiff’s charges exceed the prevailing competitive price as defined described therein. As a result, Mr. Isaly’s affidavit remains unrebutted.Equitable Estoppel and Accord And Satisfaction Defenses
The elements of equitable estoppel are: (a) a representation as to a material fact that is contrary to a later-asserted position; (b) reliance on that representation; and (c) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. State v. Harris, 881 So.2d 1079, 1084 (Fla.2004) [29 Fla. L. Weekly S230a]; Lloyds Underwriters at London v. Keystone Equip. Fin. Corp., 25 So.3d 89, 93 (Fla. 4th DCA) [35 Fla. L. Weekly D5a]. The facts do not establish the required elements. Further, the elements of both common law and statutory accord of satisfaction are not satisfied as a matter of law. Oakland Park MRI Inc. d/b/a DPI of Fort Lauderdale (a/a/o Niurka Fuentes) v. United Automobile Insurance Company, 24 Fla. L. Weekly Supp. 82a (Broward County, July 28, 2015)(Miranda, J.); MR Services I, Inc. (a/a/o Kevin Henderson) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 856a (Broward County, January 14, 2014)(Lee, J.).
CONCLUSION
For the reasons set forth, above, the Court hereby declares that the term “prevailing competitive price” as applied to be ambiguous and is to be construed in favor of the Plaintiff.
The Court also finds under the analysis in the Matthew Dick case that Plaintiff’s invoiced amount is a “prevailing competitive price” as a matter of law, as interpreted by the Matthew Dick court. The undisputed evidence establishes that the Plaintiff is “competent,” was “conveniently located” for the insured, that Geico secured the Plaintiff’s price, and that the price charged is a fair, reasonable, usual and customary, prevailing, competitive market price resulting from an arm’s length transaction.
Therefore, it is hereby ORDERED AND ADJUDGED that Final Judgment is hereby entered in favor of the Plaintiff, AUTO GLASS AMERICA LLC, which shall recover from Defendant GEICO GENERAL INSURANCE COMPANY the principal sum of $ 527.08 plus statutory interest for which let execution issue forthwith.
The Plaintiff is the prevailing party and is entitled to am award of attorneys’ fees and costs in an amount to be determined. The Court. retains jurisdiction to determine the amount of attorneys’ fees and costs to which Plaintiff is entitled to recover.
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1It is noted the affidavit of Eberling filed with the Court attests to case specific information not related to the claim at issue.
