26 Fla. L. Weekly Supp. 420a
Online Reference: FLWSUPP 2605VILLInsurance — Automobile — Windshield repair — Where insurer could not explain what “prevailing competitive labor rates” means as used in limit of liability clause of insurance policy, which provides that payments for repairs will not exceed prevailing competitive labor rates charged in area where property is to be repaired as reasonably determined by insurer, and insurer claimed that information about means utilized by insurer to determine what price satisfied that clause was proprietary, insurer has failed to prove limitation of liability defense and is foreclosed from disputing plaintiff’s motion for summary disposition as to ambiguity of clause and whether insurer properly reduced bill pursuant to clause
BROWARD INSURANCE RECOVERY CENTER, LLC (a/a/o Igor Villalobos), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 17-9277 (53). March 26, 2018. Robert W. Lee, Judge. Counsel: Emlio R. Stillo and Joseph R. Dawson, for Plaintiff. Cristina Cabrera and Kevin Sincerbox, for Defendant.
AMENDED ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY DISPOSITION
THIS CAUSE came before the Court on March 8, 2018, on Plaintiff’s Motion for Final Summary Disposition, and the Court’s having reviewed the entire Court file, including the Plaintiff’s Motion, received argument from counsel for the parties, reviewed relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:
Background and Findings of Fact
This is a dispute over the underpayment of comprehensive/collision coverage for a windshield repair performed for Progressive’s insured. In accordance with the Court’s Pretrial Order of October 26, 2017 the parties filed a Joint Pretrial Stipulation. At the time of the hearing the following disputed issues remained: 1) whether the Plaintiff has standing; 2) liability of the Defendant for the subject damage and repair; 3) whether Defendant’s Limit of Liability is vague and ambiguous; and 4) whether Defendant may properly reduce Plaintiff’s bill pursuant to the Limits of Liability in the policy of insurance when the unrefuted evidence shows that the amount charged was reasonable.
The applicable policy language is as follows:
LIMIT OF LIABILITY
. . .
2. Payments for loss to a covered auto, non-owned auto, or custom parts or equipment are subject to the following provisions:
d. In determining the amount necessary to repair damaged property to its pre-loss physical condition, the amount to be paid by us:
(i) will not exceed the prevailing competitive labor rates charged in the area where the property is to be repaired and the cost of repair or replacement parts and equipment, as reasonably determined by us; and
(ii) will be based on the cost of repair or replacement parts and equipment which may be new, reconditioned, remanufactured, or used, including, but not limited to:
(a) original manufacturing parts of equipment; and
(b) nonoriginal manufacturing parts or equipment.
Plaintiff’s Motion for Summary Disposition was supported by the affidavit of Douglas Stroh who averred to the receipt of the assignment from the insured, the process of how the repair was effectuated as well as establishing the reasonableness of the amount charged. The Defendant did not file anything in opposition to Plaintiff’s Motion. Further, upon inquiry from the Court as to how the Defendant “reasonably determined” the payment the Defendant asserted that Defendant’s methodology was proprietary. The Defendant did not file anything of record in opposition to the Motion, but was permitted to make any argument at the hearing or rely upon any document to justify its position that Plaintiff was not entitled to the relief it sought. The Defendant was unable to do so.
At the hearing, the Court inquired of the Defendant as to how it believed the term “prevailing competitive labor rates” was to be interpreted given the fact that the term was not defined in the policy, and as to how the “prevailing competitive labor rates” is determined by the Defendant. As to the former, the response was that the term meant a “reasonable price,” which is a term not contained anywhere in the policy, nor in any definitional section, which is problematic. More problematic, however, was the fact that counsel for the Defendant would not articulate how the Defendant determined what price conformed with the parameters of the policy’s Limitation of Liability as that information was claimed to be “proprietary” in nature. Because the Defendant could not explain what “prevailing competitive labor rates” means, and refuses to articulate how it is determined claiming a privilege, the Court cannot find in favor of the Defendant and they cannot dispute the claim of Plaintiff that the amount reimbursed was not supported by the policy’s limitations of liability. Any limitation on liability is a defense that must be proven by the Defendant. Here, the Defendant claims that it should prevail in this case because it reimbursed at the rate of the “prevailing competitive labor rates,” but declines to explain how it reached that price. In essence then, the Defendant is attempting to convert its defense from one of “prevailing competitive labor rates” to one of pure ipso dixit. Even under the definition in the policy, the insurer has an obligation to “reasonably determine” what the “prevailing competitive labor rates” is. The Court is not required to simply take the Defendant’s word for it.
Conclusions of Law
Accordingly, under Rule 7.135, the Court finds that the Plaintiff is entitled to Summary Disposition as to the subject repair and standing based on the evidence provided. Further, the Court finds the Defendant is foreclosed from disputing Plaintiff’s Motion for Summary Disposition as to whether the policy provision is ambiguous and whether the Defendant properly reduced the bill pursuant to the limit of liability when the unrefuted evidence shows that the amount charged is reasonable. The Defendant cannot both shield itself from inquiry as to the methodology used to determine the price it may reimburse the Plaintiff while arguing to the Court that the methodology was “reasonably determined.” This is consistent with the Court’s prior rulings in the following cases: Fabio Castaneda v. Citizens Prop. Ins. Co., 19 Fla. L. Weekly Supp. 875a (Broward Cty. Ct. 2012); Clear Vision Windshield Repair (a/a/o Richard Voss) v. Government Employees Ins. Co., 23 Fla. L. Weekly Supp. 649a (Broward Cty. Ct. 2015); My Clear View Windshield Repair Inc. (a/a/o Gina Holden) v. Government Employees Ins. Co., 23 Fla. L. Weekly Supp. 648b (Broward Cty. Ct. 2015). Therefore, it is hereby,
ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Disposition is Granted. This Order clarifies and supersedes the Order entered on March 15, 2018. Plaintiff shall submit a proposed Final Judgment conforming to the terms of this Order.
