26 Fla. L. Weekly Supp. 434a
Online Reference: FLWSUPP 2605CHARInsurance — Automobile — Windshield repair — Where insurer failed to present any competent evidence as to how it defined and implemented policy language providing that payment for windshield repairs will not exceed prevailing competitive labor rates charged in area where property is to be repaired, insurer has failed to demonstrate that actual dispute as to loss exists so as to invoke appraisal provision of policy — Moreover, forcing insured’s assignee to pay for appraisal would create de facto deductible for windshield repair that is prohibited by Florida law — Motion to dismiss or to stay and compel appraisal is denied
BROWARD INSURANCE RECOVERY CENTER, LLC (a/a/o Rose Charleus), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-02634 COWE 81. June 19, 2018. Jane D. Fishman, Judge. Counsel: Emilio Roland Stillo, Andrew-Davis-Henrichs, and Lawrence M. Kopelman, for Plaintiff. Edward N. Krakauer, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS,OR ALTERNATIVELY MOTION TO STAY DISCOVERY,COMPEL APPRAISAL AND STRIKEPLAINTIFF’S CLAIM FOR ATTORNEY FEES
THIS CAUSE came before the Court on June 1, 2018 for hearing on Plaintiff’s Motion to Dismiss, or Alternatively Motion to Stay Discovery, Compel Appraisal and Strike Plaintiff’s Claim for Attorney Fees, and the Court, having reviewed the motion and entire Court file; having received the 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 Defendant’s motion is DENIED for the reasons set forth below.
FINDINGS OF FACT
On November 11, 2015, Rose Charleus sustained windshield damage to her 2012 Toyota Corolla. As a result, Ms. Charleus hired Clear Vision Windshield Repair, LLC to repair the damaged windshield, Ms. Charleus was then covered for comprehensive property damage loss under an automobile insurance policy issued by Defendant, Progressive Select Insurance Company.
In exchange for the windshield repair, Ms. Charleus executed an assignment of insurance benefits in favor of Clear Vision Windshield Repair, LLC (hereinafter referred to as “Clear Vision”) who, pursuant to the assignment, repaired the windshield and billed Defendant directly. Upon receipt of Clear Vision’s invoice in the amount of $117.15, Defendant sent Clear Vision a letter dated December 7, 2015 stating:
“We received an invoice for the glass repair of Rose Charleus’s vehicle requesting payment in the amount of $117.15. Progressive Select Insurance Company has determined the reasonable amount necessary for the repair to be $60.00, plus applicable tax. Since a dispute exists as to the amount of the loss, please advise that the above referenced Progressive Select Insurance Company immediately places all of the interested parties on notice that it invokes its right to appraisal as set forth in the applicable policy.”
About a month later, Defendant sent Clear Vision a second letter dated January 6, 2016 stating:
“We received an invoice for the glass repair of Rose Charleus’s vehicle requesting payment in the amount of $117.15. By letter dated 12/7/2015, Progressive Select Insurance Company notified you that it determined the reasonable amount necessary for the repair to be $60.00, plus tax and, since a dispute exists as to the amount of loss, Progressive Select Insurance Company provided the name and contact information of its appraiser. . . . We did not receive the name the name of your appraiser within 30 days as required by the policy. Therefore, we deem that you have accepted the amount determined by Progressive Select Insurance Company to be the reasonable amount necessary for the glass repair of your named insured’s vehicle. Enclosed is a check in that amount, payable to Clear Vision.”
Enclosed with the letter dated January 6, 2016 was a draft made payable to Clear Vision with the terms, “In payment of FINAL PAYMENT” expressed on the draft. Said draft was never cashed by Clear Vision.
Thereafter, the repair facility assigned to Plaintiff the right to seek the unpaid bill of $117.15, which is significantly less than the cost associated with appraisal which was up to $250.00 per claim.1
Plaintiff initiated this lawsuit in an effort to recover the amount invoiced and alleges that the full amount was owed to them as the language contained in the applicable Limits of Liability section is vague and is ambiguously written in that it is susceptible to more than one reasonable interpretation. In response to Plaintiff’s Complaint, Defendant sought to dismiss, or alternatively, stay the case, and to enforce the appraisal provision also contained in the insurance contract.The Policy Language
The insurance policy at issue states:
INSURING AGREEMENT — COMPREHENSIVE COVERAGE
1. If you pay the premium for this coverage, we will pay for sudden, direct, and accidental loss to a:
1. covered auto, including an attached trailer; or
2. non-owned auto;
and its custom parts or equipment, resulting from collision.
A loss not caused by collision includes:
9. breakage of glass not caused by collision.
INSURING AGREEMENT — FULL COMPREHENSIVE WINDOW GLASS COVERAGE
If you pay for the premium of Comprehensive Coverage, we will pay for sudden, direct, and accidental loss to a windshield on a covered vehicle that is no caused by a collision, without applying a deductible.
The Limits of Liability provision provides, in pertinent part:LIMITS OF LIABILITY
1. The limit of our liability for loss to a covered auto, non-owned auto, or custom parts or equipment is the lowest of:
a. the actual cash value of the stolen or damaged property at the time of the loss reduced by the applicable deductible;
b. the amount necessary to replace the stolen or damaged property reduced by the applicable deductible;
c. the amount necessary to repair the damaged property to its pre-loss physical condition reduced by the applicable deductible; or
d. the Stated Amount shown on the declarations page for that covered auto;
. . .
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 costs 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, not limited to:
(a) Original manufacturer parts or equipment; and
(b) Nonoriginal manufacturer parts or equipment.
(emphasis supplied).
Plaintiff contends Defendant’s policy ambiguously purports to limit Progressive’s liability to the “prevailing competitive labor rates charged” without providing any notice or guidance to the insured as to how this is to be determined. Plaintiff proffered documents, which the repair facility had received from Progressive, wherein Progressive expressed it makes windshield repair payments in accordance with the “reasonable amount necessary,” “fair and reasonable” and “Progressive’s in-network reimbursement rate.” In response, Progressive asserts its Limits of Liability provision no longer becomes applicable once appraisal is invoked.
Lastly, the Plaintiff claims that the relief sought by the Defendant in compelling appraisal creates an ipso facto deductible in that it obligates the Plaintiff to a pay a charge, i.e., the appraisal fee, to be reimbursed for windshield repairs, which is conflicting to Florida law, as insurers are not permitted to impose a deductible related to the payment for windshield damage repair. Moreover, based upon the evidence filed with this Court, Plaintiff proffers that the costs of participating in appraisal would significantly exceed the damages sought by the Plaintiff and thereby creates an economic deterrent which would harmfully effect the right of the insured to contest the amount of reimbursement paid by the Defendant for windshield repairs.
CONCLUSIONS OF LAW
Although not binding, this Court is persuaded by the solid reasoning penned by County Judge Robert W. Lee in Broward Insurance Recovery Center, LLC (a/a/o Igor Villalobos) v. Progressive Amer. Ins. Co. . Case No.: 17-9277 COCE (53), Broward County Ct. March 15, 2018 (Hon. Robert W. Lee) who cogently parsed the issues at dispute here and found:
Whether couched as a violation of the De Facto Deductible argument, or the Prohibitive Cost Doctrine, the result is the same — an unlawful requirement for payment by an insured related to windshield repair which runs afoul of the clear statutory scheme requiring insured to cover the cost of windshield repair without any payment required by an insured as a deductible. The costs of appraisal would also result in the creation of a chilling effect to any insured seeking to contest the application of the Limitation of Coverage on windshield claims.
In this case, as in others pending, Defendant asserts that since it paid what it perceives to be the “reasonable amount necessary,” it owes the Plaintiff nothing further. However, Defendant’s policy states the maximum amount it will pay for windshield repairs “will not exceed the prevailing competitive labor rates charged in the area where the property is to be repaired and the costs of repair or replacement parts and equipment, as reasonably determined by [Progressive].” Even. if, in arguendo, the appraisal provision did not create a de facto deductible, there is no meaningful dispute as to the amount of the loss and Defendant has presented no evidence that the amount of the Plaintiff’s charge exceeds the prevailing competitive labor rates charged in the area where the property was repaired. Defendant presented no evidence pertaining to what is “prevailing “in the community. It produced no evidence as to its meaning of “competitive”. It produced no evidence regarding “labor rates” and it produced no evidence regarding charges. The defendant merely contends that amount it paid was reasonable. The Court notes that while the reasonableness of a charge may be an issue in PIP cases, that is not the methodology for determining how payments may be limited under this policy.
The appraisal provision in the policy requires an actual dispute or disagreement as to the amount of the loss. “Only when there is a ‘real difference in fact, arising out of an actual and honest effort to reach an agreement between the insured and the insurer,’ is an appraisal warranted.” Citizens Prop. Ins. Corp. v. Galeria Villlas Condominium Ass’n, Inc., 48 So.3d 188 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2586a] citing U.S. Fidelity & Guar. Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1963a]. Since the Defendant failed to present any competent evidence as to how it defined and implemented the limiting language in the policy it has failed to demonstrate that an actual dispute as to the amount of the loss exists. That alone renders the appraisal provision inoperative in this case. Coupled with the Court’s conclusion that forcing the Plaintiff to pay for appraisal would create an ipso facto or de facto deductible the Court denies Defendants Motion to Dismiss, or Alternatively Motion to Stay Discovery, Compel Appraisal and Strike Plaintiff’s Claim for Attorney Fees.
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1Affidavit of Plaintiff’s Corporate Representative, Steven A. Schaet, paragraph 8, stating that an appraiser’s fee is between $150.00 and $250.00 per claim.
