27 Fla. L. Weekly Supp. 647b
Online Reference: FLWSUPP 2707KAUFInsurance — Automobile — Windshield repair — Appraisal — Plaintiff seeking declaration that appraisal in context of windshield repair claim violates prohibitive cost doctrine — Evidentiary hearing to be conducted on issues of plaintiff’s ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing of claims
AUTO GLASS AMERICA, LLC, a/a/o Milton Kaufman, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 18-CC-060359, Division H. August 20, 2019. Alissa M. Ellison, Judge. Counsel: Kevin W. Richardson, Emilio R. Stillo and Andrew Davis-Henrichs, Stillo & Richardson P.A., Tampa, for Plaintiff. Timothy Mchaffie, Law Office of Robert J. Smith, Tampa, for Defendant.
ORDER
THIS CAUSE came before the Court on June 18, 2019, on Defendant’s Motion to Dismiss or, in the alternative, Abate Complaint, Demand for Appraisal, and Motion for Protective Order Regarding Discovery, and the Court, having reviewed the relevant legal authorities, and having hearing argument of counsel, the Court hereby finds as follows:
Defendant has filed its Motion to Dismiss or, in the alternative, Abate Complaint, Demand for Appraisal, and Motion for Protective Order Regarding Discovery. The Plaintiff subsequently filed an Amended Complaint asserting four counts for declaratory relief, including Count III which seeks a judicial declaration that appraisal in the context of the subject claim violates the prohibitive cost doctrine. Plaintiff has contested the Defendant’s Motion by raising several legal arguments in response thereto, including the Prohibitive Cost Doctrine. The Prohibitive Cost Doctrine stems from Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000), which recognizes that the costs of arbitration can be prohibitive and render an agreement unenforceable by denying a plaintiff access to the forum. The applicability of the Prohibitive Cost Doctrine must be made on a case by case basis and requires an evidentiary showing of individualized prohibitive expense. Zephyr Haven Health & Rehab Center, Inc. v. Hardin, 122 So. 3d 916 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2070a] (citing Bradford v. Rockwell Semiconductor Systems, Inc., 238 F. 3d 549 (4th Cir. 2001)); FI-Tampa, LLC v. Kelly-Hall, 135 So. 3d 563, 567 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D748a].
In so much as Plaintiff argued in its response that it is entitled to an evidentiary hearing, the parties are hereby directed to set an evidentiary hearing on the issue of the application of the Prohibitive Cost Doctrine for August 30, 2019 at 9:00 AM. Per Zephyr Haven Health & Rehab Center, the evidentiary hearing shall focus on Plaintiff’s ability to pay the appraisal fees and costs, the expected cost differential between appraisal and litigation in court, and whether the cost differential is so substantial as to deter the bringing of claims. Id. at 922 (citing Bradford, 238 F. 3d at 556); see also FI-Tampa, LLC, 135 So. 3d at 567.
Defendant’s Motion to Dismiss or, in the alternative, Abate Complaint, Demand for Appraisal, is ABATED until such time as the Evidentiary Hearing is concluded.
