27 Fla. L. Weekly Supp. 743a
Online Reference: FLWSUPP 2708ENRIInsurance — Automobile — Windshield repair — Appraisal — Prohibitive cost doctrine — Where repair shop contests insurer’s motion to compel appraisal of windshield repair claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on shop’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 claims
BROWARD INSURANCE RECOVERY CENTER, LLC, a/a/o Elizabeth Enriquez, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 18-CC-062170, Division H. September 25, 2019. Alissa Ellison, Judge. Counsel: Emilio R. Stillo, Kevin W. Richardson, and Andrew B. Davis-Henrichs, Stillo & Richardson, P.A., Tampa, for Plaintiff. Daniel Montgomery, Cole, Scott & Kissane, P.A., Tampa, for Defendant.
ORDER
THIS CAUSE came before the Court on August 1, 2019, on Defendant’s Motion to Dismiss, or Alternatively Motion to Stay and Compel Appraisal, and the Court, having reviewed the relevant legal authorities, and having hearing argument of counsel, hereby finds as follows:
Defendant has filed its Motion to Dismiss, or Alternatively Motion to Stay and Compel Appraisal. 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. 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 Alternatively Motion to Stay and Compel Appraisal, is ABATED until such time as the Evidentiary Hearing is concluded.
