27 Fla. L. Weekly Supp. 752a
Online Reference: FLWSUPP 2708SEEDInsurance — Automobile — Windshield replacement — Prevailing competitive price — Term “prevailing competitive price,” used in limit of liability clause in automobile insurance policy and described as “price we can secure from competent and conveniently located repair facility,” was ambiguous — Even if policy were not ambiguous, plaintiff established prima facie case of breach of contract with supporting affidavits of repair facility’s record custodian and experienced technician, who both testified the amounts charged on invoice reflected total price that is both prevailing and competitive in area in which services were provided — Insurer failed to meet its burden to establish that amount sought was limited by terms of policy — Corporate representative’s affidavit which did not identify any methodology as to how prevailing competitive price was determined, provide any date relating to “prevailing” or “competitive” prices; did not provide any information as to why repair done and amount charged should not be considered prevailing competitive price, and used conclusory statements — Plaintiff’s motion for summary judgment granted
PATRIOT GLASS, LLC (a/a/o Felicia A. Seedorf), Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-011009 COWE 82. September 20, 2019. Natasha DePrimo, Judge. Counsel: Emlio R. Stillo and Andrew Davis-Henrichs, Stillo & Richardson, P.A., and Mac S. Phillips, Phillips Tadros, P.A., for Plaintiff. Vanessa S. Septien and Kimberly S. Brown, Franklin Legal Group, P.A., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on September 9, 2019 for hearing on Plaintiff’s Motion for Final Summary Judgment, and the Court, having reviewed the motions and entire Court file; having reviewed all summary judgment evidence; having reviewed the relevant legal authorities; having heard argument from counsel; and having been sufficiently advised in the premises, hereby GRANTS Plaintiff’s Motion for Final Summary Judgment and DENIES Defendant’s Motion for (Partial) Summary Judgment.
FACTS
This is a breach of contract action. The Insured, Felicia A. Seedorf, was insured under an automobile insurance policy issued by Defendant Geico Indemnity Insurance Company. On or about April 15, 2014, the Insured sustained windshield damage on her 2010 Jeep Liberty. On June 28, 2014, the Insured hired Plaintiff Patriot Glass, LLC (“Patriot”) to replace the windshield. In exchange for the windshield replacement and as a condition for replacing it, the Insured executed an assignment of insurance benefits in favor of Plaintiff who, pursuant to the assignment, replaced the windshield and billed Defendant directly. The submitted invoice to the Defendant was in the amount of $665.75. Defendant paid Plaintiff $300.78 utilizing the limit of liability provision in the insurance contract as the basis for the difference in amount paid to amount invoiced.
The policy provides, in pertinent part:
LOSSES WE WILL PAY
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 policy also contains a provision called “Limit of Liability” that states, 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.
The Plaintiff sought full reimbursement under the policy and this law suit ensued as a result.
ANALYSIS AND FINDINGS
The Plaintiff’s position 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. The Defendant argued that the policy language defining “prevailing competitive price” is clear and unambiguous. As such the Defendant asserts that it has the right to limit its liability under the policy.
The Court finds the Defendant’s argument unpersuasive. It has long been the law in Florida that the insurer, as the writer of the insurance policy, is bound by the language of that policy and should be construed liberally in favor of the insured and strictly construed against the drafter. Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828 (Fla. 1997) [22 Fla. L. Weekly S513a]; See also Gulf Life Ins. Co. v. Nash, 97 So.2d 4, 9-10 (Fla. 1957). The contracts should be phrased so that the average person can clearly understand what he or she is contracting for. The terms should not be obscure so as to defeat the purpose for which a policy is purchased. Weldon v. All American Life Ins. Co., 605 So.2d 911 (Fla. 2d DCA 1992).
The Defendant argued that the term “prevailing competitive price” is defined in the policy as “[t]he price we can secure from a competent and conveniently located repair facility.” However, this Court finds that definition inherently ambiguous. The insured has no way of knowing what that means. Although not binding, the Court agrees with, and finds persuasive, the analysis of Judge Jane Fishman in Auto Glass America, LLC v. Geico, 26 Fla. L. Weekly Supp. 780a (May 8, 2018). Judge Fishman was analyzing the same policy language and stated as follows:
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 it 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.
In addition, this Court finds that the language in the Limit of Liability provision read as a whole is ambiguous as it appears to give freedom to choose but then limits the freedom by an unspecified restriction that is not defined or explained in a quantitative way to the Insured in the policy.
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.
The policy tells the Insured choose whatever place you want, but it’s limited by a price we can secure. The policy does not quantify what that price is or how it could be ascertained. So the Insured is left with trying to discern what this provision limits. An average contracting party would not be able to ascertain what that clause is meant to Limit. The Court finds the provision, and asserted definition, circular, obscure, and unclear.
The Court also finds that even if the policy language were to be interpreted as clear and unambiguous, the Plaintiff is still entitled to summary judgment because it established its prima facie case for breach of contract through the affidavits of Mr. Salinas and Mr. Piercy and demonstrated that each affirmative defense was either legally insufficient or refuted by unrebutted summary judgment evidence.
In support of the the argument, the Plaintiff filed the affidavit of Maximo Salinas, its owner and corporate records custodian, in which Mr. Salinas stated that he has personal knowledge of, among other things, Patriot’s policies and procedures regarding billing, scheduling, accounting, pricing, claims processing and ensuring all invoices are timely submitted to insurance companies. Mr. Salinas also stated that Plaintiff submitted an invoice to Defendant for $665.75 for the replacement of the insured’s windshield and that Defendant only paid $ 300.78. The resulting balance is $364.97.
Plaintiff also filed the affidavit of the technician, Darryl Piearcy, who performed the windshield replacement on this claim on the behalf of Plaintiff. Mr. Piearcy is a certified windshield replacement technician with 23 years of experience performing windshield repairs and replacement in Florida and other states and participates in continuing education courses. Mr. Piearcy stated that he personally witnessed the insured sign the assignment of benefits in this claim.
Mr. Salinas and Mr. Piearcy both 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. Salinas and Mr. Piearcy both cite to the National Auto Glass Specification (NAGS) guidelines which establish general guidelines for auto glass pricing and maintains a database of pricing information based on national surveys identifying common prices for materials that are necessary for windshield installments. In the instant claim, Plaintiff charged an amount equal to the NAGS list price for materials (i.e., 100% of NAGS) and charged the amount of labor hours specified by NAGS. Mr. Salinas and Mr. Piearcy further testified that prior to setting Plaintiff’s prices, Patriot conducted a market survey by contacting various local windshield replacement facilities and automobile dealerships to research what was being charged for windshield replacements in the community.
Once the Plaintiff has met its by establishing its claim, the burden now shifts to the Defendant to establish that the amount sought is limited by the terms of the policy and that there remains a genuine issue of fact. In support of Defendant’s Motion for Summary Judgment, Defendant has filed the affidavit of Susanna Eberling, Defendant’s Continuing Unit Examiner. Ms. Eberling’s affidavit does not identify any methodology as to how the “prevailing competitive price” was determined. Ms. Eberling’s affidavit does not provide any data relating to any prices that are “prevailing” or “competitive.” Additionally, Ms. Eberling is not able to provide any information as to why the repairs done and amount charged in this case should not be considered the prevailing competitive price. The affidavit states, “the price GEICO paid Patriot in this claim, $300.78, is the amount that did not exceed the price GEICO could secure from a competent and conveniently located repair facility.” That is a conclusory statement without factual support. Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA), cert. denied, 365 So.2d 714 (Fla.1978) (plaintiff’s affidavit in opposition to motion for summary judgment was insufficient as a matter of law because it alleged conclusions of law without supporting facts).
Therefore, it is hereby ORDERED AND ADJUDGED that Final Judgment is hereby entered in favor of the Plaintiff, PATRIOT GLASS, LLC, which shall recover from Defendant GEICO INDEMNITY COMPANY the principal sum of $364.97 plus statutory interest for which let execution issue forthwith.
The Plaintiff is the prevailing party and is entitled to an 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.
