27 Fla. L. Weekly Supp. 28a
Online Reference: FLWSUPP 2701JENNInsurance — Automobile — Windshield repair — Discovery — Trade secrets — Trial court erred in ordering insurer to disclose negotiated pricing and program pricing information where information is not relevant to claim of untimely payment — Further, such pricing information is not relevant to issue of whether insurer paid “prevailing competitive price” required by policy, which is defined as price insurer can secure in competitive market, not price insurer can only obtain through non-open-market transaction — Trial court also erred in requiring disclosure of information it determined to be trade secrets without providing safeguards
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. SHAZAM AUTO GLASS, LLC, a/a/o Christine Jennings, Respondent. Circuit Court, 13th Judicial Circuit (Appellate) in and Hillsborough County, Circuit Civil Division. Case No. 18-CA-4341, Division E. L.T. Case No. 17-CC-21125. January 17, 2019. Counsel: Ezequiel Lugo, Banker Lopez Gassler P.A., Tampa, for Petitioner. David M. Caldevilla, De la Parte & Gilbert P.A., Tampa, for Respondent.
QUASHED in part. 44 Fla. L. Weekly D2322c
[Order on appellate attorney’s fees at FLWSUPP 2803JENN]ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
(HOLDER, J.) This case is before the court on Petition for Writ of Certiorari filed May 9, 2018, by State Farm Mutual Automobile Insurance Company, seeking review of an April 25, 2018, and related March 8, 2017, discovery orders of the county court. Respondent Shazam Auto Glass, LLC, filed a response on July 23, 2018, and on July 20, 2018, State Farm filed a reply. The April 25, 2017, order of the county court requires the disclosure of materials alleged to contain trade secrets, is privileged, or is outside the scope of the underlying breach of contract claim. This court has jurisdiction. See C.L. v. Judd, 993 So. 2d 991, 994 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2617b] (orders compelling production of “cat out of the bag” materials generally are reviewed in certiorari); Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2005) [30 Fla. L. Weekly D991c] (order that directs the disclosure of a trade secret creates the potential for irreparable harm and is appropriate for certiorari review). Having reviewed the briefs and related appendices, the court determines 1) that the complaint’s prayer for damages for untimely payment renders the requested information irrelevant, 2) the county court’s conclusion that the documents are trade secrets require that it afford the information certain protection required under the law, and 3) the order fails to provide required safeguards for the information. For these reasons, this court will grant the petition.
State Farm’s insured Christine Jennings owns a 2013 Kia Optima that sustained windshield damage on or about February 28, 2017. She assigned her benefits to Shazam, which replaced the windshield on March 1, 2017. Shazam sent an invoice to State Farm for $984.40. State Farm received the invoice on March 13, 2017. In response to the invoice, State Farm obtained two “bottom line” bids on the claim. They were from Clear View Auto Glass and Pelican Car Care Center. Clear View’s bid was for $590.88; Pelican’s bid was for $266.92 that included “labor, taxes, anything that is necessary.”
After review of the bids, State Farm indicated it would pay the “lesser of the two,” but without going below its “program pricing.” The program pricing is what State Farm would pay any shop to do the work. Based on that decision on May 29, 2017, State Farm paid Shazam $568.67, a figure that was just under the higher of the two bids and significantly higher than the lower bid. Four days later, Shazam sued State Farm for breach of contract. The complaint alleges generally that State Farm failed to pay the bill in full, but its prayer for relief seeks judgment for untimely paid benefits and “unpaid bills,” as well as “nominal damages” for breach of contract.
The relevant policy language is found under its “Limits and Loss Settlement — Comprehensive Coverage and Collision Coverage,” which provides:
1. We have the right to choose to settle with you or the owner of the covered vehicle in one of the following ways:
a. Pay the cost to repair the covered vehicle minus any applicable deductible.1
(1) We have the right to choose one of the following to determine the cost to repair the covered vehicle:
(a) The cost agreed to by both the owner of the covered Vehicle and us;
(b) A bid or repair estimate approved by us; or
(c) A repair estimate that is written based upon or adjusted to:
(i) the prevailing competitive price. . .
Shazam filed an amended motion to compel production of documents that requested 1) Pelican and Clear View’s Offer and Acceptance program applications; 2) the “Offer and Acceptance National Glass Program” terms and conditions agreed to between State Farm and the two bidders; 3) the name of the entity that created State Farm’s “system pricing,” and 4) the basis for calculating the “system pricing” payment by State Farm. Shazam maintained that the basis of State Farm’s payment was relevant to whether State Farm breached the policy because State Farm had relied on such data to determine the reimbursement amount. The county court determined that the information was relevant to the claim. This court disagrees for two reasons. First, the requested information is irrelevant to the timeliness of payment. Second, even if Shazam is claiming that State Farm underpaid the claim the price an insurer must pay is not a fixed figure. Should the alleged underpayment become the basis for the alleged breach, this court questions the relevance or discoverability of the requested information at this time because under the policy there are several approaches the policy affords Shazam to make its case. They include the costs to repair as agreed to by State Farm and the car’s owner, a bid or written estimate approved by State Farm, or a written estimate based upon or adjusted to the prevailing competitive price. None appears to this court to require access to negotiated or program pricing. This court recently determined that “prevailing competitive price” is the price of the repair an insurer can secure in a competitive market from a competent and conveniently located repair facility. It is a question of fact, in the same sense that “fair market value,” “reasonable and necessary,” “usual customary charges,” and “reasonable” are in other contexts. Government Employees Ins. Co. v. Superior Auto Glass of Tampa Bay, Inc., et al., Consolidated Appeal Nos. 16-CA-5106, 16-CA-7959, 16-CA-7963, 16-CA-7041 and 16-CA-8940, Slip Opinion at *8 (Fla. 13th Jud. Cir. Ct. App. Div. March 27, 2018) [26 Fla. L. Weekly Supp. 876a]. It does not allow an insurer to limit its exposure to a lower price it alone could obtain through a non-open-market transaction. Id. Of course, merely irrelevant discovery does not normally give rise to certiorari relief. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 95 (Fla. 1995) [20 Fla. L. Weekly S217a]. Relief is appropriate, however, where, as here, a trade secret is involved. Ameritrust, at 1207.2
In addition to its relevancy determination, the county court determined that items two and three above constituted trade secrets after conducting an in camera inspection. Concluding that Shazam had shown reasonable necessity for disclosure of the information the court ordered State Farm to either produce all the subject documents within 14 days or announce that it would not rely on such records or any other evidence arising from the records. But the order contained no safeguards for the information, and it did not stay enforcement until an agreement could be reached by the parties. That alone requires this court to quash the order. Laser Spine Institute, LLC v. Makanast, 69 So. 3d 1045, 1046 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2077b] (when court orders disclosure of trade secrets, it must take appropriate measures to protect the interests of the trade secret holder, the parties, and the interests of justice); Columbia Hospital Ltd. Partnership v. Hasson, 33 So. 3d 148, 150 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1067a].
Based on the foregoing, it is ORDERED that the orders below are QUASHED. It is FURTHER ORDERED that State Farm’s motion for attorney’s fees related to this action is GRANTED conditioned upon its prevailing in the action below and the county court’s determination that State Farm’s offer of judgment is valid. Shazam’s motion for attorney’s fees is DENIED.
__________________
1There is no deductible for damage to the windshield of a covered vehicle.
2This court’s relevancy determination should not be read to preclude later disclosure if an appropriate pleading makes disclosure relevant or if State Farm attempts to rely on the information, as long as appropriate safeguards are implemented.
