Volume 26

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

AUTO GLASS AMERICA LLC (a/a/o Leslie Regan), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant.

26 Fla. L. Weekly Supp. 420a

Online Reference: FLWSUPP 2605VILLInsurance — Automobile — Windshield repair — Where insurer could not explain what “prevailing competitive labor rates” means as used in limit of liability clause of insurance policy, which provides that payments for repairs will not exceed prevailing competitive labor rates charged in area where property is to be repaired as reasonably determined by insurer, and insurer claimed that information about means utilized by insurer to determine what price satisfied that clause was proprietary, insurer has failed to prove limitation of liability defense and is foreclosed from disputing plaintiff’s motion for summary disposition as to ambiguity of clause and whether insurer properly reduced bill pursuant to clause

26 Fla. L. Weekly Supp. 196a

Online Reference: FLWSUPP 2603PARRTorts — Collateral estoppel — Res judicata — Action against insurance agent and agent handling personal and business affairs of driver whose negligent conduct caused accident in which plaintiffs were severely and permanently injured, alleging that agents failed to secure excess liability policy that would have covered accident — For purpose of addressing collateral estoppel and res judicata claims on motion to dismiss, court may take judicial notice of contents of court files in prior proceedings that are referenced in complaint — Declaratory judgment case between insurer and driver, in which excess liability coverage was determined to be in effect, does not have collateral estoppel or res judicata effect on present case between injured persons and agents where agents were acting on behalf of driver when they failed to secure coverage and, therefore, were not in privity with or virtually represented by insurer in that prior case — No merit to argument that agents were party to declaratory judgment case by virtue of third-party complaint brought by driver against agents where third-party complaint was abated and never resolved on merits — Plaintiffs are required to file amended complaint separating each of their putative individual claims against agents from their putative assigned claim resulting from settlement with driver

26 Fla. L. Weekly Supp. 627a

Online Reference: FLWSUPP 2608CROCInsurance — Homeowners — Assignment — Validity — Assignment of benefits was not invalid under state law requirements regarding alienation of homestead property, as the exemption for repairs to the property contained in Article I, Section 4 of Constitution applied — Contract between plaintiff/assignee and insured was not invalid due to absence of a fixed price — So long as there is any consideration in support of assignment the assignment is valid — Agreement that contractor/assignee would accept partial payment from insureds and then seek the balance from the insurer was sufficient consideration — Accord and satisfaction — Assignee’s claim not barred by insurer’s tender of payment to insureds — Once assignment was made, assignee stood in shoes of insureds and was the only entity entitled to insurance benefits for the claim — Summary judgment denied

26 Fla. L. Weekly Supp. 460a

Online Reference: FLWSUPP 2606MARQNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 129aInsurance — Personal injury protection — Evidence supported denial of insurer’s summary judgment on affirmative defense of accord and satisfaction — Summary judgment in favor of provider on issue of reasonableness of charges was improper where there were genuine issues of material fact

26 Fla. L. Weekly Supp. 342a

Online Reference: FLWSUPP 2605GPERInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Where insurer sent check for partial payment of claim with explanation of benefits that made no reference to payment being tendered with intent to settle dispute or that those were terms for cashing check, genuine issue of fact regarding parties’ intent to settle precluded entry of summary judgment — Reversed and remanded