Volume 27

27 Fla. L. Weekly Supp. 976a

Online Reference: FLWSUPP 2610CHAVInsurance — Personal injury protection — Provider’s motion for leave to file amended reply which would interject new and inconsistent theory of recovery over five years into litigation, sought by provider after defendant had prevailed before the Florida Supreme Court on the sole issue pled and litigated in the case, is denied — Motion to strike or exclude unpled issues is granted

27 Fla. L. Weekly Supp. 191a

Online Reference: FLWSUPP 2702BURGInsurance — Personal injury protection — Pleadings make clear that PIP case solely involved issue decided by Florida Supreme Court decision in Orthopedic Specialists regarding sufficiency of insurer’s policy language to elect use of statutory fee schedules for reimbursement of PIP benefits — Motion to strike or exclude deductible issue which was raised by medical provider only after appellate case was decided adversely to provider’s position is granted

27 Fla. L. Weekly Supp. 1037b

Online Reference: FLWSUPP 2712FEIJInsurance — Personal injury protection — Cancellation of policy — Notice — Although insurer represented throughout discovery that one-page document was entire certificate of mailing of notice of cancellation of policy, when actual certificate was more than 300 pages long, and insurer destroyed complete document during litigation, motion to strike insurer’s pleadings is denied — Trial court is reluctant to find that destruction was malicious — Even if destruction were inadvertent, document was relevant evidence material to insured’s ability to counter insurer’s cancellation defense, and insured was prejudiced by its destruction — Certificate of mailing is stricken

27 Fla. L. Weekly Supp. 530a

Online Reference: FLWSUPP 2706NADEInsurance — Property — Bad faith claim — Damages — Partial summary judgment is entered in favor of insurer in action alleging bad faith handling of property insurance claim for damages based on public adjuster fees, interest on belated settlement payment issued in underlying breach of contract action and loss of enjoyment and use of property

27 Fla. L. Weekly Supp. 96b

Online Reference: FLWSUPP 2701JUSTInsurance — Automobile — Windshield repair — Insurer has burden of proving that it paid “prevailing competitive price” and that repair shop’s invoiced price exceeds “prevailing competitive price” at time of loss

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

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

27 Fla. L. Weekly Supp. 560a

Online Reference: FLWSUPP 2706PETRInsurance — Automobile — Windshield replacement — Discovery — Depositions — If insurer refuses to produce corporate representative able and willing to testify meaningfully about means of determining reimbursement for windshield replacement, it will be precluded from presenting evidence as to what it perceives to be “prevailing competitive price” — Insurer must produce corporate representative to testify concerning range of prices charged in geographic area — Documents — As to discovery requests to which insurer claims trade secret and attorney-client privileges, insurer is ordered to deliver materials for in camera inspection to determine applicability of privileges

27 Fla. L. Weekly Supp. 327b

Online Reference: FLWSUPP 2703WOMAInsurance — Automobile — Windshield repair — Declaratory judgments — Plaintiff has stated cause of action for declaratory relief in complaint seeking interpretation of term “cost to repair or replace” in policy and declarations that appraisal provision in policy is not applicable to claim for windshield repair, that appraisal in context of claim violates prohibitive cost doctrine and that insurer failed to select disinterested appraiser — Motion to dismiss and motion to compel appraisal denied, as case presents issues of contract interpretation, coverage and standing that are beyond determination of damages — Windshield replacement and repair is not contemplated by appraisal provision requiring appraiser to determine actual cash value and amount of loss, which is not relevant to cost to repair windshield

27 Fla. L. Weekly Supp. 1043b

Online Reference: FLWSUPP 2712DAVIInsurance — 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