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Case Number: 16-006029-SC
Filing # 42130883 E-Filed 05/31/2016 02:06:26 PM
IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
SMALL CLAIMS
MOBILE AUTO GLASS REPAIR LLC
a/alo, MIGUEL FULLER,
Plaintiff, CASE NO.:
vs.
PROGRESSIVE SELECT INSURANCE COMPANY,
Defendant.
/
STATEMENT OF CLAIM
COMES NOW the Plaintiff, MOBILE AUTO GLASS REPAIR LLC a/a/o MIGUEL
FULLER (hereinafter “Plaintiff’), by and through its undersigned attorney hereby suing the
Defendant, PROGRESSIVE SELECT INSURANCE COMPANY (hereinafter “Defendant”),
alleging as follows:
BREACH OF CONTRACT
1. This is an action for damages that exceeds the sum of One Hundred Dollars and
00/100 ($100.00), but does not exceed the sum of Five Hundred Dollars and 00/100 ($500.00)
exclusive of costs, interest and attorney’s fees.
2. At all times material hereto, Plaintiff was and is a Florida corporation authorized
to do business in Florida. The Plaintiff was assigned the benefits under a comprehensive
automotive policy issued by the Defendant to MIGUEL FULLER. A copy of the assignment is
attached as exhibit A.
3. That at all times material hereto, Defendant was and is a corporation duly licensed
to transact business in the State of Florida and maintained agents for the transaction of its
customary business throughout the state of Florida including Pinellas County, Florida.
PROGRESSIVE SELECT INSURANCE COMPANY, maintains agents, advertises and sell
polices in Pinellas County.
4. Automotive windshield claims are handled completely differently than collision
and comprehensive claims related to physical damage as a result of a collision loss. The
Defendant has contracted with a Third Party Administrator (hereinafter “TPA”) for
administrating automotive windshield claims. The TPA’s business entities are registered with
the Florida Department of Corporations operating under the corporate names of “Safelite
Fullfillment, Inc.”, “Safelite Glass Corp.” and “Safelite Group, Inc.” (hereinafter “Safelite”).
5. A TPA is an organization that processes insurance claims for a separate entity.
This can be viewed as “outsourcing” the administration of the claims processing since the TPA is
***ELECTRONICALLY FILED 05/31/2016 02:06:25 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***performing a task traditionally handled by the company providing the insurance. In the case of
insurance claims, a TPA handles the claims processing for the insurance company. The
insurance company underwrites the risk. The risk of loss remains with the insurance company,
not the TPA.
6. The Defendant has contracted with Safelite to administer, price, and adjust
windshield claims and act as the Defendant’s TPA. Safelite is not only a TPA but an automotive
windshield repair and replacement vendor. The Defendant uses Safelite as its TPA to save
money by spending the least amount possible in paying automotive windshield claims by either
administering the claim or by using Safelite as a vendor to perform the windshield repair or
replacement.
7. With the Defendant using Safelite as a TPA, Safelite is always involved in the
claims process even if Safelite did not perform the repair or replacement. The Defendant, upon
receipt of an invoice will forward the invoice to Safelite who reviews and audits the invoice and
then tells the Defendant the amount to pay. The Defendant automatically sends the invoice to
Safelite for an audit. The price Safelite tells the insurance company to pay is the price Safelite
would have charged had Safelite done the work. The price is not determined by the Defendant.
8. The Defendant by using Safelite as a TPA, unilaterally imposes a finite price it
will pay for the goods and services related to windshield repair or replacements.
9. Venue is proper in Pinellas County, Florida.
10. The Plaintiff is located in Pinellas County, Florida.
11. At all times material hereto, MIGUEL FULLER (hereinafter “Insured”), was
insured under a policy of motor vehicle insurance coverage issued by Defendant, a for profit
corporation. The insurance policy is well known to the Defendant, a copy of which is in
possession of the Defendant.
12. On or about April 9, 2016, the Insured’s 2010 Scion XB covered under
Defendant’s policy number 76968403 sustained damage to its windshield.
13. The Plaintiff submitted a bill to the Defendant and has not been paid in full. This
lawsuit is for Defendant’s failure to pay the full amount owed. The Plaintiff's bill is attached
hereto as Exhibit A.
14. The Plaintiff has performed all conditions precedent to this action or those
conditions have been waived or excused.
15. The Defendant has failed to pay the full amount for the Plaintiff's work on the
aforementioned vehicle despite the contractual obligation to do so.
16. The Plaintiff is the proper party to bring this action by virtue of receiving the
assignment of benefits from the insured. See exhibit A.17. The insured’s automobile insurance contract with the Defendant was in full force
and effect on the date of the loss. A true and correct copy of the policy is in control of the
Defendant.
18. The policy provides coverage for the replacement of windshield damage through
the Insured’s comprehensive and/or collision insurance coverage.
19. Defendant’s refusal to reimburse the Plaintiff for the services provided to the
Insured constitutes a breach of insurance contract that the Defendant holds with the Insured and
now the Plaintiff.
20. The policy complies with Florida statute § 627.7288 as the policy has a zero
deductible as it relates to damages to Insured’s automotive windshield.
21. | Demand was made upon the Defendant to pay the benefits pursuant to the policy
and Florida law, and Plaintiff and the Insured have otherwise complied with all contractual and
statutory conditions precedent to recover.
22. As an assignee of the rights and limitations under the subject insurance policy as
previously referenced, the Plaintiff is entitled to all of the rights and benefits under the policy
that the Insured was entitled to enforce and receive from the Defendant.
23. The Defendant has breached the contract by not paying under the policy language
for automotive windshield goods and services provided pursuant to the insurance contract.
24. The policy of insurance issued by the Defendant to the Plaintiff contains the
following express provision:
Physical Damage Coverages
LIMITS OF LIABILITY
d. In determining the amount necessary to repair damaged property to its pre-
loss physical condition, the amount to be paid by us:
(i) will not exceed the prevailing competitive labor
rates charged in the area where the property is to be
repaired and the cost of repair or replacement parts
or equipment, as reasonably determined by us; and
(ii) will be based on the cost of repair or replacement
parts or equipment which may be new,
reconditioned, remanufactured, or used, including,
but not limited to:
(a) original manufacturer parts or equipment; and
(b) nonoriginal manufacturer parts or equipment.25. The amount of compensation “as reasonably determined by us” the Defendant
pays is not a legitimate, market-price. It is a unilaterally set, finite compensation rate that is paid
under a payment schedule. This payment schedule is used by the Defendant to determine the
price of the goods and services rendered for the windshield replacement. The payment schedule
determined the price of compensation to the hundredth of a cent, in this case $351.16. The
Defendant did not pay the Plaintiff according to a legitimate, market-price. The Defendant paid
according to the payment schedule. The amount paid was not “reasonably determined” by the
defendant.
26. — Further, the Defendant adopts a payment schedule provided by Safelite. Safelite’s
payment schedule is a unilateral set, finite compensation rate based on Safelite’s ability to
perform the windshield replacement for a set certain payment schedule. The amount paid is not
“reasonably determined” by the Defendant.
27. The term of “prevailing competitive labor rates” is an ambiguous term on its face.
The Limits of Liability provision of the insurance policy does not define what “prevailing
competitive labor rates” means and how the “prevailing competitive labor rates” are determined.
28. The express provision of the policy, as specifically plead and quoted in paragraph
24, afforded the Defendant substantial discretion to promote the Defendant’s self-interest and
from this express provision of the insurance contract arises the implied covenant of good faith
and fair dealing, which limits the Defendant’s ability to act capriciously, unreasonably, or in bad
faith in performing its contractual duties relative to the amount owed under the policy for
windshield replacements. The implied covenant of good faith and fair dealing arises from this
express provision, because this provision provides the Defendant with the power to make a
discretionary pricing and payment decision without defined standards. There are no defined
standards in the insurance policy guiding the Defendant with its choice in deciding on a TPA to
use to administer windshield claims.
29. The Defendant’s decision to use Safelite as a TPA breached the implied covenant
of good faith and fair dealing.
30. By only partially paying the Plaintiff for the windshield replacement, the
Defendant materially breached the policy by acting unreasonably and unfairly when it:
a. contracted with Safelite to administer windshield claims
and engaged in price fixing and collusion in the market so
as to manipulate the market price “as reasonably
determined by us” payable under the insurance contract;
b. determining the scope of the replacement, kind and quality
of the product, or repair work with certain vendors in order
to cost-save instead of paying a legitimate, market-place
price is not paying a price “reasonably determined” by the
Defendant;
c. pre-determining the price of the work for windshield
replacements which is lower than a legitimate, market-place price thereby providing an incentive for certain
approved vendors, from which the “reasonably determined”
price is determined, to complete less than quality work and
use less than quality materials in order to increase profit by
paying less compensation for windshield claims.
d. the Defendant’s decision to use Safelite as a TPA ensures
that vendors such as the Plaintiff are unable to submit a
legitimate, market-price because the price “as reasonably
determined by” the Defendant gives the Defendant control
over the scope and price of the windshield replacement.
31. The Defendant further materially breached the contract by failing to pay a
legitimate, market-place price to the Plaintiff as required by the policy of insurance.
32. As a direct result of the Defendant’s breaches of the contract, the Plaintiff was
damaged in the amount of $336.66.
33. Because of the Defendant’s breach of contract, the Plaintiff has required the
services of counsel. Florida Statute § 627.428 provides for the recovery of attorney’s fees
against the Defendant.
WHEREFORE, Plaintiff demands judgment against the Defendant for damages together
with reasonable attorney’s fees, costs, and interest. The Plaintiff demands trial by jury on all
issues so triable.
/s/ John C. Murrow
John C. Murrow, Esq.
Florida Bar No. 0010221
John C, Murrow, P.A.
4856 West Gandy Blvd.
Tampa, FL 33611
Phone: (813) 999-4950
Fax: (813) 999-4955
Email: service-john@johnemurrowlaw.com
Attorney for Plaintiff
Preview
Case Number: 16-006029-SC Filing # 42130883 E-Filed 05/31/2016 02:06:26 PM IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA SMALL CLAIMS MOBILE AUTO GLASS REPAIR LLC a/alo, MIGUEL FULLER, Plaintiff, CASE NO.: vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. / STATEMENT OF CLAIM COMES NOW the Plaintiff, MOBILE AUTO GLASS REPAIR LLC a/a/o MIGUEL FULLER (hereinafter “Plaintiff’), by and through its undersigned attorney hereby suing the Defendant, PROGRESSIVE SELECT INSURANCE COMPANY (hereinafter “Defendant”), alleging as follows: BREACH OF CONTRACT 1. This is an action for damages that exceeds the sum of One Hundred Dollars and 00/100 ($100.00), but does not exceed the sum of Five Hundred Dollars and 00/100 ($500.00) exclusive of costs, interest and attorney’s fees. 2. At all times material hereto, Plaintiff was and is a Florida corporation authorized to do business in Florida. The Plaintiff was assigned the benefits under a comprehensive automotive policy issued by the Defendant to MIGUEL FULLER. A copy of the assignment is attached as exhibit A. 3. That at all times material hereto, Defendant was and is a corporation duly licensed to transact business in the State of Florida and maintained agents for the transaction of its customary business throughout the state of Florida including Pinellas County, Florida. PROGRESSIVE SELECT INSURANCE COMPANY, maintains agents, advertises and sell polices in Pinellas County. 4. Automotive windshield claims are handled completely differently than collision and comprehensive claims related to physical damage as a result of a collision loss. The Defendant has contracted with a Third Party Administrator (hereinafter “TPA”) for administrating automotive windshield claims. The TPA’s business entities are registered with the Florida Department of Corporations operating under the corporate names of “Safelite Fullfillment, Inc.”, “Safelite Glass Corp.” and “Safelite Group, Inc.” (hereinafter “Safelite”). 5. A TPA is an organization that processes insurance claims for a separate entity. This can be viewed as “outsourcing” the administration of the claims processing since the TPA is ***ELECTRONICALLY FILED 05/31/2016 02:06:25 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***performing a task traditionally handled by the company providing the insurance. In the case of insurance claims, a TPA handles the claims processing for the insurance company. The insurance company underwrites the risk. The risk of loss remains with the insurance company, not the TPA. 6. The Defendant has contracted with Safelite to administer, price, and adjust windshield claims and act as the Defendant’s TPA. Safelite is not only a TPA but an automotive windshield repair and replacement vendor. The Defendant uses Safelite as its TPA to save money by spending the least amount possible in paying automotive windshield claims by either administering the claim or by using Safelite as a vendor to perform the windshield repair or replacement. 7. With the Defendant using Safelite as a TPA, Safelite is always involved in the claims process even if Safelite did not perform the repair or replacement. The Defendant, upon receipt of an invoice will forward the invoice to Safelite who reviews and audits the invoice and then tells the Defendant the amount to pay. The Defendant automatically sends the invoice to Safelite for an audit. The price Safelite tells the insurance company to pay is the price Safelite would have charged had Safelite done the work. The price is not determined by the Defendant. 8. The Defendant by using Safelite as a TPA, unilaterally imposes a finite price it will pay for the goods and services related to windshield repair or replacements. 9. Venue is proper in Pinellas County, Florida. 10. The Plaintiff is located in Pinellas County, Florida. 11. At all times material hereto, MIGUEL FULLER (hereinafter “Insured”), was insured under a policy of motor vehicle insurance coverage issued by Defendant, a for profit corporation. The insurance policy is well known to the Defendant, a copy of which is in possession of the Defendant. 12. On or about April 9, 2016, the Insured’s 2010 Scion XB covered under Defendant’s policy number 76968403 sustained damage to its windshield. 13. The Plaintiff submitted a bill to the Defendant and has not been paid in full. This lawsuit is for Defendant’s failure to pay the full amount owed. The Plaintiff's bill is attached hereto as Exhibit A. 14. The Plaintiff has performed all conditions precedent to this action or those conditions have been waived or excused. 15. The Defendant has failed to pay the full amount for the Plaintiff's work on the aforementioned vehicle despite the contractual obligation to do so. 16. The Plaintiff is the proper party to bring this action by virtue of receiving the assignment of benefits from the insured. See exhibit A.17. The insured’s automobile insurance contract with the Defendant was in full force and effect on the date of the loss. A true and correct copy of the policy is in control of the Defendant. 18. The policy provides coverage for the replacement of windshield damage through the Insured’s comprehensive and/or collision insurance coverage. 19. Defendant’s refusal to reimburse the Plaintiff for the services provided to the Insured constitutes a breach of insurance contract that the Defendant holds with the Insured and now the Plaintiff. 20. The policy complies with Florida statute § 627.7288 as the policy has a zero deductible as it relates to damages to Insured’s automotive windshield. 21. | Demand was made upon the Defendant to pay the benefits pursuant to the policy and Florida law, and Plaintiff and the Insured have otherwise complied with all contractual and statutory conditions precedent to recover. 22. As an assignee of the rights and limitations under the subject insurance policy as previously referenced, the Plaintiff is entitled to all of the rights and benefits under the policy that the Insured was entitled to enforce and receive from the Defendant. 23. The Defendant has breached the contract by not paying under the policy language for automotive windshield goods and services provided pursuant to the insurance contract. 24. The policy of insurance issued by the Defendant to the Plaintiff contains the following express provision: Physical Damage Coverages LIMITS OF LIABILITY d. In determining the amount necessary to repair damaged property to its pre- loss physical condition, the amount to be paid by us: (i) will not exceed the prevailing competitive labor rates charged in the area where the property is to be repaired and the cost of repair or replacement parts or equipment, as reasonably determined by us; and (ii) will be based on the cost of repair or replacement parts or equipment which may be new, reconditioned, remanufactured, or used, including, but not limited to: (a) original manufacturer parts or equipment; and (b) nonoriginal manufacturer parts or equipment.25. The amount of compensation “as reasonably determined by us” the Defendant pays is not a legitimate, market-price. It is a unilaterally set, finite compensation rate that is paid under a payment schedule. This payment schedule is used by the Defendant to determine the price of the goods and services rendered for the windshield replacement. The payment schedule determined the price of compensation to the hundredth of a cent, in this case $351.16. The Defendant did not pay the Plaintiff according to a legitimate, market-price. The Defendant paid according to the payment schedule. The amount paid was not “reasonably determined” by the defendant. 26. — Further, the Defendant adopts a payment schedule provided by Safelite. Safelite’s payment schedule is a unilateral set, finite compensation rate based on Safelite’s ability to perform the windshield replacement for a set certain payment schedule. The amount paid is not “reasonably determined” by the Defendant. 27. The term of “prevailing competitive labor rates” is an ambiguous term on its face. The Limits of Liability provision of the insurance policy does not define what “prevailing competitive labor rates” means and how the “prevailing competitive labor rates” are determined. 28. The express provision of the policy, as specifically plead and quoted in paragraph 24, afforded the Defendant substantial discretion to promote the Defendant’s self-interest and from this express provision of the insurance contract arises the implied covenant of good faith and fair dealing, which limits the Defendant’s ability to act capriciously, unreasonably, or in bad faith in performing its contractual duties relative to the amount owed under the policy for windshield replacements. The implied covenant of good faith and fair dealing arises from this express provision, because this provision provides the Defendant with the power to make a discretionary pricing and payment decision without defined standards. There are no defined standards in the insurance policy guiding the Defendant with its choice in deciding on a TPA to use to administer windshield claims. 29. The Defendant’s decision to use Safelite as a TPA breached the implied covenant of good faith and fair dealing. 30. By only partially paying the Plaintiff for the windshield replacement, the Defendant materially breached the policy by acting unreasonably and unfairly when it: a. contracted with Safelite to administer windshield claims and engaged in price fixing and collusion in the market so as to manipulate the market price “as reasonably determined by us” payable under the insurance contract; b. determining the scope of the replacement, kind and quality of the product, or repair work with certain vendors in order to cost-save instead of paying a legitimate, market-place price is not paying a price “reasonably determined” by the Defendant; c. pre-determining the price of the work for windshield replacements which is lower than a legitimate, market-place price thereby providing an incentive for certain approved vendors, from which the “reasonably determined” price is determined, to complete less than quality work and use less than quality materials in order to increase profit by paying less compensation for windshield claims. d. the Defendant’s decision to use Safelite as a TPA ensures that vendors such as the Plaintiff are unable to submit a legitimate, market-price because the price “as reasonably determined by” the Defendant gives the Defendant control over the scope and price of the windshield replacement. 31. The Defendant further materially breached the contract by failing to pay a legitimate, market-place price to the Plaintiff as required by the policy of insurance. 32. As a direct result of the Defendant’s breaches of the contract, the Plaintiff was damaged in the amount of $336.66. 33. Because of the Defendant’s breach of contract, the Plaintiff has required the services of counsel. Florida Statute § 627.428 provides for the recovery of attorney’s fees against the Defendant. WHEREFORE, Plaintiff demands judgment against the Defendant for damages together with reasonable attorney’s fees, costs, and interest. The Plaintiff demands trial by jury on all issues so triable. /s/ John C. Murrow John C. Murrow, Esq. Florida Bar No. 0010221 John C, Murrow, P.A. 4856 West Gandy Blvd. Tampa, FL 33611 Phone: (813) 999-4950 Fax: (813) 999-4955 Email: service-john@johnemurrowlaw.com Attorney for Plaintiff