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Case Number: 15-010960-SC
Filing # 35812238 E-Filed 12/22/2015 11:12:04 AM
IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
SMALL CLAIMS
MOBILE AUTO GLASS REPAIR LLC
a/alo, AMANDA FLOOD,
Plaintiff, CASE NO.:
vs.
PROGRESSIVE SELECT INSURANCE COMPANY,
Defendant.
/
STATEMENT OF CLAIM
COMES NOW the Plaintiff, MOBILE AUTO GLASS REPAIR, LLC a/a/o , AMANDA
FLOOD (hereinafter “Plaintiff’), by and through its undersigned counsel submitting its
Statement of Claim against the Defendant, PROGRESSIVE SELECT INSURANCE
COMPANY (hereinafter “Defendant”), stating as follows:
1. This is an action for damages that exceeds the sum of One Dollar and 00/100
($1.00), 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 Limited Liability
Company duly licensed to transact business in the State of Florida with its primary place of
business in Pinellas County, Florida.
3. At all times material hereto, Defendant was and is a company 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. The
Defendant maintains agents, advertises and sells automobile insurance policies in Pinellas
County, Florida.
4. Venue is proper in Pinellas County, Florida.
5. AMANDA FLOOD, (hereinafter “Insured”), was and is a natural person, and the
Florida Auto Policy of insurance involved herein was issued by the Defendant to the Insured in
the state of Florida.
6. During the policy term, the Insured’s vehicle sustained damage to its windshield.
***ELECTRONICALLY FILED 12/22/2015 11:12:03 AM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***7. As a direct and proximate result of the windshield damage sustained to the
Insured’s vehicle, the Insured incurred expenses for the goods and services provided by the
Plaintiff for the replacement of the vehicle’s windshield.
8. The Defendant issued a policy of insurance which provides for the replacement of
the windshield to the Insured’s vehicle as provided under the Insured’s comprehensive insurance
coverage. An exemplar of the insurance policy is attached as Exhibit A.
9. The attached policy provisions were in full force and effect on the date the
damages to the Insured’s windshield occurred and provided coverage for the replacement of the
windshield sustained by the insured’s vehicle. The damage occurred on or about August 18,
2015.
10. Within a reasonable time after the loss, the Defendant was notified of the loss
sustained, provided with all details surrounding the loss, that Plaintiff was selected by the
Insured to replace the Insured’s vehicle’s windshield, and that the Insured executed an
assignment of benefits in favor of the Plaintiff. Thereafter, the Plaintiff replaced the Insured’s
windshield consistent with the terms of the Defendant’s insurance policy. A copy of the invoice
and assignment of benefits provided to the Defendant is attached as Exhibit B. The Plaintiff
billed the Defendant on August 26, 2015. The Defendant’s Third Party Administrator
(hereinafter “TPA”) partially paid the bill on September 10, 2015. See Exhibit C.
11. The Plaintiff has performed all conditions precedent to this action to recover
benefits for the automotive windshield replacement pursuant to the insurance contract or those
conditions have been waived or excused.
COUNT I- BREACH OF CONTRACT
12. The allegations of Paragraphs 1 through 11 are restated herein as if specifically
alleged.
13. A valid contract exists between the Plaintiff and the Defendant. Coverage is not
in dispute since the Plaintiff was partially paid by the Defendant for the goods and services
provided.
14. The Plaintiff as assignee of the named Insured under the contract of insurance has
standing to bring this action on the contract as the real party in interest under Florida law.
15. The policy of insurance issued by the Defendant to the Insured contains the
following express provision:
PART IV —- DAMAGE TO VEHICLE
1. The limit of liability for loss to a covered auto, non-owned
auto, or custom parts or equipment is the lowest of:a. the actual cash value of the stolen or damaged property at the
time of the loss reduced by the applicable deductible;
b. the amount necessary to replace the stolen or damaged
property reduced by the applicable deductible;
c. the amount necessary to repair the damaged property to its
pre-loss physical condition reduced by the applicable
deductible; or
d. the Stated Amount Shown on the declarations page for that
covered auto;
2. Payments for loss to a covered auto, non-owned auto, or
custom parts or equipment are subject to the following
provisions:
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 property is to be
repaired and the cost of repair or replacement parts
and equipment, as reasonably determined by us;
and
(ii) will be based on the cost of repair or replacement
parts and 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.
(See “PART IV — DAMAGE TO VEHICLE” and the “LIMITS OF
LIABILITY” provisions on pages 23 and 24 of Exhibit A)
16. By partially paying the Plaintiff for the windshield replacement, the Defendant
breached the “LIMITS OF LIABILITY” provision of the contract when it:
a. Failed to pay for the windshield replacement at an amount
necessary to replace the loss.b. Failed to pay a prevailing competitive labor rate in
accordance with the “LIMITS OF LIABILITY” provision
as written.
Cc. Failed to actually conduct the proper investigation and take
the necessary steps to determine the prevailing competitive
labor rate.
d. Failed to reasonably determine the cost for goods and
services rendered for the replacement.
17. As a direct result of the Defendant’s breaches of contract the plaintiff was
damaged in the amount of $277.11.
18. Because of the Defendant’s breach of contract, the Plaintiff has become obligated
to retain the services of counsel. F.S. §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. Plaintiff demands trial by jury on all issues
so triable.
COUNT Il - BREACH OF IMPLIED C ANT OF
GOOD FAITH AND FAIR DE.
19. The allegations of Paragraphs 1 through 18 are restated herein as if specifically
alleged.
20. The Defendant has contracted with a third party administrator (“TPA”) for
administrating and adjusting their windshield claims.
21. The TPA has contracted with the Defendant to administer, price, adjust, determine
the price paid and reimburse windshield claims on behalf of the Defendant.
22. In the insurance policy at issue, the Defendant is given unlimited discretion on
how it reasonably determines the amount necessary for windshield repairs and replacements.
Also in the insurance policy at issue, the Defendant is given unlimited discretion regarding
whom or whatever entity it chooses to hire to use as a TPA. The Defendant has used its
discretion unreasonably.
23. In the valid contract between the Plaintiff and Defendant, there is an implied
promise of good faith and fair dealing.24. There exists a duty that neither the Plaintiff nor the Defendant will do anything to
unfairly interfere with the right of the other party to the contract to receive the contract’s
benefits.
25. The Defendant violated the duty to act fairly and in good faith under “PART IV —
DAMAGE TO VEHICLE” and the “LIMITS OF LIABILITY” provisions therein:
a.
f.
26. Because of the Defendant’s Breach of Implied Covenant of Good Faith and Fair
Dealing, the Plaintiff has become obligated to retain the services of counsel. F.S. §627.428
When the Plaintiff and Defendant entered into a valid
contract;
When the Plaintiff did all, or substantially all, of the things
that the contract required it to do, or the Plaintiff was
excused from having to do those things;
All conditions required for the Defendant’s performance
had occurred;
The Defendant’s methodology of how it determines the
amount necessary to replace the windshield and the
Defendant’s conduct of contracting with a TPA to
administer, price, adjust and determine the amount
necessary to replace the windshield unfairly interfered with
the Plaintiff's receipt of the insurance contract’s benefits;
Defendant’s conduct did not comport with the Plaintiffs
reasonable contractual expectations under “PART IV —
DAMAGE TO VEHICLE” and the “Limit of Liability”
provisions of the insurance contract; and
The Plaintiff was harmed $277.11 by Defendant’s conduct.
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. Plaintiff demands trial by jury on all issues
so triable.
Respectfully submitted,
/s/ John C. Murrow
John C. Murrow, Esq.
Florida Bar No.: 0010221
JOHN C. MURROW, P.A.
4856 W. Gandy Blvd.
Tampa, FL 33611
Phone: 813-999-4950
Fax: 813-999-4955
Email: service-john@johncmurrowlaw.com
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Case Number: 15-010960-SC Filing # 35812238 E-Filed 12/22/2015 11:12:04 AM IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA SMALL CLAIMS MOBILE AUTO GLASS REPAIR LLC a/alo, AMANDA FLOOD, Plaintiff, CASE NO.: vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. / STATEMENT OF CLAIM COMES NOW the Plaintiff, MOBILE AUTO GLASS REPAIR, LLC a/a/o , AMANDA FLOOD (hereinafter “Plaintiff’), by and through its undersigned counsel submitting its Statement of Claim against the Defendant, PROGRESSIVE SELECT INSURANCE COMPANY (hereinafter “Defendant”), stating as follows: 1. This is an action for damages that exceeds the sum of One Dollar and 00/100 ($1.00), 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 Limited Liability Company duly licensed to transact business in the State of Florida with its primary place of business in Pinellas County, Florida. 3. At all times material hereto, Defendant was and is a company 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. The Defendant maintains agents, advertises and sells automobile insurance policies in Pinellas County, Florida. 4. Venue is proper in Pinellas County, Florida. 5. AMANDA FLOOD, (hereinafter “Insured”), was and is a natural person, and the Florida Auto Policy of insurance involved herein was issued by the Defendant to the Insured in the state of Florida. 6. During the policy term, the Insured’s vehicle sustained damage to its windshield. ***ELECTRONICALLY FILED 12/22/2015 11:12:03 AM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***7. As a direct and proximate result of the windshield damage sustained to the Insured’s vehicle, the Insured incurred expenses for the goods and services provided by the Plaintiff for the replacement of the vehicle’s windshield. 8. The Defendant issued a policy of insurance which provides for the replacement of the windshield to the Insured’s vehicle as provided under the Insured’s comprehensive insurance coverage. An exemplar of the insurance policy is attached as Exhibit A. 9. The attached policy provisions were in full force and effect on the date the damages to the Insured’s windshield occurred and provided coverage for the replacement of the windshield sustained by the insured’s vehicle. The damage occurred on or about August 18, 2015. 10. Within a reasonable time after the loss, the Defendant was notified of the loss sustained, provided with all details surrounding the loss, that Plaintiff was selected by the Insured to replace the Insured’s vehicle’s windshield, and that the Insured executed an assignment of benefits in favor of the Plaintiff. Thereafter, the Plaintiff replaced the Insured’s windshield consistent with the terms of the Defendant’s insurance policy. A copy of the invoice and assignment of benefits provided to the Defendant is attached as Exhibit B. The Plaintiff billed the Defendant on August 26, 2015. The Defendant’s Third Party Administrator (hereinafter “TPA”) partially paid the bill on September 10, 2015. See Exhibit C. 11. The Plaintiff has performed all conditions precedent to this action to recover benefits for the automotive windshield replacement pursuant to the insurance contract or those conditions have been waived or excused. COUNT I- BREACH OF CONTRACT 12. The allegations of Paragraphs 1 through 11 are restated herein as if specifically alleged. 13. A valid contract exists between the Plaintiff and the Defendant. Coverage is not in dispute since the Plaintiff was partially paid by the Defendant for the goods and services provided. 14. The Plaintiff as assignee of the named Insured under the contract of insurance has standing to bring this action on the contract as the real party in interest under Florida law. 15. The policy of insurance issued by the Defendant to the Insured contains the following express provision: PART IV —- DAMAGE TO VEHICLE 1. The limit of liability for loss to a covered auto, non-owned auto, or custom parts or equipment is the lowest of:a. the actual cash value of the stolen or damaged property at the time of the loss reduced by the applicable deductible; b. the amount necessary to replace the stolen or damaged property reduced by the applicable deductible; c. the amount necessary to repair the damaged property to its pre-loss physical condition reduced by the applicable deductible; or d. the Stated Amount Shown on the declarations page for that covered auto; 2. Payments for loss to a covered auto, non-owned auto, or custom parts or equipment are subject to the following provisions: 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 property is to be repaired and the cost of repair or replacement parts and equipment, as reasonably determined by us; and (ii) will be based on the cost of repair or replacement parts and 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. (See “PART IV — DAMAGE TO VEHICLE” and the “LIMITS OF LIABILITY” provisions on pages 23 and 24 of Exhibit A) 16. By partially paying the Plaintiff for the windshield replacement, the Defendant breached the “LIMITS OF LIABILITY” provision of the contract when it: a. Failed to pay for the windshield replacement at an amount necessary to replace the loss.b. Failed to pay a prevailing competitive labor rate in accordance with the “LIMITS OF LIABILITY” provision as written. Cc. Failed to actually conduct the proper investigation and take the necessary steps to determine the prevailing competitive labor rate. d. Failed to reasonably determine the cost for goods and services rendered for the replacement. 17. As a direct result of the Defendant’s breaches of contract the plaintiff was damaged in the amount of $277.11. 18. Because of the Defendant’s breach of contract, the Plaintiff has become obligated to retain the services of counsel. F.S. §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. Plaintiff demands trial by jury on all issues so triable. COUNT Il - BREACH OF IMPLIED C ANT OF GOOD FAITH AND FAIR DE. 19. The allegations of Paragraphs 1 through 18 are restated herein as if specifically alleged. 20. The Defendant has contracted with a third party administrator (“TPA”) for administrating and adjusting their windshield claims. 21. The TPA has contracted with the Defendant to administer, price, adjust, determine the price paid and reimburse windshield claims on behalf of the Defendant. 22. In the insurance policy at issue, the Defendant is given unlimited discretion on how it reasonably determines the amount necessary for windshield repairs and replacements. Also in the insurance policy at issue, the Defendant is given unlimited discretion regarding whom or whatever entity it chooses to hire to use as a TPA. The Defendant has used its discretion unreasonably. 23. In the valid contract between the Plaintiff and Defendant, there is an implied promise of good faith and fair dealing.24. There exists a duty that neither the Plaintiff nor the Defendant will do anything to unfairly interfere with the right of the other party to the contract to receive the contract’s benefits. 25. The Defendant violated the duty to act fairly and in good faith under “PART IV — DAMAGE TO VEHICLE” and the “LIMITS OF LIABILITY” provisions therein: a. f. 26. Because of the Defendant’s Breach of Implied Covenant of Good Faith and Fair Dealing, the Plaintiff has become obligated to retain the services of counsel. F.S. §627.428 When the Plaintiff and Defendant entered into a valid contract; When the Plaintiff did all, or substantially all, of the things that the contract required it to do, or the Plaintiff was excused from having to do those things; All conditions required for the Defendant’s performance had occurred; The Defendant’s methodology of how it determines the amount necessary to replace the windshield and the Defendant’s conduct of contracting with a TPA to administer, price, adjust and determine the amount necessary to replace the windshield unfairly interfered with the Plaintiff's receipt of the insurance contract’s benefits; Defendant’s conduct did not comport with the Plaintiffs reasonable contractual expectations under “PART IV — DAMAGE TO VEHICLE” and the “Limit of Liability” provisions of the insurance contract; and The Plaintiff was harmed $277.11 by Defendant’s conduct. 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. Plaintiff demands trial by jury on all issues so triable. Respectfully submitted, /s/ John C. Murrow John C. Murrow, Esq. Florida Bar No.: 0010221 JOHN C. MURROW, P.A. 4856 W. Gandy Blvd. Tampa, FL 33611 Phone: 813-999-4950 Fax: 813-999-4955 Email: service-john@johncmurrowlaw.com