Paris v. Progressive Am. Ins. Co.

• Decision Date: 27 August 2021
• Docket Number: CASE NO. 19-21761-CIV-DIMITROULEAS
• Citation: 558 F.Supp.3d 1245
• Parties: Michael PARIS, as Personal Representative of the Estate of Henry Paris, Jr., deceased, Christie Hegel, and Rolando Hernandez, individually and on behalf of all others similarly situated, Plaintiffs, v. PROGRESSIVE AMERICAN INSURANCE COMPANY and Progressive Select Insurance Company, Defendants.
• Court: U.S. District Court — Southern District of Florida

558 F.Supp.3d 1245

Michael PARIS, as Personal Representative of the Estate of Henry Paris, Jr., deceased, Christie Hegel, and Rolando Hernandez, individually and on behalf of all others similarly situated, Plaintiffs,

v.PROGRESSIVE AMERICAN INSURANCE COMPANY and Progressive Select Insurance Company, Defendants.

CASE NO. 19-21761-CIV-DIMITROULEAS

United States District Court, S.D. Florida.

Signed August 27, 2021

Entered August 31, 2021

Amy Lynn Judkins, Jacob Lawrence Phillips, Edmund Alonso Normand, Normand PLLC, Orlando, FL, Andrew John Shamis, Mariam Grigorian, Shamis & Gentile P.A., Rachel N. Dapeer, Dapeer Law, P.A., Miami, FL, Christopher J. Lynch, Christopher J. Lynch, P.A., Coral Gables, FL, Jason Henry Alperstein, Jeffrey Miles Ostrow, Jonathan Marc Streisfeld, Joshua Robert Levine, Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, FL, Scott Adam Edelsberg, Edelsberg Law PA, Aventura, FL, for Plaintiff Michael Paris.

Amy Lynn Judkins, Jacob Lawrence Phillips, Edmund Alonso Normand, Normand PLLC, Orlando, FL, Christopher J. Lynch, Christopher J. Lynch, P.A., Coral Gables, FL, Jason Henry Alperstein, Joshua Robert Levine, Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, FL, Mariam Grigorian, Shamis, Gentile, P.A., Miami, FL, for Plaintiff Christie Hegel.

Amy Lynn Judkins, Jacob Lawrence Phillips, Normand PLLC, Orlando, FL, Jason Henry Alperstein, Joshua Robert Levine, Kopelowitz Ostrow Ferguson Weiselberg Gilbert Fort Lauderdale, FL, Mariam Grigorian, Shamis, Gentile, P.A., Miami, FL, Christopher J. Lynch, Christopher J. Lynch, P.A., Coral Gables, FL, for Plaintiff Rolando Hernandez.

Bryan Thomas West, Marcy Levine Aldrich, Akerman LLP, Miami, FL, Kevin M. Young, Pro Hac Vice, Allison R. Burke, Pro Hac Vice, Benjamin C. Sasse, Pro Hac Vice, Courtney E.S. Mendelsohn, Pro Hac Vice, Jennifer L. Mesko, Pro Hac Vice, Karl A. Bekeny, Pro Hac Vice, Tucker Ellis LLP, Cleveland, OH, for Defendant Progressive American Insurance Company.

Bryan Thomas West, Akerman LLP, Miami, FL, Kevin M. Young, Pro Hac Vice, Allison R. Burke, Pro Hac Vice, Benjamin C. Sasse, Pro Hac Vice, Courtney E.S. Mendelsohn, Pro Hac Vice, Jennifer L. Mesko, Pro Hac Vice, Karl A. Bekeny, Pro Hac Vice, Tucker Ellis LLP, Cleveland, OH, for Defendant Progressive Select Insurance Company.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

WILLIAM P. DIMITROULEAS, United States District Judge

THIS MATTER comes before the Court on Defendants Progressive American Insurance Company ("Progressive American") and Progressive Select Insurance Company ("Progressive Select") (collectively "Defendants" or "Progressive")’s Motion for Summary Judgment [DE 171] ("Progressive's Motion") and Plaintiffs Christie Hegel ("Hegel") Rolando Hernandez ("Hernandez"), and Michael Paris ("Paris")’s Motion for Summary Judgment on Liability and Measure of Damages [DE 179] ("Plaintiffs’ Motion"). The Court has reviewed Progressive's Motion and Plaintiffs’ Motion, the Responses [DE 201, 193] and Replies [DE 215, 218] thereto, the statements of undisputed material facts [DE 172, 181, 194, 199, 213], the Notices of Supplemental Authority [DE 225, 230, 235],¹ and the Parties’ oral arguments at the March 26, 2021 hearing held on this matter. The Court is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiffs Michael Paris ("Paris"), Christine Hegel ("Hegel"), and Rolando Hernandez ("Hernandez") (collectively "Plaintiffs") filed this class action against Defendants Progressive American Insurance Company ("Progressive American") and Progressive Select Insurance Company ("Progressive Select") (collectively "Defendants" or "Progressive") for purportedly systemically underpaying Plaintiffs in settling their total loss insurance claims. The Court previously certified this matter for class treatment. Now, Plaintiffs and Defendants both move for summary judgment.

During the relevant time period, Plaintiffs, and similarly situated insureds, possessed automobile insurance coverage from Progressive under insurance policies (the "Policy") with materially similar provisions.² PSMF ¶ 5 [DE 181]; DRSMF ¶ 5 [DE 194].³ In the relevant portion of the Policy, Part IV, the Policy provides coverage for "sudden, direct, and accidental loss to a covered auto...." DSMF ¶ 39 [DE 172]; PRSMF ¶ 39 [DE 199]. This coverage is limited by the relevant limit of liability, which the Policy states 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; ...." DSMF ¶ 39; PRSMF ¶ 39. The Policy specifies that the "actual cash value is determined by the market value, age, and condition of the vehicle at the time the loss occurs." DSMF ¶ 40; PRSMF ¶ 40.

When a vehicle insured by Progressive is involved in an accident and the cost to repair the covered auto is greater than its pre-accident value, less estimated net salvage proceeds, Progressive deems the vehicle a "total loss". PSMF ¶ 18; DRSMF ¶ 18. Plaintiffs in this matter were insured under Progressive Policies when they or their vehicles were involved in automobile accidents. DSMF ¶¶ 1, 3, 12, 14, 22, 25. Progressive determined that each of the vehicles involved in the accidents were total losses. DSMF ¶¶ 4, 15, 27. In evaluating Plaintiff Paris's claim, Progressive determined the base value of the vehicle to be $6,324.94; Progressive then subtracted a $127.26 condition adjustment, added $421.86 in sales tax, subtracted a $500 deductible and issued a payment of $6,149.54. PSMF ¶ 42, 43, DRSMF ¶ 42, 43. In settling Plaintiff Hegel's claim, Progressive determined the base value of the vehicle to be $ 33,080.96; Progressive then added a $320 adjustment, added $156.48 in sales tax, subtracted a $500 deductible and calculated a final total settlement amount of $33,057.44. PSMF ¶¶ 48, 49; DRSMF ¶¶ 48, 49. In settling Plaintiff Hernandez's claim, Progressive determined the based value of the vehicle to be $40,960.08; Progressive then added a $40.65 condition adjustment, added a $400.00 after-market parts adjustment, added $142.56 in sales tax, subtracted a $500.00 deductible and calculated a total settlement amount of $41,043.29. PSMF ¶¶ 59, 60; DRSMF ¶¶ 59, 60.

Defendants do not pay full sales tax for all insureds on the value of the covered auto and do not pay any title or transfer fees as part of total loss settlements. As to sales tax, Defendants pay different amounts based on whether the vehicle is owned or leased and whether the vehicle owner retains salvage. DSMF ¶ 41–44; PRSMF ¶ 41–44. If the vehicle is owned, the Defendants pay a full 6% sales tax (plus local surtax) on the adjusted value of the total loss vehicle as part of the total loss settlement. DSMF ¶ 42; PRSMF ¶ 42. If the vehicle is leased, the Defendants pay only the sales tax incurred by the lessee through the lease up through the time of loss. DSMF ¶ 43; PRSMF ¶ 43. If the insured retains the salvaged vehicle, Defendants pay no sales tax. DSMF ¶ 44; PRSMF ¶ 44. Progressive does not pay a transfer fee on any vehicle as part of the total loss settlement, regardless of it is owned or leased. DSMF ¶ 45; PRSMF ¶ 45.

According to Plaintiffs, Defendants’ failure to pay title and transfer fees and the full 6% sales tax as part of the ACV is a violation of the Policy. As such, Plaintiffs contend that Plaintiffs, and every class member, are owed a uniform title and transfer fees of $78.95 and the full 6% sales tax (plus local surtax) on the adjusted value of the total loss vehicle.

II. STANDARD OF REVIEW

Under Rule 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears "the stringent burden of establishing the absence of a genuine issue of material fact." Sauve v. Lamberti , 597 F. Supp. 2d 1312, 1315 (S.D. Fla. 2008) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).

"A fact is material for the purposes of summary judgment only if it might affect the outcome of the suit under the governing law." Kerr v. McDonald's Corp. , 427 F.3d 947, 951 (11th Cir. 2005) (internal quotations omitted). Furthermore, "[a]n issue [of material fact] is not ‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’ or ‘not significantly probative.’ " Flamingo S. Beach I Condo. Ass'n, Inc. v. Selective Ins. Co. of Southeast , 492 F. App'x 16, 26 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment; there must be evidence from which a jury could reasonably find for the non-moving party." Id. at 26-27 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ). Accordingly, if the moving party shows "that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party" then "it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Rich v. Sec'y, Fla. Dept. of Corr. , 716 F.3d 525, 530 (11th Cir. 2013) (citation omitted).

"When the only question a court must decide is a question of law, summary judgment may be granted." Saregama India Ltd. v. Mosley , 635 F.3d 1284, 1290 (11th Cir. 2011). "Contract and statutory interpretation are both questions of law appropriately decided on summary judgment." Bastian v. United Servs. Auto. Ass'n , 150 F. Supp. 3d 1284, 1288 (M.D. Fla. 2015).

III. DISCUSSION

Plaintiffs contend that Defendants have breached the Policy by failing to pay title and...