William S. v. Progressive Select Ins. Co.
| Decision Date | 30 August 2021 |
| Docket Number | CASE NO. 19-21760-CIV-DIMITROULEAS |
| Citation | 558 F.Supp.3d 1258 |
| Parties | William SOUTH, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Alec Huff Schultz, Hilgers Graben PLLC, Miami, FL, Carly Abramson Kligler, Hilgers Graben PLLC, West Palm Beach, FL, Casim Adam Neff, Neff Insurance Law, PLLC, Scott Jeeves, Jeeves Law Group, P.A., Saint Petersburg, FL, Craig Evan Rothburd, Craig E. Rothburd, P.A., Tampa, FL, Edward Herbert Zebersky, Mark S. Fistos, Zebersky Payne Shaw Lewenz LLC, Roger L. Mandel, Pro Hac Vice, Jeeves Mandel Law Group, Fort Worth, TX, Stephen B. Murray, Jr., Murray Law Firm, New Orleans, LA, for Plaintiff.
Irene Bassel Frick, Jason L. Margolin, Akerman Senterfitt, Tampa, FL, Marcy Levine Aldrich, Bryan Thomas West, Akerman LLP, Miami, FL, James Matthew Brigman, Pro Hac Vice, Jeffrey S. Cashdan, Pro Hac Vice, Julia C. Barrett, Pro Hac Vice, Zachary A. McEntyre, Pro Hac Vice, King & Spalding LLP, Atlanta, GA, Karl A. Bekeny, Pro Hac Vice, Tucker Ellis LLP, Cleveland, OH, for Defendant.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court on Defendant Progressive Select Insurance Company ("Progressive")’s Motion for Summary Judgment [DE 107] ("Progressive's Motion") and Plaintiff William South and the Class’ Motion for Partial Summary Judgment on Liability and Measure of Damages [DE 127] ("Plaintiff's Motion"). The Court has reviewed Progressive's Motion and Plaintiff's Motion, the Responses [DE 125, 150] Replies [DE 140, 167], Sur-Reply [DE 182], the statements of undisputed material facts [DE 108, 168, 170, 174, 175, 186], and the Notices of Supplemental Authority [DE 146, 165].1 The Court is otherwise fully advised in the premises.
Plaintiff William South ("Plaintiff" or "South") alleges Defendant Progressive Select Insurance Company ("Progressive" or "Defendant") underpaid Plaintiff and each of the class members when settling their claims under their insurance policy with Progressive (the "Policy"). Plaintiff and the class members possessed coverage under insurance policies in which the relevant Policy provisions were materially the same. PSMF ¶ 2; DSMF ¶ 2. According to Plaintiff, Defendant was required to pay insureds the actual cash value ("ACV") for the covered vehicles in the event of a "total loss" under the Policy and Florida law.2
The Policy provides that Progressive will "pay for sudden, direct, and accidental loss to a ... covered auto". DSMF ¶ 3, PRSMF ¶ 3. Progressive may "pay for the loss in money" or "repair or replace the damaged ... property." Policy 30, [DE 108-2]. The payment due under the Policy is limited to the lowest of four enumerated limits of liability, which include "the actual cash value of the stolen or damaged property at the time of the loss reduced by the applicable deductible", "the amount necessary to replace the stolen or damaged property reduced by the applicable deductible", "the amount necessary to repair the damages property to its pre-loss physical condition reduced by the applicable deductible", "the Stated Amount shown on the declarations page for that covered auto". DSMF ¶ 4; PRSMF ¶ 4; Policy 28, [DE 108-2]. 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." Policy 29, [DE 108-2].
Plaintiff South purchased his insurance Policy from Progressive in 2017. DSMF ¶ 1. The Policy covered a 2014 Ford Focus SE which was involved in a motor vehicle accident in 2018. DSMF ¶ 7, 8. Progressive deemed South's total loss claim for the covered auto and paid South's lender $9,954.48 which represented $9,815.55 for the pre-loss value of the car, plus $638.93 for sales tax, and less $500 for the deductible. DSMF ¶ 18, PSMF ¶18. To determine the pre-loss value of the Ford, Progressive used the WorkCenter Total Loss ("WCTL") system developed by Mitchell International, Inc. DSMF ¶ 19, PRSMF ¶ 19.
Plaintiff claims Progressive's method for settling the total loss claims of Plaintiff and the class members breached the Policy in three ways. These claims are based on the terms of the Policy and Florida Statute § 626.9743(5)(a).
First, Plaintiff contends that Defendant has systematically underpaid insureds by using the Mitchell WorkCenter Total Loss system ("WCTL") to calculate the value of insureds’ total loss vehicles. According to Plaintiff, Progressive's use of the Mitchell System violates Florida state law and breaches the insurance Policy in two ways. Plaintiff alleges that the Mitchell System violates the Policy by failing to be a "generally recognized used motor vehicle industry source." Additionally, the Mitchell system does not provide the "actual cost to purchase a comparable motor vehicle" derived from "retail cost." As such, Plaintiff seeks both a declaratory judgment that Progressive's use of the Mitchell system violates Florida law and breaches the Policy and a judgment for the damages caused by the breach of the Policy.
Second, the ACV, according to Plaintiff, includes title, license, and third, the ACV include dealer fees. According to Plaintiff, Defendant Progressive failed to pay Plaintiff South and the class members these fees as part of the ACV for the insureds’ vehicles. According to Plaintiff, Defendant's failure to pay the title, license, and dealer fees as part of the ACV is a violation of the Policy. As such, Plaintiff contends that every class member is owed uniform title and license fees. As to dealer fees, Plaintiff seeks an average dealer fee in Florida for each class member.
The Court previously certified the class in this matter. Now, Plaintiff and Defendant move for summary judgment on all of Plaintiff's claims.
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).
"A claim for breach of contract under Florida law requires proof of three elements: (1) the existence of a valid contract; (2) a material breach; and (3) damages." See Richardson v. Progressive Am. Ins. Co. , No. 218CV715FTM99MRM, 2019 WL 2287955, at *4 (M.D. Fla. May 29, 2019) (citing Havens v. Coast Fla., P.A. , 117 So. 3d 1179, 1181 (Fla. 2d DCA 2013) ). When interpreting insurances contracts, under Florida law, the contract is construed according to its "plain meaning." Mills v. Foremost Ins. Co. , 511 F.3d 1300, 1304 (11th Cir. 2008). Ambiguities in insurance contracts should be construed liberally in favor of the insured and against the drafter. See Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co. , 913 So. 2d 528, 532 (Fla. 2005) ; Prudential Prop. & Cas. Ins. Co. v. Swindal , 622 So. 2d 467, 472 (Fla. 1993). "[A]mbiguity exists in an insurance policy only when its terms make the contract susceptible to different reasonable interpretations...." Fireman's Fund Ins. Co. v. Tropical Shipping & Const. Co. , 254 F.3d 987, 1003 (11th Cir. 2001).
In interpreting the Policy the Court also considers that any insurance contract which contains a provision that does not comply with the Florida insurance law is "construed and applied in accordance with such conditions and provisions as would have applied had such policy ... been in full compliance with this code." Fla. Stat.§ 627.418(1) ; see Sardinas v. Infinity Auto Ins. Co. , No. 19-61369-CIV, 2019 WL 7811165, at *7 (S.D. Fla. Sept. 25, 2019) ; Foundation Health v. Westside EKG Assoc. , 944 So. 2d 188, 195 (Fla. 2006) (); Kaufman v. Mut. of Omaha Ins. Co. , 681 So. 2d...
To continue reading
Request your trial