Florida/Georgia Personal Injury & Workers Compensation

...ervices (we will use the terms interchangeably). Gov’t Emps. Ins. Co. v. Glassco Inc., 85 F.4th 1136, 1138 (11th Cir. 2023). The underlying GEICO policy promised reimbursement at a prevailing competitive price. Id. And, because of a mandate in section 627.7288, Florida Statutes (2016), GEICO’s comprehensive policies included a no-deductible provision for windshield repairs. Under its business model, Glassco would present an insured customer a written work order authorizing the...

...writ of certiorari to quash the circuit court's order that denied Progressive's petition for writ of certiorari below. Because we conclude that the circuit court departed from the essential requirements of the law by failing to analyze and interpret section 627.7288, Florida Statutes (2016), and because that error has resulted in a manifest injustice, we grant Progressive's petition and quash the order of the circuit court....

...After the windshield replacement companies filed suit, Progressive moved to compel appraisal and to stay discovery in each case. The windshield replacement companies then filed responses in opposition, arguing that the appraisal provisions in the policies were contrary to section 627.7288, which provides in relevant part that "[t]he deductible provisions of any policy of motor vehicle insurance ......

...ment of the appraisal provision in the context of a windshield claim would require the insured or, as in these cases, the insured's assignee to share in the cost of appraisal which would be the equivalent of applying a deductible in contravention of section 627.7288. Progressive filed a reply, arguing that the appraisal provisions did not violate section 627.7288 because the appraisal costs were not the equivalent of a deductible....

...The county court conducted a hearing and entered an order concluding that the *1016 appraisal provisions were unenforceable because they required the insureds or their assignees to bear their own appraiser's costs which the county court determined was the equivalent of a deductible imposed in violation of section 627.7288....

...Progressive argued in the circuit court below that the county court's orders departed from the essential requirements of law because equating the costs of appraisal with a deductible conflicted with the plain meaning of the term "deductible" and because section 627.7288 was not intended to apply for the benefit of windshield replacement companies....

...Select Insurance Co. v. Lloyd's of Shelton Auto Glass, LLC, a/a/o Jedidiah Thomas , Case No. 17-CA-5640 (Fla. 13th Jud. Cir. July 28, 2017). In that opinion, the circuit court noted that the county court's decision was based on its interpretation of section 627.7288. However, rather than conducting its own analysis of section 627.7288 to determine whether the county court departed from the essential requirements of the law, the circuit court explained that Progressive had failed to provide any "judicial authority from any district court of appeal determining whether" enforcement of appraisal provisions such as the provisions in the subject policies constituted a de facto violation of section 627.7288....

...rule, or a constitutional provision *1017 may be the basis for granting certiorari review." Kaklamanos , 843 So.2d at 890 . The circuit court departed from a clearly established principle of law when it failed to conduct an analysis of and interpret section 627.7288, instead apparently concluding that without a citation to appellate case law that addresses the subject of the county court's ruling, Progressive was unable to establish that the county court departed from the essential requirements of the law....

...of the county court's order and thus could not have concluded that there was no departure from the essential requirements of the law. The circuit court's failure to adhere to clearly established principles of law (i.e., by analyzing and interpreting section 627.7288 ) results in a manifest injustice here because the county court erroneously construed the appraisal cost requirement as a deductible that violated section 627.7288. Section 627.7288 contains no express prohibition against requiring an insured to pay his or her own appraisal costs where there is a dispute over windshield repair/replacement costs. Rather, section 627.7288 only prohibits requiring an insured to pay his or her deductible for a windshield damage claim....

...2014) (emphasis added). Thus, if the insurance company accepts liability for a non-windshield-damage claim, it then forwards payment to the insured 2 after deducting the amount of the insured's deductible. But where an insured makes a windshield-damage claim, section 627.7288 clearly states that deductible provisions in insurance policies do not apply....

...But the fact that the insured or its assignee ultimately challenges the amount of the payment and invokes the appraisal provision, thus necessitating the payment of a fee for an appraisal, does not convert the appraisal fee into a deductible applied in violation of section 627.7288....

...lating to such a claim and thereby shift the entire cost of appraisal-something *1018 which the insured or the insured's assignee can unilaterally demand under the policies-to the insurer. No such interpretation is supported by the plain language of section 627.7288, and thus there is no reason to resort to rules of statutory construction to reach a different result....

...It does not forbid a requirement for each party to bear its own appraisal costs in an insurance payment dispute. Thus where the contracting parties have freely contracted for such a requirement, such as in this case, they or their assignees may not rely on section 627.7288 to avoid their responsibility to pay such costs. Because we conclude that the circuit court departed from the essential requirements of law by failing to properly analyze and interpret section 627.7288 and because that error results in a manifest injustice for the reasons we explained, we grant Progressive's second-tier certiorari petition and hereby quash the circuit court's order denying the petitions filed below....

...We recognize that in some instances, the insurance company will issue payment to its insured, while in other situations, payment is made directly to the company performing repairs. We refer to payment being made to the insured simply for ease of reference. Because we have concluded that the statutory language of section 627.7288 is clear, we do not need to look at the legislative history of the statute to determine whether the legislature intended for windshield replacement companies to be able to enforce the statute against insurers. Cf. FINR II, Inc. , 221 So.3d at 1165 (explaining that "[l]egislative history can be helpful in construing a statute when its plain language is unclear"). However, we express doubt that in enacting section 627.7288, the legislature contemplated the scenario presented in these cases....

...nies. Thus the only remaining issue, i.e., whether an insured's assignee has to share in paying for the cost of appraisal to help resolve a dispute over the payment amount, has nothing to do with the safety concerns that resulted in the enactment of section 627.7288.

...writ of certiorari to quash the circuit court's order that denied Progressive's petition for writ of certiorari below. Because we conclude that the circuit court departed from the essential requirements of the law by failing to analyze and interpret section 627.7288, Florida Statutes (2016), and because that error has resulted in a manifest injustice, we grant Progressive's petition and quash the order of the circuit court....

...After the windshield replacement companies filed suit, Progressive moved to compel appraisal and to stay discovery in each case. The windshield replacement companies then filed responses in opposition, arguing that the appraisal provisions in the policies were contrary to section 627.7288, which provides in relevant part that "[t]he deductible provisions of any policy of motor vehicle insurance ......

...ment of the appraisal provision in the context of a windshield claim would require the insured or, as in these cases, the insured's assignee to share in the cost of appraisal which would be the equivalent of applying a deductible in contravention of section 627.7288. Progressive filed a reply, arguing that the appraisal provisions did not violate section 627.7288 because the appraisal costs were not the equivalent of a deductible....

...The county court conducted a hearing and entered an order concluding that the *1016 appraisal provisions were unenforceable because they required the insureds or their assignees to bear their own appraiser's costs which the county court determined was the equivalent of a deductible imposed in violation of section 627.7288....

...Progressive argued in the circuit court below that the county court's orders departed from the essential requirements of law because equating the costs of appraisal with a deductible conflicted with the plain meaning of the term "deductible" and because section 627.7288 was not intended to apply for the benefit of windshield replacement companies....

...Select Insurance Co. v. Lloyd's of Shelton Auto Glass, LLC, a/a/o Jedidiah Thomas , Case No. 17-CA-5640 (Fla. 13th Jud. Cir. July 28, 2017). In that opinion, the circuit court noted that the county court's decision was based on its interpretation of section 627.7288. However, rather than conducting its own analysis of section 627.7288 to determine whether the county court departed from the essential requirements of the law, the circuit court explained that Progressive had failed to provide any "judicial authority from any district court of appeal determining whether" enforcement of appraisal provisions such as the provisions in the subject policies constituted a de facto violation of section 627.7288....

...rule, or a constitutional provision *1017 may be the basis for granting certiorari review." Kaklamanos , 843 So.2d at 890 . The circuit court departed from a clearly established principle of law when it failed to conduct an analysis of and interpret section 627.7288, instead apparently concluding that without a citation to appellate case law that addresses the subject of the county court's ruling, Progressive was unable to establish that the county court departed from the essential requirements of the law....

...of the county court's order and thus could not have concluded that there was no departure from the essential requirements of the law. The circuit court's failure to adhere to clearly established principles of law (i.e., by analyzing and interpreting section 627.7288 ) results in a manifest injustice here because the county court erroneously construed the appraisal cost requirement as a deductible that violated section 627.7288. Section 627.7288 contains no express prohibition against requiring an insured to pay his or her own appraisal costs where there is a dispute over windshield repair/replacement costs. Rather, section 627.7288 only prohibits requiring an insured to pay his or her deductible for a windshield damage claim....

...2014) (emphasis added). Thus, if the insurance company accepts liability for a non-windshield-damage claim, it then forwards payment to the insured 2 after deducting the amount of the insured's deductible. But where an insured makes a windshield-damage claim, section 627.7288 clearly states that deductible provisions in insurance policies do not apply....

...But the fact that the insured or its assignee ultimately challenges the amount of the payment and invokes the appraisal provision, thus necessitating the payment of a fee for an appraisal, does not convert the appraisal fee into a deductible applied in violation of section 627.7288....

...lating to such a claim and thereby shift the entire cost of appraisal-something *1018 which the insured or the insured's assignee can unilaterally demand under the policies-to the insurer. No such interpretation is supported by the plain language of section 627.7288, and thus there is no reason to resort to rules of statutory construction to reach a different result....

...It does not forbid a requirement for each party to bear its own appraisal costs in an insurance payment dispute. Thus where the contracting parties have freely contracted for such a requirement, such as in this case, they or their assignees may not rely on section 627.7288 to avoid their responsibility to pay such costs. Because we conclude that the circuit court departed from the essential requirements of law by failing to properly analyze and interpret section 627.7288 and because that error results in a manifest injustice for the reasons we explained, we grant Progressive's second-tier certiorari petition and hereby quash the circuit court's order denying the petitions filed below....

...We recognize that in some instances, the insurance company will issue payment to its insured, while in other situations, payment is made directly to the company performing repairs. We refer to payment being made to the insured simply for ease of reference. Because we have concluded that the statutory language of section 627.7288 is clear, we do not need to look at the legislative history of the statute to determine whether the legislature intended for windshield replacement companies to be able to enforce the statute against insurers. Cf. FINR II, Inc. , 221 So.3d at 1165 (explaining that "[l]egislative history can be helpful in construing a statute when its plain language is unclear"). However, we express doubt that in enacting section 627.7288, the legislature contemplated the scenario presented in these cases....

...nies. Thus the only remaining issue, i.e., whether an insured's assignee has to share in paying for the cost of appraisal to help resolve a dispute over the payment amount, has nothing to do with the safety concerns that resulted in the enactment of section 627.7288.

...t of certiorari to quash the circuit court's order that denied Progressive's petition for writ of certiorari below. Because we conclude that the circuit court departed from the essential requirements of the law by failing to analyze and interpret section 627.7288, Florida Statutes (2016), and because that error has resulted in a manifest injustice, we grant Progressive's petition and quash the order of the circuit court.1 BACKGROUND Belo...

...cement companies filed suit, Progressive moved to compel appraisal and to stay discovery in each case. The windshield replacement companies then filed responses in opposition, arguing that the appraisal provisions in the policies were contrary to section 627.7288, which provides in relevant part that "[t]he deductible provisions of any policy of motor vehicle insurance ....

...t of the appraisal provision in the context of a windshield claim would require the insured or, as in these cases, the insured's assignee to share in the cost of appraisal which would be the equivalent of applying a deductible in contravention of section 627.7288. Progressive filed a reply, arguing that the appraisal provisions did not violate section 627.7288 because the appraisal costs were not the equivalent of a -4- deductible....

...der concluding that the appraisal provisions were unenforceable because they required the insureds or their assignees to bear their own appraiser's costs which the county court determined was the equivalent of a deductible imposed in violation of section 627.7288. Thereafter, Progressive filed petitions for writs of certiorari with the circuit court in each case....

...Progressive argued in the circuit court below that the county court's orders departed from the essential requirements of law because equating the costs of appraisal with a deductible conflicted with the plain meaning of the term "deductible" and because section 627.7288 was not intended to apply for the benefit of windshield replacement companies....

...Lloyd's of Shelton Auto Glass, LLC, a/a/o Jedidiah Thomas, Case No. 17-CA-5640 (Fla. 13th Jud. Cir. July 28, 2017). In that opinion, the -5- circuit court noted that the county court's decision was based on its interpretation of section 627.7288. However, rather than conducting its own analysis of section 627.7288 to determine whether the county court departed from the essential requirements of the law, the circuit court explained that Progressive had failed to provide any "judicial authority from any district court of appeal determining whether" enforcement of appraisal provisions such as the provisions in the subject policies constituted a de facto violation of section 627.7288....

...constitutional provision may be the basis for granting certiorari review." Kaklamanos, 843 So. 2d at 890. The circuit court departed from a clearly established principle of law when it failed to conduct an analysis of and interpret section 627.7288, instead apparently concluding that without a citation to appellate case law that addresses the subject of the county court's ruling, Progressive was unable to establish that the county court departed from the essential requirements of the law....

...county court's order and thus could not have concluded that there was no departure from the essential requirements of the law. The circuit court's failure to adhere to clearly established principles of law (i.e., by analyzing and interpreting section 627.7288) results in a manifest injustice here because the county court erroneously construed the appraisal cost requirement as a deductible that violated section 627.7288. Section 627.7288 contains no express prohibition against requiring an insured to pay his or her own appraisal costs where -7- there is a dispute over windshield repair/replacement costs. Rather, section 627.7288 only prohibits requiring an insured to pay his or her deductible for a windshield damage claim. "Deductible" is defined as "the portion of the loss to be borne by the insured before the insurer becomes liable for payment." Deductible, Black's Law Dictionary (10th ed....

...2014) (emphasis added). Thus, if the insurance company accepts liability for a non-windshield-damage claim, it then forwards payment to the insured2 after deducting the amount of the insured's deductible. But where an insured makes a windshield-damage claim, section 627.7288 clearly states that deductible provisions in insurance policies do not apply....

...But the fact that the insured or its assignee ultimately challenges the amount of the payment and invokes the appraisal provision, thus necessitating the payment of a fee for an appraisal, does not convert the appraisal fee into a deductible applied in violation of section 627.7288....

...ating to such a claim and thereby shift the entire cost of appraisal—something which the insured or the insured's assignee can unilaterally demand under the policies—to the insurer. No such interpretation is supported by the plain language of section 627.7288, and thus there is no reason to resort to rules of statutory construction to reach a different result....

...See Hardee County v. FINR II, Inc., 221 So. 3d 1162, 1165 (Fla. 2017) (explaining that when statutory language is clear and unambiguous, statutory construction is unnecessary).3 3Because we have concluded that the statutory language of section 627.7288 is clear, we do not need to look at the legislative history of the statute to determine whether the legislature intended for windshield replacement companies to be able to enforce the statute against insurers. Cf. FINR II, Inc., 221 So. 3d at 1165 (explaining that "[l]egislative history can be helpful in construing a statute when its plain language is unclear"). However, we express doubt that in enacting section 627.7288, the legislature contemplated the scenario presented in these cases....

...It does not forbid a requirement for each party to bear its own appraisal costs in an insurance payment dispute. Thus where the contracting parties have freely contracted for such a requirement, such as in this case, they or their assignees may not rely on section 627.7288 to avoid their responsibility to pay such costs. Because we conclude that the circuit court departed from the essential requirements of law by failing to properly analyze and interpret section 627.7288 and because that error results in a manifest injustice for the reasons we explained, we grant Progressive's second-tier certiorari petition and hereby quash the circuit court's order denying the petitions filed below....

...nies. Thus the only remaining issue, i.e., whether an insured's assignee has to share in paying for the cost of appraisal to help resolve a dispute over the payment amount, has nothing to do with the safety concerns that resulted in the enactment of section 627.7288. - 10 - 

...t, in other cases, plaintiffs had raised issues relating to whether the amount owed for a windshield replacement was a coverage issue not subject to appraisal and whether the appraisal provision of the policy violated the zero deductible statute, section 627.7288, Florida Statutes....

...Then, on May 17, 2017, Fry Enterprises filed a notice of supplemental authority that attached a county court order in a different Progressive case that denied a motion to stay and compel appraisal on a wholly different basis, i.e., that the appraisal provision violated section 627.7288, the zero deductible statute, when applied to claims for windshield replacement....

deductible for windshield repairs. Fla. Stat. § 627.7288. In the work order, the insureds

...d repair or replacement, even though Florida law and Progressive's own policy prohibit such a deductible. Compare § 626.9743(3), Fla. Stat. (2023), (providing that an insurer may "specifically require[] a particular shop for vehicle repairs"), with § 627.7288, Fla....

wind- shield repairs. See Fla. Stat. § 627.7288. An insurer has thirty days after proof-of-loss

...d repair or replacement, even though Florida law and Progressive's own policy prohibit such a deductible. Compare § 626.9743(3), Fla. Stat. (2023), (providing that an insurer may "specifically require[] a particular shop for vehicle repairs"), with § 627.7288, Fla....