Government Employees Insurance Company v. Glassco, Inc. ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11056
____________________
GOVERNMENT EMPLOYEES INSURANCE COMPANY,
GEICO INDEMNITY COMPANY,
GEICO GENERAL INSURANCE COMPANY,
Plaintiffs-Counter Defendants-Appellants,
versus
GLASSCO INC.,
Defendant-Counter Claimant-Appellee,
JASON WILEMON,
JOHN BAILEY,
ANDREW VICTOR,
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Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-01950-KKM-JSS
____________________
Before JORDAN, ROSENBAUM, and HULL, Circuit Judges.
HULL, Circuit Judge:
This appeal turns on the interpretation of Florida’s Motor
Vehicle Repair Act (“Repair Act”). The questions presented are
sufficiently unsettled, important, and likely to recur that we believe
the best course is to certify them to the Supreme Court of Florida,
the final arbiter of Florida law. See Mullaney v. Wilbur, 421 U.S. 684,
691 (1975) (noting the United States Supreme Court “repeatedly
has held that state courts are the ultimate expositors of state law”);
In re Cassell, 688 F.3d 1291, 1292 (11th Cir. 2012) (stating the final
arbiter of state law is the state supreme court).
I. BACKGROUND
A. The Parties
The plaintiffs Government Employees Insurance Company,
GEICO Indemnity Company, and GEICO General Insurance
Company (collectively “plaintiff GEICO” or “GEICO”) sell
automobile insurance policies with comprehensive coverage (the
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23-11056 Opinion of the Court 3
“policy”). The defendant Glassco Inc. (“Glassco”) is a windshield
repair shop in Florida, and defendants Jason Wilemon, John Bailey,
and Andrew Victor are the owners of Glassco (collectively the
“Glassco owners”).
Plaintiff GEICO sued defendants, alleging eight causes of
action, all premised on defendants’ purported violations of the
Repair Act. The district court dismissed Count 8 and granted
summary judgment in favor of the defendants on the remaining
counts. Plaintiff GEICO appeals. We set forth the facts, the
procedural history, the Repair Act, and the certified questions.
B. Facts
Beginning in 2016, Glassco provided windshield repairs to
Florida individuals insured by GEICO. Glassco gave a written
work order to the insureds, which they signed. Glassco’s work
order stated the repairs are at “no cost” to the insured. Under
Florida law, an insurer, like GEICO, is not allowed to charge its
insureds a deductible for windshield repairs. Fla. Stat. § 627.7288.
In the work order, the insureds assigned to Glassco all rights
to insurance payments for windshield repair and/or replacement
(collectively “repairs”). The insureds’ assignment expressly
assigned Glassco the right to make a demand for payment for the
repairs and to receive “direct payment” from GEICO.
Notably, the assignment also stated, “I hereby authorize the
above repairs, including sublet work, along with the necessary
materials. Glassco Inc. and its contractors may operate my vehicle
for the purpose of inspection and delivery at my risk.” (emphasis
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added). GEICO’s policy granted its insureds the sole discretion to
select a repair shop to repair a windshield. Glassco ran its business
almost entirely through independent contractors.
Pursuant to the assignment, Glassco made repairs and
submitted its invoice for reimbursement to GEICO. GEICO’s
policy provided that GEICO would reimburse the repair shop for
windshield repairs at the “prevailing competitive price” for a
“competent and conveniently located” repair shop. GEICO relied,
in part, on the National Auto Glass Specifications (“NAGS”) to
determine the “prevailing competitive price.” In early 2012,
GEICO circulated a letter to repair shops, stating that it would only
reimburse a deeply discounted amount of NAGS’s pricing
standards.
Between 2016 and 2019, 1,773 of GEICO’s insureds selected
Glassco to repair their windshields. Glassco completed the repair
work, and this appeal involves no customer complaints. Yet, for
nearly all of these 1,773 claims, GEICO did not pay Glassco’s full
invoiced price but instead made only deeply discounted payments
to Glassco.
In response, Glassco filed small claims actions in Florida
state court to collect the difference between its invoiced prices and
the discounted amounts GEICO paid. In state small claims court,
11 of the 1,773 cases were consolidated, tried, and resulted in a final
judgment for Glassco’s invoiced prices against GEICO. Glassco,
Inc., a.a.o. J. Bazan et al. v. GEICO Gen. Ins. Co., 16-CC-026608, 16-
CC-031286, 16-CC-029315, 16-CC-029301, 16-CC-034756, 16-CC-
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036273, 16-CC-037057, 16-CC-037082, 16-CC-037125, 16-CC-
039072, 17-CC-000870 (Fla. Hillsborough Cnty. Ct. Small Cl. Div.
Aug. 20, 2020). The state small claims court determined that “the
‘prevailing competitive price’ is more than the [discounted]
amount GEICO paid” and that Glassco’s “invoiced amount did not
exceed the ‘prevailing competitive price.’” Id. In so ruling, the
state small claims court followed the holding in Government
Employees Insurance Co. v. Superior Auto Glass of Tampa Bay, Inc., 26
Fla. L. Weekly Supp. 876a (Fla. Cir. Ct. App. Div. Mar. 27, 2018).
The Florida appellate court affirmed those 11 judgments in a
summary order. See GEICO Gen. Ins. Co. v. Glassco, Inc., 343 So. 3d
565 (Fla. Dist. Ct. App. 2022). GEICO settled an additional 53 cases.
It appears Glassco’s other 1,709 cases remain pending in state court.
C. Procedural History
While these state court actions were pending, GEICO
brought suit offensively against defendants in federal court.
GEICO’s complaint alleged that defendants violated the Repair Act
in five ways, and therefore defendants were not entitled to any
payment at all for any completed windshield repairs. GEICO seeks
to recover over $700,000 that it paid to Glassco from 2016 onward. 1
GEICO’s alleged five Repair Act violations are: (1) Glassco
subcontracted the repair work without its insured customers’
knowledge or consent; and although customers signed Glassco’s
1 The vast majority of this $700,000 represents the 1,700+ claims that GEICO
paid at discounted amounts below Glassco’s invoiced price.
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work orders for repairs at “no cost” to them, Glassco failed to give
them the required (2) written notice of the option to obtain a
written estimate; (3) written repair estimates; (4) invoices upon the
completion of repairs; and (5) odometer readings on work orders
and invoices.
GEICO’s original complaint asserted eight causes of action
based on (1) a Repair Act theory alone or (2) both a Repair Act
theory and a fraud theory. Underlying all of GEICO’s claims is the
contention that (1) Glassco did not comply with the Repair Act,
(2) Glassco is not entitled to any reimbursements at all, and (3) all
of Glassco’s claims presented to GEICO were thus fraudulent and
unlawful.
Count 1 seeks a declaratory judgment that Glassco has no
right to receive any payment by virtue of its Repair Act violations.
Count 2 is a federal RICO claim, and Count 3 is a federal RICO
conspiracy claim, both against the Glassco owners. Count 4 is a
Florida Deceptive and Unfair Trade Practices Act claim against all
defendants. Count 5 is a Florida RICO claim against the Glassco
owners. Count 6 is a common law fraud claim and Count 7 is an
unjust enrichment claim, both against all defendants. Count 8 is a
Repair Act statutory claim against all defendants brought under
Fla. Stat. § 559.921(1).
Defendants each filed a motion to dismiss GEICO’s
complaint for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The district court granted defendants’ motions
as to GEICO’s statutory Repair Act claim (Count 8) on the basis that
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(1) the Repair Act grants a private right of action to only
“customers,” (2) GEICO is not a “customer” as defined by the
Repair Act, and (3) the Repair Act thus does not grant GEICO a
statutory cause of action. The district court denied defendants’
motions on Counts 1 through 7.
After discovery, all parties moved for summary judgment.
The district court denied plaintiff GEICO’s motion and granted in
part and denied in part defendants’ motions. Even assuming
Glassco violated the Repair Act, the district court concluded that
Glassco’s violations (1) were at most technical violations of the
Repair Act and (2) did not render Glassco’s claims non-
compensable vis-à-vis GEICO. Therefore, Glassco’s
reimbursement claims submitted to GEICO were not fraudulent
or unlawful.
The district court granted judgment to the defendants on
(1) Count 1, the declaratory judgment claim, and (2) Counts 2, 3,
and 5, the RICO claims based on Repair Act violations and fraud,
for lack of scienter and continuity required under state and federal
RICO laws. As to Counts 4, 6, and 7, the district court granted
judgment for all defendants to the extent those counts were based
on Repair Act violations, but permitted them to continue based on
GEICO’s traditional fraud allegations.
GEICO filed a motion for reconsideration or, in the
alternative, for certification for interlocutory review pursuant to 28
U.S.C. § 1292(b). The court denied GEICO’s motion.
To appeal immediately, GEICO filed a motion to amend its
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complaint to remove its surviving fraud theory claims. The district
court granted GEICO’s motion and entered judgment for all
defendants on all counts. GEICO appealed.
D. GEICO’s Two Appeals
In GEICO’s first appeal, this Court held that although
GEICO attempted to amend its complaint to remove the fraud
theory claims, GEICO did not sufficiently remove them, and there
was no final decision. Gov’t Emps. Ins. Co. v. Glassco, Inc., 58 F.4th
1338 (11th Cir. 2023). We dismissed the appeal for lack of appellate
jurisdiction. Id. at 1346.
On remand, GEICO again sought leave to amend its
complaint to drop further the fraud theory. The district court
granted GEICO’s unopposed motion, and this second appeal
ensued. The operative complaint contains only claims premised
on GEICO’s theory that Glassco (1) violated the Repair Act in five
ways, (2) was not entitled to any payment for any repairs, and
(3) thus owes approximately $700,000 back to GEICO.
In this second appeal, GEICO conceded that if a court
determines that the alleged Repair Act violations do not void the
repair invoice and preclude Glassco from receiving any payment,
all eight counts in the operative complaint fail. The issues now
involve only the effect, if any, of Glassco’s five alleged violations of
the Repair Act and whether GEICO can sue for them.
II. STANDARD OF REVIEW
We review de novo a dismissal under Rule 12(b)(6) for failure
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to state a claim. Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th
Cir. 2017). We review de novo a district court’s summary judgment
order, drawing all inferences in the light most favorable to the non-
moving party. Smith v. Owens, 848 F.3d 975, 978 (11th Cir. 2017).
We review a district court’s interpretation of state law de
novo. Fla. VirtualSchool v. K12, Inc., 735 F.3d 1271, 1273 (11th Cir.
2013). In this diversity case, we must apply Florida law and decide
issues of state law “the way it appears the state’s highest court
would.” Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290
(11th Cir. 2001) (quotation marks omitted).
III. THE REPAIR ACT
We start by reviewing Florida’s Repair Act.
A. Five Alleged Statutory Violations
First, GEICO asserts that Glassco subcontracted the repair
work without its customers’ “knowledge or consent,” in violation
of § 559.920(14), which provides:
It is a violation of this act for any motor vehicle repair
shop or employee thereof to . . . [h]ave repair work
subcontracted without the knowledge or consent of
the customer unless the motor vehicle repair shop or
employee thereof demonstrates that the customer
could not reasonably have been notified.
Fla. Stat. § 559.920(14).
Second, GEICO contends Glassco failed to give its
customers “written notice” about the customers’ option to request
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or not request a written estimate, in violation of § 559.905(2),
which requires a notice with the following statement, in capital
letters of at least 12-point type:
Please read carefully, check one of the statements
below, and sign:
I understand that, under state law, I am entitled to a
written estimate if my final bill will exceed $100.
_____ I request a written estimate.
_____ I do not request a written estimate as long as
the repair costs do not exceed $___. The shop may
not exceed this amount without my written or oral
approval.
_____ I do not request a written estimate.
Signed _______________ Date _____
Fla. Stat. § 559.905(2) (font altered).
Third, GEICO asserts Glassco failed to provide its customers
a “written repair estimate” before doing the windshield repairs, in
violation of § 559.905(1), which provides:
When any customer requests a motor vehicle repair
shop to perform repair work on a motor vehicle, the
cost of which repair work will exceed $100 to the
customer, the shop shall prepare a written repair
estimate, which is a form setting forth the estimated
cost of repair work, including diagnostic work, before
effecting any diagnostic work or repair.
Fla. Stat. § 559.905(1). This section requires 14 items to be included
in a “written repair estimate.” Fla. Stat. § 559.905(1)(a)–(n).
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Fourth, GEICO contends Glassco failed to provide its
customers an invoice upon the completion of repairs, in violation
of § 559.911, which states: “The motor vehicle repair shop shall
provide each customer, upon completion of any repair, with a
legible copy of an invoice for such repair. The invoice may be
provided on the same form as the written repair estimate . . . .” Fla.
Stat. § 559.911. This section requires six items to be included in the
invoice. Fla. Stat. § 559.911(1)–(6).
Fifth, GEICO contends Glassco failed to include the
vehicle’s odometer reading on work orders and invoices, in
violation of § 559.911(1) and § 559.920(11). Section 559.911(1)
provides that invoices must include “[t]he current date and
odometer reading of the motor vehicle.” Fla. Stat. § 559.911(1).
Section 559.920(11) provides:
It is a violation of this act for any motor vehicle repair
shop or employee thereof to . . . [c]ause or allow a
customer to sign any work order that does not state
. . . the automobile’s odometer reading at the time of
repair.
Fla. Stat. § 559.920(11).
In response, defendants dispute the alleged Repair Act
violations. Defendants contend that Glassco’s customers
consented to subcontract work because they signed a work order
authorizing “sublet work” and Glassco’s “contractors” to operate
the vehicle. Further, customers have the option not to request a
written estimate. Defendants argue that no written estimate is
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required when a repair shop does not charge anything to the
customer. Allstate v. Auto Glass Am., LLC, 418 F. Supp. 3d 1009,
1024–25 (M.D. Fla. 2019). Defendants also argue that Glassco’s
work orders are effectively a “zero to the customer” estimate that
every customer signed. There is no evidence that Glassco’s
customers did not understand or accept the estimate of “no cost”
on Glassco’s work orders. Because Glassco’s work orders were at
“no cost” to its customers, defendants contend Glassco properly
submitted its invoices to GEICO who paid them, albeit at a deeply
discounted price.
Defendants also point out the Repair Act provides that even
if such violations occur, the repair shop can still recover a
“reasonable value of such repairs,” as follows:
If, in any proceeding brought pursuant to this part, it
is determined that the repairs and costs thereof were
in fact authorized, orally or in writing, the repairs
were completed in a proper manner, and the
consumer benefited therefrom, then the enforcing
authority may consider such factors in assessing
penalties or damages and may award the reasonable
value of such repairs.
Fla. Stat. § 559.921(7).
For purposes of the summary judgment motions, the district
court assumed that Glassco violated the Repair Act in the five
alleged ways and held those violations did not void the repair
invoices and did not preclude payment to Glassco. So, for purposes
of this appeal and certification, we assume that GEICO’s alleged
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Repair Act violations occurred.
B. Remedies Section of the Repair Act
For violations, the remedies section of the Repair Act creates
a private right of action for “[a]ny customer,” stating:
Any customer injured by a violation of this part may
bring an action in the appropriate court for relief. . . .
The customer may also bring an action for injunctive
relief in the circuit court.
Fla. Stat. § 559.921(1). The Repair Act defines a “customer” as:
[T]he person who signs the written repair estimate or
any other person whom the person who signs the
written repair estimate designates on the written
repair estimate as a person who may authorize repair
work.
Fla. Stat. § 559.903(2). GEICO admits it did not request the repair
work and did not sign a work order or a repair estimate.
We now turn to GEICO’s operative complaint.
IV. COUNT 8: REPAIR ACT’S CAUSE OF ACTION
A. District Court’s Dismissal of Count 8
In dismissing Count 8, the district court concluded that
(1) only a “customer” may bring a private action under § 559.921(1)
of the Repair Act, but (2) GEICO is not a “customer” as defined by
§ 559.903(2) of the Repair Act as (a) “the person who signs the
written repair estimate” or (b) the person designated “as a person
who may authorize repair work.” See Fla. Stat. §§ 559.903(2),
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559.921(1); see also Allstate, 418 F. Supp. 3d at 1025 (concluding that
an insurance company alleging fraudulent windshield repair
practices was not a customer under the text of the Repair Act).
The district court recognized that the Repair Act is
“remedial” and warrants a statutory construction that gives its
terms the most extensive and broadest meaning to which they are
reasonably susceptible. But the district court noted that the written
estimate is provided “[w]hen any customer requests a motor
vehicle repair shop to perform repair work on a motor vehicle.”
Fla. Stat. § 559.905(1). The district court reasoned that when no
written estimate is provided or signed, the only reasonable
interpretation of “customer” is the person who requested or
authorized the repair shop to perform the windshield repair work.
Since GEICO was not a person who requested or authorized
Glassco to repair the vehicles, the district court concluded that “no
reasonable construction permits GEICO—an insurer—to sue as a
‘customer’ under the Repair Act.” At bottom, the district court
determined the § 559.921(1) cause of action, read with the
§ 559.903(2) customer definition and the § 559.905(1) written
estimate requirement, did not grant GEICO a private cause of
action and, thus, dismissed Count 8 for failure to state a claim.
The district court also stressed that GEICO is not without a
remedy. Under § 559.921(2) of the Repair Act, GEICO can
complain to the Florida Department of Agricultural & Consumer
Services (“FDACS”) about the defendants’ non-compliance with
the Repair Act, and § 559.921(4) grants FDACS the power to
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impose a civil penalty, including a fine, an injunction against
specified activity, and a revocation of the repair shop’s registration.
See Fla. Stat. §§ 559.903(3), 559.921(2), 559.921(4). The district
court found that the existence of “an administrative remedy further
confirms that the Repair Act restricts the private right of action to
the customer only.”
B. GEICO’s Contentions Regarding Count 8
GEICO argues the district court erred in dismissing Count
8. On appeal, GEICO concedes that it is not a “customer” under
the Repair Act’s definition, but nonetheless asserts that it is entitled
to bring a statutory private cause of action under § 559.921(1) of
the Repair Act. 2 GEICO contends that the Repair Act, as a remedial
statute, is entitled to a liberal construction in order to advance the
remedy provided where it is consistent with the legislative
purpose. See Raymar Constr. Co., Inc. v. Lopez-Soto, 547 So. 2d 282,
284 (Fla. Dist. Ct. App. 1989). GEICO emphasizes that the purpose
of the Repair Act was “to protect consumers against
misunderstandings arising from oral estimates of motor vehicle
repairs and the legal disputes and litigation that result from the ‘fait
accompli’ nature of claims for repair work already done.” Citron v.
HGC Auto Collision, Inc., 342 So. 3d 795, 798 (Fla. Dist. Ct. App.
2022) (quotation marks omitted).
2 GEICO does not argue that the law of subrogation permits it to assert the
insured’s private right of action under the Repair Act. At oral argument,
GEICO also acknowledged that it does not have any assignment of any
customer’s potential claim under the Repair Act.
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GEICO also argues that a strict application of § 559.903(2)’s
definition of “customer” creates a hole in the Repair Act. Because
defendants never provided anyone with the requisite written
estimate, no one was able to sign an estimate, and therefore no one
could ever bring a private action against defendants under Fla. Stat.
§ 559.921(1). GEICO contends that the district court’s narrow
construction of “customer” insulates repair shops from liability for
their own Repair Act violations. GEICO argues that under the
circumstances here—where no one met the strict statutory
definition of a “customer”—the district court construed the Repair
Act in a way that undermines its remedial purpose.
GEICO also relies on the decision in 1616 Sunrise Motors, Inc.
v. A-Leet Leasing of Florida, 547 So. 2d 267 (Fla. Dist. Ct. App. 1989).
Sunrise involved a § 559.919 lien under the Repair Act. At the time,
§ 559.919 provided that a repair shop may not “refuse to return a
customer’s motor vehicle by virtue of any miscellaneous lien, nor
may it enforce such a lien in any other fashion if it has failed to
substantially comply with the provisions of this part.” Fla. Stat.
§ 559.919 (1980). In Sunrise, A-Leet owned the car but leased it;
after an accident, Sunrise repaired the car, but the lessee failed to
pay for the repairs. Sunrise, 547 So. 2d at 268. After Sunrise filed a
lien, A-Leet, the owner-lessor, filed a bond to release the car, and
Sunrise tried to collect on A-Leet’s bond for the repairs. Id.Because Sunrise had not received written or oral
authorization to do the repairs, the Florida court concluded Sunrise
could not recover on its claim against A-Leet’s bond—even though
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A-Leet “may not be a ‘customer’ within the definition portion of
the Act.” Id. The Florida court determined that allowing Sunrise,
an errant repair shop, to recover would undermine the purposes of
the Act. Id. Based on Sunrise’s expansive interpretation of the
Repair Act, GEICO argues “[a]ny customer” in the remedies
provision should also be construed broadly to include GEICO,
even though GEICO was not a customer, because otherwise
Glassco avoids the Repair Act’s requirements. 3
C. Defendants’ Contentions Regarding Count 8
Defendants respond that the district court correctly
dismissed Count 8. Defendants submit that GEICO ignores the
plain language of the Repair Act, which grants a private right of
action to only customers, and GEICO concedes that it is not a
customer. Defendants point to Allstate, where a federal district
court, like here, concluded that the insurer failed to meet the
statutory definition of a “customer” and was not covered by the
Repair Act. 418 F. Supp. 3d at 1025. Defendants also argue that
Florida courts begin and end statutory construction with the plain
language of the statute, and we should too in this diversity case. In
re A.W., 816 So. 2d 1261, 1263–64 (Fla. Dist. Ct. App. 2002).
Defendants further contend that the Repair Act does not
provide recovery, restitution, or money back when GEICO
3 At the time of Sunrise, “customer” was defined, under an older version of the
Repair Act, as “someone who uses an automobile for personal use, or in
connection with a business owning or operating fewer than five vehicles.”
Sunrise, 547 So. 2d at 268.
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directly pays its insured’s assigned benefits to a non-compliant
repair shop. As to this point, defendants argue that the Repair Act
does not contain a voiding penalty that disentitles Glassco from
recovering any compensation for services actually performed, even
if Glassco violated the Repair Act. Instead, the Act expressly
contemplates that a non-compliant repair shop may still be
awarded the reasonable value of its services.
Defendants also emphasize that GEICO’s reliance on Sunrise
is misplaced. First, defendants argue that Sunrise, like GEICO’s
other cited Florida decisions about liens, is inapposite because this
case does not involve (1) the enforcement of a possessory lien, (2) a
claim where Glassco, a repair shop, retained possession of a
customer’s vehicle due to an unpaid repair invoice, or (3) a claim
in which Glassco is attempting to enforce a Chapter 713 lien. See
State Farm Mut. Auto. Ins. Co. v. At Home Auto Glass, LLC, 2021 WL
6118102, at *5 n.4 (M.D. Fla. Dec. 27, 2021) (finding that because
defendant was not attempting to enforce a lien, Sunrise “is therefore
of no help to [plaintiff]”).
Second, defendants stress that (1) Sunrise predates the 1993
amendment to the Repair Act that added § 559.921(7), which
allows non-compliant repair shops to recover the reasonable value
of their services; and (2) Sunrise involved a previous definition of
“customer,” see n.3, supra, and was limited to the circumstances of
that case.
Third, defendants rely on America Atlantic Transmission v.
Nice Car, Inc., 112 So. 3d 639 (Fla. Dist. Ct. App. 2013). At the time
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of the car repairs by AAT, plaintiff Nice Car already had a lien on
the car. After the owner failed to pay, the AAT repair shop filed a
lien and proposed sale. Nice Car, 112 So. 3d at 640. Nice Car posted
a cash bond to obtain release of the car. Id. at 641. The AAT repair
shop refused to release the car and sold it. Id. The Florida court
held that the lienholder, Nice Car, who is neither the customer nor
the vehicle owner, was not entitled to obtain possession of the car
by posting a cash bond. 4 Id. at 642–43. Defendants point out that
Nice Car: (1) rejected the proposition that Sunrise allows a non-
customer to prevail against the interest of a non-compliant repair
shop; (2) found that “[h]ad the legislature intended to define
‘customer’ to include ‘any person claiming an interest in or lien on
the vehicle,’ it would have done so”; and (3) concluded that Sunrise
was of “no precedential value” because it involved the owner A-
Leet, whereas “Nice Car is neither the owner, nor the customer as
that term [is] defined in section 559.917.” Nice Car, 112 So. 3d at
643.
To put a finer point on the issue, reimbursement claims for
4 After Nice Car, the lien statute was expanded to allow both customers and a
person claiming a lien to obtain release of a vehicle by posting a bond. Compare
Fla. Stat. § 559.917 (2019) (“Any customer may obtain the release of her or his
motor vehicle . . . .”) with Fla. Stat. § 559.917 (“A customer or a person of
record claiming a lien against a motor vehicle may obtain the release of the
motor vehicle . . . .”). Nice Car is thus superseded by statute. See Toyano’s Auto
Repair Servs. v. S. Auto Fin. Co., LLC, 331 So. 3d 186, 188 n.1 (Fla. Dist. Ct. App.
2021). Defendants submit Nice Car is still relevant to show how GEICO
misreads Sunrise.
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windshield repairs under Florida law are somewhat inherently of a
fait accompli nature as to the insurance company. That is because
(1) insurers in Florida cannot require a person with comprehensive
coverage to pay a deductible for windshield repairs, Fla. Stat.
§ 627.7288, and (2) insureds have sole discretion to select the repair
shop, at “no cost” to them. After notifying the insurer about
windshield damage, insureds can assign their rights to payment for
repairs to a repair shop of their choosing in exchange for the shop’s
performance. Then, acting as the insured’s assignee, the repair
shop performs the repair and seeks payment directly from the
insurer. The remedial nature of the Repair Act—to protect
consumer customers from oral estimates and misunderstandings—
is arguably not designed to protect insurers, such as GEICO.
V. COUNTS 1–7
Even without a statutory cause of action under the Repair
Act, GEICO argues Glassco’s violations of the Repair Act rendered
its invoices non-payable and Glassco’s submission of such invoices
for payment to GEICO constituted fraudulent and unlawful
conduct for which GEICO can recover. As noted earlier, GEICO
admits that if Glassco’s alleged Repair Act violations do not void
the repair transaction, Counts 1 through 7 fail.
A. District Court’s Ruling on Counts 1–7
The district court granted summary judgment on GEICO’s
remaining claims premised on Repair Act violations, concluding
the Act does not have a provision voiding reimbursement invoices
from non-compliant repair shops. The district court reasoned that
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23-11056 Opinion of the Court 21
“the Repair Act contains no provision rendering [non-]payable
claims for repair work actually performed by noncompliant repair
shops, meaning these claims are not considered unlawful under
Florida law.” The district court observed that, in contrast, other
Florida statutes clearly contain a voiding penalty. See State Farm
Mut. Auto. Ins. Co. v. Performance Orthopaedics & Neurosurgery, LLC,
278 F. Supp. 3d 1307, 1330 n.26 (S.D. Fla. 2017) (listing Florida
statutes that void reimbursement claims submitted by a non-
compliant entity). The district court noted that the absence of this
kind of provision in the Repair Act is “strong evidence that the
Florida legislature did not consider such claims fraudulent or
unlawful.”
The district court also concluded that the Florida decisions
cited by GEICO were not on point. See, e.g., Osteen v. Morris, 481
So. 2d 1287 (Fla. Dist. Ct. App. 1986), Gonzalez v. Tremont Body &
Towing, Inc., 483 So. 2d 503 (Fla. Dist. Ct. App. 1986), and Safari
Tours, Inc. v. Pasco, 255 So. 3d 415 (Fla. Dist. Ct. App. 2018). In the
district court’s view, these Florida decisions were distinguishable
because “in each of these decisions, the customer refused to pay for
repairs because the repair shop either failed to furnish the written
estimate or exceeded the written estimate, and the customer
asserted the private right of action under the Repair Act.” The
district court also found GEICO’s other cited cases “similarly
unavailing.” Thus, in light of the absence of a voiding penalty, the
court determined that “[c]laims under the Repair Act for repairs
performed by noncompliant repair shops are not fraudulent or
unlawful vis-à-vis the insurance company.”
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22 Opinion of the Court 23-11056
B. GEICO’s Contentions Regarding Counts 1–7
GEICO argues the district court erred in granting
defendants’ summary judgment motions on Counts 1 through 7.
GEICO asserts that any violation of the Repair Act renders
Glassco’s reimbursement claims for repair work, even if
performed, wholly non-compensable. GEICO contends that
Florida courts have held that a repair shop that violates the Repair
Act may not collect, even in quantum meruit. See Osteen, 481 So.
2d at 1289–90; Gonzalez, 483 So. 2d at 504; Sunrise, 547 So. 2d at 268;
Perez-Priego v. Bayside Carburetor & Ignition Corp., 633 So. 2d 1190,
1191 (Fla. Dist. Ct. App. 1994); Safari Tours, 255 So. 3d at 417; see
also FGAP Inv. Corp. v. A1 Body & Glass of Coral Springs, LLC, 325 So.
3d 1006, 1008 (Fla. Dist. Ct. App. 2021). GEICO argues that its
status as a non-customer does not alter the analysis or result.
GEICO asserts it does not matter whether the Repair Act
includes a statutory voiding penalty because Florida courts have
held that non-compliant repair shops cannot recover. Because
defendants’ Repair Act violations make their invoices non-payable,
GEICO argues Glassco submitted fraudulent and unlawful claims.
C. Defendants’ Contentions Regarding Counts 1–7
Defendants respond that the district court correctly entered
summary judgment in their favor. Defendants stress that the
Repair Act does not contain a voiding penalty “which would
disentitle Glassco from receiving any compensation for services
rendered if Glassco violated any singular provision of the Repair
Act.” Rather, defendants point to Fla. Stat. § 559.921(7), which
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23-11056 Opinion of the Court 23
allows a non-compliant repair shop to recover the reasonable value
of its repairs. Section 559.921(7), defendants argue, evinces the
Florida Legislature’s “clear intention that the Repair Act not only
(1) does not provide a voiding penalty for a violation of the Repair
Act, but rather, (2) does contemplate a quantum meruit award to a
non-compliant repair shop in an action brought by a customer
under the remedies section of the Repair Act.”
Defendants further argue that all Florida decisions cited by
GEICO involved lawsuits between the customer and the repair
shop—not by an insurer who paid the repair costs for completed
repair work requested by a satisfied customer. Defendants also
contend that GEICO’s cited cases do not apply here because:
(1) some pre-date § 559.921(7), which allows a repair shop in
substantial compliance to recover the reasonable value of its
repairs; (2) Glassco has not attempted to enforce a lien against a
customer; and (3) Glassco has not refused to return a vehicle to a
customer.
Defendants also cite to other Florida decisions that allowed
a non-compliant repair shop to recover the reasonable value of its
repairs. See Lieberman v. Collision Specialists, Inc., 526 So. 2d 102 (Fla.
Dist. Ct. App. 1987); KT’s Kar Kare, Inc. v. Laing, 617 So. 2d 325, 326
(Fla. Dist. Ct. App. 1993). Defendants contend that because
Glassco prepared a “zero to the customer” estimate which was
signed by each customer, Glassco is entitled to compensation for
the repairs it performed. Defendants argue that because the alleged
violations were, at most, technical and without costs to the insured
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24 Opinion of the Court 23-11056
customer, Glassco was in substantial compliance with the Repair
Act and not barred from receiving payment on its repair invoices.
Defendants also argue that because the Repair Act does not
expressly or impliedly render repair services non-payable when
performed by a non-compliant repair shop, a statutory violation of
the Repair Act does not render the repair invoices non-payable.
Defendants assert that “[b]ecause the Repair Act contains no
express or implied voiding penalty, the matter is firmly settled
against [GEICO].”
VI. QUESTIONS CERTIFIED TO THE SUPREME COURT
OF FLORIDA
After careful review, and with the benefit of oral argument,
we could find no decision from the Supreme Court of Florida,
Florida appellate courts, or this Court answering the issues in this
appeal. As the district court here aptly observed, “district courts
within the circuit have routinely confronted similar Repair Act
claims without binding precedent to apply,” and “clarification—
sooner rather than later—about the scope of Florida law appears
advantageous to all.” Moreover, the issues in this appeal will
impact thousands of windshield repair claims.
Principles of federalism and comity counsel us not to
attempt to divine the answers to these challenging and important
questions of Florida statutory law. See Cassell, 688 F.3d at 1300.
“When there is substantial doubt about the correct answer to a
dispositive question of state law, a better option is to certify the
question to the state supreme court.” Id. For the reasons discussed
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23-11056 Opinion of the Court 25
above, this case falls into that category. Accordingly, we certify to
the Supreme Court of Florida the following questions:
(1) DOES FLA. STAT. § 559.921(1) GRANT AN
INSURANCE COMPANY A CAUSE OF ACTION WHEN A
REPAIR SHOP DOES NOT PROVIDE ANY WRITTEN REPAIR
ESTIMATE?
(2) DO THE VIOLATIONS HERE UNDER THE REPAIR
ACT VOID A REPAIR INVOICE FOR COMPLETED
WINDSHIELD REPAIRS AND PRECLUDE A REPAIR SHOP
FROM BEING PAID ANY OF ITS INVOICED AMOUNTS BY AN
INSURANCE COMPANY?
The phrasing used in these certified questions should not
restrict the Supreme Court of Florida’s consideration of the
problems posed by this case. Of course, our statement of any of
the questions certified does not “limit the inquiry” of the Supreme
Court of Florida or restrict its consideration of the issues that it
perceives are raised by the record certified in this case. Cassell, 688
F.3d at 1301 (internal quotation marks omitted). This extends to
the Supreme Court of Florida’s restatement of the issues and the
manner in which the answers are given.
To assist the Supreme Court of Florida’s consideration of
this case, the entire record on appeal, including copies of the
parties’ briefs, shall be transmitted to the Supreme Court of Florida
along with this certification.
QUESTIONS CERTIFIED.