Opinion
CASE NO. 19-21760-CIV-DIMITROULEAS
2021-08-30
William SOUTH, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant.
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.
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
WILLIAM P. DIMITROULEAS, United States District Judge
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]. The Court is otherwise fully advised in the premises.
The Parties motions, responses, replies, and statements of material fact were filed in redacted form as well as unredacted form under seal. In this Order the Court refers to the redacted, unsealed versions of various documents.
I. BACKGROUND
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.
Defendant's statement of material facts, Plaintiff's responsive statement of material facts, Plaintiff's statement of material facts and Defendant's responsive statement thereto include various citations to portions of the record. Defendant's statement of facts [DE 108] is cited as "DSMF", Plaintiff's response [DE 170] is cited as "PRSMF", Plaintiffs’ statement of material facts [DE 168] is cited as PSMF and Defendant's response [DE 174] is cited as "DRSMF." Any citations herein to the statement of facts, response, and reply thereto should be construed as incorporating those citations to the record.
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.
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
"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) ("Florida courts have long recognized that the statutory limitations and requirements surrounding traditional insurance contracts may be incorporated into an insurance contract for purposes of determining the parties’ contractual rights."); Kaufman v. Mut. of Omaha Ins. Co. , 681 So. 2d 747, 749 (Fla. 3rd DCA 1996) ("If an insurance policy does not comply with the Insurance Code, the policy is to be construed in a way which brings it into compliance....").
Plaintiff claims Progressive's method for settling the total loss claims of Plaintiff and the class members breached the Policy and the Policy as amended to comply with Florida Statute § 626.9743(5)(a). First, Plaintiff contends that Defendant has systematically underpaid insureds by using the WCTL system which Plaintiff claims violates Florida state law. Second, the ACV, according to Plaintiff, includes title and license transfer fees. Finally, Plaintiff claims Defendant breached the Policy by failing to pay reasonable dealer fees.
In response, Defendant argues that Progressive's obligation under the Policy is to pay for the amount of "loss" to Plaintiff's covered vehicle up to the relevant limit of liability, which here the Parties agree is the ACV. Progressive states that Plaintiff was "entitled to receive only a payment for what he lost—the market value of the Ford, in its pre-loss condition...." Def. Resp. 2, [153-1]. Further, Defendant argues that Florida Statute § 626.9743 does not expand the limits of liability in the Policy beyond ACV as determined by its market value at the time of loss, including a consideration for the condition of the vehicle.
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". DSMF ¶ 4; PRSMF ¶ 4; Policy 28, [DE 108-2].
In absence of a clear provision stating how "loss" will be defined or measured under the Policy it is reasonable to interpret the Policy as stating that loss will be determined by the lowest of the Policy's limits of liability as applied to the claim. Here, the Parties appear to agree that the relevant limit of liability when the vehicle is deemed a total loss is the ACV. Plaintiff claims, in effect, that Progressive is not properly calculating the ACV in cases where the relevant limit of liability is the ACV.
Accordingly, the relevant question for the Court is whether Progressive properly calculated the ACV for Plaintiff's total loss vehicle under the terms of the Policy as amended to comply with Florida Statute § 626.9743. A. Valuation Under the Policy as Amended to Comply with Florida Law
Under sub-section 5 of Florida Statute § 626.9743 insurers must use one of four enumerated methods to settle total loss claims when the they opt to settle the claim by paying the actual cash value or providing a replacement vehicle. The statute provides that the insurer "shall" use one of the following four methods:
(a) The insurer may elect a cash settlement based upon the actual cost to purchase a comparable motor vehicle, including sales tax, if applicable pursuant to subsection (9). Such cost may be derived from:
1. When comparable motor vehicles are available in the local market area, the cost of two or more such comparable motor vehicles available within the preceding 90 days;
2. The retail cost as determined from a generally recognized used motor vehicle industry source such as:
a. An electronic database if the pertinent portions of the valuation documents generated by the database are provided by the insurer to the first-party insured upon request; or
b. A guidebook that is generally available to the general public if the insurer identifies the guidebook used as the basis for the retail cost to the first-party insured upon request; or
3. The retail cost using two or more quotations obtained by the insurer from two or more licensed dealers in the local market area.
(b) The insurer may elect to offer a replacement motor vehicle that is a specified comparable motor vehicle available to the insured, including sales tax if applicable pursuant to subsection (9), paid for by the insurer at no cost other than any deductible provided in the policy and betterment as provided in subsection (6). The offer must be documented in the insurer's claim file. For purposes of this subsection, a comparable motor vehicle is one that is made by the same manufacturer, of the same or newer model year, and of similar body type and that has similar options and mileage as the insured vehicle. Additionally, a comparable motor vehicle must be in as good or better overall condition than the insured vehicle and available for inspection within a reasonable distance of the insured's residence.
(c) When a motor vehicle total loss is adjusted or settled on a basis that varies from the methods described in paragraph (a) or paragraph (b), the determination of value must be supported by documentation, and any deductions from value must be itemized and specified in appropriate dollar amounts. The basis for such settlement shall be explained to the claimant in writing, if requested, and a copy of the explanation shall be retained in the insurer's claim file.
(d) Any other method agreed to by the claimant.
Defendant contends that the WCTL valuation method complies with sections 5(a)(1), 5(c), and 5(d) of § 626.9743(5). In order, to comply with the Policy as amended to conform to § 626.9743, however, Defendant need only comply with one of the four specified methods. Based on a review of the undisputed facts in this case, the Court finds that Plaintiff has failed to demonstrate that the WCTL system does not comply with at least one of the four methods provided for in § 626.9743(5). Specifically, unrebutted record evidence establishes that the WCTL system complies with § 626.9743(5)(a)(1) and, thereby, meets the requirements of the Policy as amended to conform to § 626.9743.
Plaintiff argues that the WCTL system does not comply with the § 626.9743(5)(a)(1) of the statute for three reasons. First, Plaintiff argues that a valuation method can only comply with one of the enumerated options in § 626.9743(5)(a) and cannot comply with more than one. Second, Plaintiff contends that the statutory language of § 626.9743(5)(a)(1) requires an insurer to use only actual sales prices, rather than sale or list prices. Third, Plaintiff argues Progressive has not proven that the vehicles listed in the WCTL report are comparable to the covered auto. The Court will address each argument in turn.
Plaintiff's first argument, that the Defendant's use of an electronic database necessarily requires it to comply with § 626.9743(5)(a)(2)(a) is unpersuasive. It is not reasonable to read the statute as requiring an insurer to comply with § 626.9743(5)(a)(2)(a) if it chooses to use an electronic database.
First the Court notes that nothing the in the statute suggests an insurer can only comply with one of the sections. Plaintiff's argument seems to be based on the theory that when an insurer uses an electronic database it must comply with § 626.9743(5)(a)(2)(a) because the disjunctive "or" means the WCTL system can only comply with one of the sections under § 626.9743(5)(a). The statute's use of the word "or", however, does not alone equate to "one or the other but not both." Cf. Kaufman v. Mut. of Omaha Ins. Co. , 681 So. 2d 747, 749 (Fla. 3rd DCA 1996) (explaining that an insurance statute required an insurer to select one option or another but not both when the statute contained the language "(1) The contract shall include the following provision ... (2)A policy may, in place of the provision set forth in subsection (1), include the following provision....)(internal emphasis omitted). Plaintiff relies on Florida Pulp & Paper Association Environmental Affairs, Inc. v. Department of Environmental Protection , to support its argument that the disjunctive conjunction "or," means that Progressive must comply with § 626.9743(5)(a)(2)(a) if it uses an electronic database. 223 So. 3d 417, 420 (Fla. 1st DCA 2017). In Florida Pulp and Paper , however, the First District Court of Appeals of Florida held that because a statute listed four options separated by an or, a person who failed to take advantage of the first available option was not necessarily precluded from taking advantage of one of the other options. Id. The First District Court of Appeals’ reasoning does not require the use of the word "or" in a statute to mean "one or the other but not both." In addition, the opinion relied on by the court in Florida Pulp & Paper similarly reasoned that the term "or" meant that two options were available but did not interpret "or" to mean "one or the other but not both." Sparkman v. McClure , 498 So. 2d 892, 895 (Fla. 1986) (determining that the phrase "written or recorded order of denial" meant that an order "need not be ‘written’ so long as it is otherwise ‘recorded.’ ").
Second, it would not be reasonable to read the statute as implying that any use of an electronic database required an insurer to comply with § 626.9743(5)(a)(2)(a). Section 626.9743(5)(a) provides three possible options for determining the "actual cost to purchase a comparable motor vehicle....." Fla. Stat. § 626.9743(5)(a). The first option is the cost of two or more comparable motor vehicles, subject or certain requirements; the second is the retail cost based on a general recognized used motor vehicle source; and the third is the retail cost used to or more quotes subject to certain requirements. Section 626.9743(5)(a)(2) a provides an example of a permissible "generally recognized used motor vehicle source"; the (2)a subsection further specifies certain requirements that the valuation must meet when an electronic database is used as a "generally recognized used motor vehicle source". Nothing in § 626.9743(5)(a)(2) a limits the use of electronic databases generally. Rather, based on the structure of the statute it only limits the use of electronic databases when they are used as generally recognized used motor vehicle sources.
The Court is equally unpersuaded by Plaintiff's second reason why the WCTL does not comply with § 626.9743(5)(a)(1). Plaintiff argues that the WCTL system fails to comply with Florida law because it uses mostly advertised prices rather than sale prices. According to Plaintiff's reasoning, the statutes use of the word "cost" requires sale prices rather than list prices and that the use of the phrase "preceding 90 days" requires past sale prices rather than present list prices. The relevant provision of the statute states: "[w]hen comparable motor vehicles are available in the local market area, the cost of two or more such comparable motor vehicles available within the preceding 90 days ..." § 626.9743(5)(a). Read in its entirety the provision is not reasonably read to limit an insurer to only past sale prices. The provision does not state that the insurer may use the costs of two or more comparable vehicles which "were available" in the past ninety days. It states the insurer may use the cost of two or more available motor vehicles "available" in the preceding ninety days when comparable vehicles "are available". The text of the statute does not limit "such comparable motor vehicles" to only those which were, but no longer are, available within the past ninety days.
The Court's interpretation of the statute aligns with the Northern District of Ohio's interpretation of a similar Ohio statute in Desai v. GEICO Casualty Co. See 478 F. Supp. 3d 609, 617 (N.D. Ohio 2020). In Desai , the district court analyzed a provision which stated "[t]he average cost of two or more comparable automobiles in the local market area if comparable automobiles are or were available to consumers within the last ninety days...." Id. , (citing Ohio Admin. Code 3901-1-54(H)(7)(b) ). The district court analyzing this provision found that "vehicles that are available to customers would encompass vehicles that are advertised for sale", based on the statutes’ use of the phrase "are or were available". In comparison to the Ohio statute in Desai , the Florida statute merely omits a "to be" verb and thereby neither limiting comparable vehicles to either those that "are" or "were" available for sale. Rather the plain text of § 626.9743(5)(a)(1) refers to all vehicles "available" in the preceding ninety days. Nothing in the language limits the provision to vehicles which were available within the preceding ninety days but no longer are. The Court cannot read additional limiting words such as "were but no longer are" available to the statutory text. Friends of Everglades v. S. Fla. Water Mgmt. Dist. , 570 F.3d 1210, 1224 (11th Cir. 2009) (holding that courts "are not allowed to add or subtract words from a statute"). The Florida legislature court have limited § 626.9743(5)(a)(1) to vehicles which were sold in the preceding ninety days, but it did not.
Finally, Plaintiff argues that the WCTL does not comply with § 626.9743(5)(a)(1) because it does not provide sufficient details to determine that the listed vehicles are "comparable". Specifically, Plaintiff takes issue with the fact that the WCTL report does not state whether the cars were involved in prior accidents nor detail the cars’ equipment and options. Plaintiff states that these details are required to determine that the vehicles were comparable, relying on the statement of Dr. Walker who reported that "the value of any used vehicle is an individualized and vehicle-specific inquiry because cars differ in make, model, model year, mileage, equipment and options, and last but not least condition." Walker Decl. ¶ 18 [DE 87-14].
The Court similarly finds Plaintiff's argument about the comparability of the vehicles listed in the WCTL system unpersuasive.
First, Plaintiff appears to define "comparable" covering the traits of age, equipment, and mileage, but not condition. There is no evidence in the text of the statute that the legislature intended such a definition. There is no evidence or argument that the legislature envisioned requiring insurers to take each of these considerations into account in each valuation of a vehicle. Certainly, Plaintiff adamantly argues that the legislature did not intend condition to be considered in the term "comparable" in § 626.9743(5), in other portions of its briefing.
Second, and more importantly, it is Plaintiff's burden to demonstrate that the WCTL system fails to comply with the statute or terms of the Policy. See Marshall v. City of Cape Coral, Fla. , 797 F.2d 1555, 1559 (11th Cir. 1986) ("In responding to a motion, a party ‘may not rest upon the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.’ ")(citing Fed.R.Civ.P. 56(e) ). Plaintiff's protestations that the WCTL report does not provide sufficient evidence to demonstrate that the vehicles are comparable does not alone raise a genuine issue of material fact that the WCTL system fails to comply with § 626.9743(5)(a)(1). While the Court must draw all reasonable inferences in favor of the non-movant on summary judgment, inferences based on speculation are not reasonable. Kernel Recs. Oy v. Mosley , 694 F.3d 1294, 1311 (11th Cir. 2012). Here, Plaintiff does not even speculate that the vehicles in the WCTL report are not comparable. Plaintiff merely raises the possibility that they could be non-comparable.
Further, the Court notes that the WCTL report does provide the year, make, model, options, mileage, and contact information for the dealer listing the vehicle for year auto listed in the report. WCT Report 7-15, [DE 87-7]. Plaintiff South could have marshaled evidence that the vehicles in the WCTL report did not have the equipment of accident history that was comparable to his total loss vehicle, but he did not.
Regarding the facts of Plaintiff South's claim, record evidence demonstrates that Progressive's use of the WCTL system in adjusting South's total loss claim complied with § 626.9743(5)(a)(1). Progressive paid Plaintiff more than at least three comparable vehicles that were listed for sale in the local market area in the 90 days prior to Plaintiff's accident in compliance with Fla. Stat. Ann. § 626.9743(5)(a)(1). DSMF ¶ 30, 32. The WCTL report lists seventeen (17) vehicles, all of which are 2014 Ford Focuses with mileage ranging from 17,559 miles to 34,481 miles and list or sold prices of $8,900 to $11,995. WCTL Report 5, [DE 87-7]. Three of the vehicles were listed for less than the Plaintiff's vehicle's ACV and one of the vehicles was sold for less. WCTL Report 5, [DE 87-7].
B. The Inclusion of Certain Fees in the Meaning of Actual Cash Value
Plaintiff claims that certain fees, such as title and registration transfer fees and dealer fees, are due to class members as part of the ACV Progressive paid for their total loss vehicles. Defendant contends that the Policy defined ACV as "based on the market value, age, and condition of the vehicle at the time the loss occurs." DSMF ¶ 5. Such fees, according to Defendant, are not included in the "market value" of a vehicle and therefore are not include in the ACV.
Based on the following analysis, the Court finds that ACV under the Policy is reasonably interpreted as covering replacement costs less depreciation. Title and registration transfer fees are included in replacement costs under Florida law, but dealer fees are not.
i. The Meaning of ACV
Construing the Policy as a whole, Auto-Owners Ins. Co. v. Anderson , 756 So. 2d 29, 34 (Fla. 2000), it is clear that there is more than one reasonable interpretation of the terms relating to ACV. Under Florida law, market value is routinely interpreted to mean replacement costs less depreciation. See Trinidad v. Fla. Peninsula Ins. Co. , 121 So. 3d 433, 438 (Fla. 2013) ("actual cash value is generally defined as ‘fair market value’ or ‘[r]eplacement cost minus normal depreciation,’ where depreciation is defined as a ‘decline in an asset's value because of use, wear, obsolescence, or age.’ "); Goff v. State Farm Fla. Ins. Co. , 999 So. 2d 684, 690 (Fla. 2nd DCA 2008). As such, it is reasonable to read an insurance policy which specifies that ACV will be determined by market value, age, and condition as equating ACV with replacement costs less depreciation under Florida law. Liberally construing the Policy in favor of the insured, see Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co. , 913 So. 2d 528, 532 (Fla. 2005), the Court finds that ACV, determined by market value, age and condition, is equivalent to replacement costs less depreciation, under the Policy.
Contrary to Defendant's reading of the Policy, ACV is not clearly defined by market value, age, and condition, where market value equates to some amount less than replacement costs less depreciation. Plaintiff South's Policy with Progressive states: "[p]ayments for loss to a covered auto, non-owned auto, or custom parts or equipment are subject to the following provisions ... [t]he actual cash value is determined by the market value, age, and condition of the vehicle at the time the loss occurs." This provision, however, is not a "definition" under the Policy; rather, if anything, renders the term "actual cash value" ambiguous under the contract. "Actual cash value" is not a "defined term" in the Policy. Defined terms under the Policy are printed in bold type face throughout the Policy and "actual cash value" is not in bold type face in the Policy; nor is it listed in the "General Definitions" section of the Policy. Policy 10, [DE 181-1]. Cf. Gov't Emps. Ins. Co. v. Gordon , 725 F. App'x 919, 921 (11th Cir. 2018) (noting that defined terms in the policy at issue were marked in bold and italics).
Even if the provision of the Policy specifying how ACV is determined, did equate to a definition of ACV under the Policy, Plaintiff's interpretation that ACV is equivalent to replacement costs less depreciation is still clearly reasonable considering that numerous Florida courts have equated actual cash value to market value and both terms to replacement costs less depreciation. See Trinidad v. Fla. Peninsula Ins. Co. , 121 So. 3d 433, 438 (Fla. 2013) ("actual cash value is generally defined as ‘fair market value’ or ‘[r]eplacement cost minus normal depreciation,’ where depreciation is defined as a ‘decline in an asset's value because of use, wear, obsolescence, or age.’ "); Goff v. State Farm Fla. Ins. Co. , 999 So. 2d 684, 690 (Fla. 2nd DCA 2008) ; Sos v. State Farm Mut. Auto. Ins. Co. , 396 F. Supp. 3d 1074, 1080 (M.D. Fla. 2019). Accordingly, a Policy provision stating that ACV is determined by market value, age, and condition does not clearly and unambiguously limit ACV to an amount less than replacement costs less depreciation when both market value and ACV have regularly been interpreted to mean replacement costs less depreciation. Further, interpreting the ACV and "market value" as equivalent to replacement costs less depreciation is reasonable. See Sos v. State Farm Mut. Auto. Ins. Co. , 396 F. Supp. 3d at 1080 (finding that under an auto insurance policy which did not contain a definition for ACV, "actual cash value" unambiguously meant replacement costs minus depreciation.).
Defining ACV as replacement costs less depreciation is further supported by Florida statutory law. One of the enumerated options for settling a total loss vehicle on the basis of actual cash value under § 626.9743(5)(a) is paying "a cash settlement based upon the actual cost to purchase a comparable motor vehicle ". See Fla. Stat. § 626.9743(5)(a) (emphasis added).
Defendant points to Pieczonka v. Progressive Select Ins. Co. , for the holding that for a policy where actual cash value is determined by considering the vehicle's "market value, age, and condition ... at the time the loss occurs", title, registration, and license fees are not included in the ACV. It appears that the district court in Pieczonka did not fully consider that under Florida law, market value can be synonymous with replacement costs less depreciation rather than explicitly and alternative to it. Pieczonka v. Progressive Select Ins. Co. , No. 19-CV-2965, 2020 WL 1930134, at *2 (N.D. Ohio Apr. 21, 2020), aff'd sub nom. Pieczonka v. Progressive Select Ins. Co. , 840 F. App'x 856 (6th Cir. 2021). The Court in Pieczonka also stated that including title, registration, and license fees in the ACV would negate any difference between a limit of liability providing for costs to replace a vehicle and the ACV for that vehicle. Id. This reasoning, however, ignores that the difference between the ACV and the replacement cost of a covered auto can be depreciation, which ACV takes into account, but replacement cost alone does not. See Sos , 396 F. Supp. 3d at 1080 (citing Goff , 999 So. 2d at 690). See also Am. Reliance Ins. Co. v. Perez , 689 So. 2d 290, 291 (Fla. 3rd DCA 1997) (reasoning that ACV includes a deduction for depreciation where replacement cost does not).
The Sixth Circuit, in an unpublished opinion, also found that under the plain terms of a policy which states that the ACV "is determined by three factors at the time of the loss: market value, age, and condition", the market value "plainly does not include the costs that [the insured] claims should be covered because those fees are not paid to the seller." See Pieczonka v. Progressive Select Ins. Co. , 840 F. App'x 856, 857–58 (6th Cir. 2021) (reasoning that market value, is "[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction.") (citing Black's Law Dictionary (11th ed. 2019)). The Sixth Circuit found that defining "market value" as "[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction" was consistent with Florida Law. See Pieczonka v. Progressive Select Ins. Co. , 840 F. App'x 856, 857 (6th Cir. 2021) (citing Am. Reliance Ins. Co. v. Perez , 689 So. 2d 290, 291 (Fla. 3rd DCA 1997) ) The Sixth Circuit, however, did not consider that "fair market value" synonymous with "[r]eplacement cost minus normal depreciation," which multiple Florida courts have held. See Trinidad v. Fla. Peninsula Ins. Co. , 121 So. 3d 433, 438 (Fla. 2013) ("actual cash value is generally defined as ‘fair market value’ or ‘[r]eplacement cost minus normal depreciation,’ where depreciation is defined as a ‘decline in an asset's value because of use, wear, obsolescence, or age.’ "); Goff v. State Farm Fla. Ins. Co. , 999 So. 2d 684, 689–90 (Fla. 2nd DCA 2008).
Considering the foregoing analysis, and the directive that ambiguous terms in insurance contracts should be liberally construed in favor of the insured, the Court finds that "actual cash value" under the Policy is equivalent to replacement costs minus depreciation. Reading ACV as meaning replacement cost less depreciation is consistent with the Policy provision stating that the ACV is measured by market value. This provision confirms that the Policy is determining ACV consistent with Florida common law, where ACV is "generally synonymous" with "market value" and takes into account depreciation. See Goff , 999 So. 2d at 689. Further, defining ACV, measured by "market value", as replacement costs less depreciation does not render the separate limit of liability of replacement costs redundant. Sos , 396 F. Supp. 3d at 1080 ("The court arrived at this definition by comparing actual cash value to replacement cost and explaining that the difference between the two terms is that actual cash value accounts for depreciation."). The key difference between the cost to replace a vehicle and the ACV of a vehicle is that actual cash value accounts for depreciation. Id.
After interpreting ACV as equivalent to replacement cost less depreciation, the Court must determine whether the fees Plaintiff seeks are included in these replacement costs. The relevant question in determining what charges are included in the replacement cost, as part of the ACV, is what costs the policyholder would be reasonably likely to need to incur in order to replace the covered auto. Mills v. Foremost Ins. Co. , 511 F.3d 1300, 1306 (11th Cir. 2008). In interpreting what charges were included in actual cash value defined as the " ‘cost to repair or replace’ ... less certain depreciation", the Eleventh Circuit reasoned that charges which the policyholder would be reasonably likely to need to incur in repairing or replacing the damaged property would be included. Id. at 1305–06. The Eleventh Circuit has also held that where a Policy does not condition payment on actual replacement of a covered auto, the costs included in the replacement cost would not be dependent on "whether the insured actually repairs or replaces the property." Id. at 1306.
ii. Dealer Fees as Part of ACV
Plaintiff claims that Defendant breached the Policy on its face and as amended to conform with § 626.9743(5)(a) by refusing to pay fees for profit and overhead charged by dealerships associated with preparing a car for sale and completing paperwork. According to Plaintiff, these fees which Plaintiff describes as fees "a majority of Class members would likely pay" to purchase a comparable vehicle should be included in the ACV calculation. Plaintiff describes these fees as "fees charged by dealers in connection with cash and retail installment contract sales of automobiles for the costs and profit to the dealer for items such as inspecting, cleaning, and adjusting vehicles and preparing documents related to the sale". Pl.’s Resp. Mot. Summ. J. 17–18, [DE 134]. These are the "type" of fees, Plaintiff states, that are required to be disclosed per Florida Statute § 501.976(11) and § 520.02(2). Dealer fees can be referred to as document fees, administrative fees, predelivery service charge, or processing fees. Id. at 18. Plaintiff contends that the relevant analysis for the Court is whether a high enough percentage of class members would likely have incurred dealer fees such that Progressive should have found it "reasonably likely" they would incur dealer fees.
Defendant argues that dealer fees are not mandatory, unlike sales taxes, which are specifically referred to in § 626.9743(5)(a). Further, Defendant contends that record evidence demonstrates that dealers only charge fees in approximately half of Florida vehicle sales and that when the fees are charged the amount of fees assessed varies significantly. The relevant question for the Court here is whether a policyholder would be reasonably likely to need to incur dealer fees in order to replace the covered auto. Mills v. Foremost Ins. Co. , 511 F.3d 1300, 1306 (11th Cir. 2008). In Mills v. Foremost Ins. Co. the Eleventh Circuit analyzed whether a general contractor's overhead and profit charges were included in the cost to repair or replace the plaintiff's property. 511 F.3d 1300, 1306 (11th Cir. 2008). The Eleventh Circuit noted that a contractor's overhead and profit were "well-recognized types of costs routinely charged, those items fall within the ‘cost to repair or replace.’ " Id. at 1305. However, the Circuit Court stated that a policyholder would not be able to obtain a payment for these costs that a general contractor charged "without showing that they would be reasonably likely to need a general contractor for the repairs in issue." Id. at 1306. The analysis established by the Mills court, then, was not whether a class of insureds were statistically more likely than not to choose to work with a general contractor who would charge them overhead and profit. The relevant question was whether "the policyholder would be reasonably likely to need a general contractor in repairing or replacing the damaged property in issue." Id. at 1306.
Of course, the present case is brought in the context of a total loss and based on an automobile insurance policy, rather than the partial loss and mobile home insurance, so it is not identical to the Mills case. The analysis conducted by the Mills court, however, is extremely informative. Applying the analysis in Mills to the present context, the Court concludes that the relevant question is not whether the class members as a whole would be statistically more likely than not to incur a dealer fee. Rather, the Court must analyze whether William South, as the policyholder, would be reasonably likely to need to incur a dealer fee to replace his covered auto.
Plaintiff has failed to point to any record evidence that would suggest South would be reasonably likely to need to incur a dealer fee to replace his covered auto. The record lacks sufficient probative evidence that South would be reasonably likely to need to incur such a fee to prevent summary judgment. Kernel Recs. Oy v. Mosley , 694 F.3d 1294, 1311 (11th Cir. 2012) ; Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005) (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931–32 (7th Cir. 1995) ) ("Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.").
On the issue of dealer fees, Plaintiff merely presents a series of statistics about the probability that any class member would have incurred a dealer fee in replacing their total loss vehicle. Plaintiff puts forth that 58.93% of all class members "could have been expected to purchase replacement vehicles from dealers" and that those class members, who like Plaintiff, had total loss vehicles that were eight years old or less, 72.23% could have been expected to purchase replacement vehicles from dealers. PRSMF ¶ 88, 89. Of those class members who purchased replacement vehicles from a dealer, Plaintiff's expert estimates that around 95% would have paid a dealer fee. PRSMF ¶ 96. Plaintiff's conclusion, however, that 95% of used cars sold in Florida from 2015-2019 were subject to dealer fees is speculative. Plaintiff's expert researched the stated policies of various dealerships in Florida by reading statements on their websites or calling the dealerships. See Stockton Class Cert. Decl.¶ 48, Tab 11 [80-5]. It appears Plaintiff's expert then assumed that each vehicle sold by the surveyed dealership between 2015-2019 was subject to the stated policy. Id. There is no evidence in the record that these dealerships’ policies had not changed over the given time period or that any vehicle sale made by any dealership in the expert's sample actually included a dealer fee. Further, Plaintiff's expert states that "many dealerships, particularly independent dealerships, were either not transparent about fees or characterized various dealer fees differently." See Stockton Class Cert. Decl. ¶ 48 [80-5]. Plaintiff did not produce any evidence that he incurred any dealer fees, other than those associated with the purchase of the Ford, between September 18, 2013 and today. DSMF ¶ 51, PRSMF ¶ 51. Plaintiff did not produce any evidence that he did in fact incur a dealer fee in purchasing a replacement vehicle.
Progressive is also not required to pay dealer fees as part of the ACV of a total loss vehicle under Florida statutory law. Section 626.9743(5)(a) states that sales tax, a mandatory charge under Florida law, is included in the "actual cost to purchase a comparable motor vehicle", however, the provision does not reference an optional charge, such as a dealer fee. Dealer fees are different in kind from sales tax. Sales tax must be charged under Florida statute; dealer fees are not mandated by any statute. Compare Fla. Stat. § 520.02 (defining "Cash price" in the context of Florida's Motor Vehicle Retail Sales Finance Act as the "price at which a seller, in the ordinary course of business, offers to sell for cash the property or service that is the subject of the transaction. At the seller's option, the term "cash price" may include the price of accessories, services related to the sale, service contracts, and taxes and fees for license, title, and registration of the motor vehicle. The term "cash price" does not include any finance charge.") with Fla. Stat. § 212.05 (requiring that every sale of a motor vehicle in Florida to be taxed at a 6 percent state sales tax rate).
The record evidence presented by Plaintiff fails to create a genuine issue of material fact that South would be reasonably likely to need to incur a dealer fee to replace his covered auto. Plaintiff has produced little, and often speculative, evidence that an insured in Florida would be reasonably likely to incur a dealer fee in purchasing a replacement vehicle. Plaintiff has produced no evidence that he, or any other class member, would be reasonably likely to need to pay a dealer fee in replacing his total loss vehicle nor what that dealer fee would be. Such is insufficient to defend against summary judgment. See Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005).
iii. The Inclusion of Title and License Fees in ACV
Plaintiff contends that Defendant breached the Policy and violated § 626.9743(5) by failing to pay title and license transfer fees totaling $79.85 when settling their total loss claims.
Defendant argues that because the Florida statutory law requires insurers to pay sales tax but does not mention title and license fees, it is clear the legislature did not intend to require an insurer to pay these fees. Defendant argues that § 626.9743(5) does not expand Progressive Select's limit of liability which is limited to the ACV. The ACV under the policy, Progressive argues is determined "based on the market value, age, and condition of the vehicle at the time the loss occurs." Finally, Defendant contends that it is significant that there is no evidence Plaintiff did in fact incur these transfer fees.
Courts in Florida have routinely found that insureds are reasonably likely to need to incur title transfer fees in replacing a vehicle, and, therefore, title transfer fees are included in the replacement cost under similar insurance policies. See e.g. Sos , 396 F. Supp. 3d at 1081. In Sos v. State Farm Mut. Auto. Ins. Co. , the court reasoned that "Florida law imposes mandatory sales tax and title transfer fees for the replacement of all vehicles, whether leased or owned. Fla. Stat. § 212.05 (sales tax); § 319.34 (title transfer fee). As such, these taxes and fees are necessarily included in the replacement cost of a total loss vehicle." Sos , 396 F. Supp. 3d at 1080.
In addition to title transfer fees, which courts in Florida have previously awarded, Plaintiffs seek a license plate or tag transfer fee, in the amount of $4.60, which Plaintiffs, and this Court here, refer to as license transfer fees.
This fee is also referred to as a registration transfer fee.
Under Florida statute every "person in charge" of a motor vehicle that is driven on the roads in Florida must register the vehicle with the state. Fla. Stat. Ann. § 320.02. The "registration license plate and certificate of registration" is issued to, and remains in the name of the, the owner of a vehicle. Fla. Stat. § 320.0609. When the owner replaces the vehicle, the registration license plate cannot be affixed to the new vehicle without filing an application for transfer and paying a transfer fee. Florida Stat. § 320.0609.
Accordingly, the Court finds that title transfer fees and registration transfer fees are costs an insured is reasonably likely to need to incur in replacing his vehicle, and therefore are components of the ACV under the Policy. Sos , 396 F. Supp. 3d at 1081. It is not relevant whether Plaintiff has proffered actual evidence that he has insured such fees. Further, § 626.9743(5) ’s statement that the actual cost to replace a total loss vehicle "include[es] sales tax, if applicable" does not amount to an exhaustive list of the costs that could be included in an ACV. See Glover v. Liberty Mut. Ins. Co. , 418 F. Supp. 3d 1161, 1170 (S.D. Fla. 2019). The plain text of the statute, namely the statute's use of the work "including" demonstrates that the Florida legislature did not intend exclude ancillary fees from the costs that could be included in the "actual cost to purchase a comparable motor vehicle". Id. (analyzing whether the plain text of § 626.9743(5) evidenced that "the Florida Legislature intended to exclude ancillary fees from "actual cost to purchase a comparable motor vehicle" "). That the statute specifically states sales tax is included in the statute does not necessarily mean other replacement costs are not.
Based on the foregoing analysis the Court finds that Progressive has breached the Policy by not paying Plaintiff South title and registration transfer fees.
Plaintiffs calculation of the title/license fees owed is made up of two sets of fees, title transfer fee totaling $75.25 and license transfer fees totaling $4.60.
Florida law imposes a title transfer fee totaling $75.25 for owned vehicles. Fla. Stat. § 319.32 (imposing a $70 fee for each original certificate of title or duplicate copy of a certificate of title, Fla. Stat. § 319.32(1), an additional $1 fee for materials used for security purposes, Id. , and a $4.25 transfer fee, Fla. Stat. § 319.32(2)(a) ). This $75.25 fee comports with the damages request of Plaintiff's and the damages courts have found in similar cases. See Sos , 396 F. Supp. 3d at 1081 ; Roth v. GEICO Gen. Ins. Co. , No. 16-62942-CIV, 2018 WL 3412852, at *5 (S.D. Fla. June 14, 2018), vacated, No. 16-62942-CIV-WPD, 2020 WL 5507208 (S.D. Fla. Aug. 27, 2020).
As to the registration transfer fee, Plaintiff's claim that there is no genuine issue of material fact regarding whether the registration transfer fee Plaintiff's would reasonably need to pay in replacing their vehicles was $4.60. Plaintiffs calculate this fee by adding the following charges and fees required under various Florida laws: (1) a $2.50 registration service charge fee ( Fla. Stat. § 320.04(1)(a) ); (2) a $1.00 air pollution control fee ( Fla. Stat. § 320.03(6) );(3) a Branch Fee of $0.50 ( Fla. Stat. § 320.04(1)(c) );(4) a $0.50 Florida Real Time Vehicle Information System fee ( Fla. Stat. §§ 320.03 & 320.03(5) ); and (5) a $0.10 Emergency Medical Services Trust Fund fee ( Fla. Stat. § 320.0801(1) ).
The amount of the minimum license fee is a question of interpretation of Florida law. Florida law states that, when the owner replaces a vehicle, the registration license plate cannot be affixed to the new vehicle without filing an application for transfer and paying a transfer fee of $4.50. Fla. Stat. § 320.0609(2)(a). See also Fla. Stat. Ann. § 320.0609(5)(a) ("If the replacement motor vehicle requires the same amount of license tax under s. 320.08 as the original vehicle to be replaced, no additional tax other than the transfer fee of $4.50, accompanied by an application for transfer on a form supplied by the department, is required to transfer or exchange a registration license plate for use on a replacement vehicle for the duration of a current registration period and to issue a new certificate of registration."). Accordingly, the Court finds that the amount of registration transfer fees Plaintiff is reasonably likely to need to incur under Florida law is $4.50.
The EMS fee Plaintiff seeks is articulated in Fla. Stat. § 320.0801. Section 320.0801, states that the "tax shall be paid to the department or its agent upon the registration or renewal of registration of the vehicle" not upon the transfer of a vehicle. Accordingly, the Court finds that the EMS fee is not properly included in the license transfer fee as Plaintiff calculates it.
Accordingly, the Court finds that there is no genuine issue of material fact that Progressive breached the Policy by failing to pay Plaintiff $79.75 in title and registration transfer fees.
C. Plaintiff's Claim for a Declaratory Judgment
Plaintiff also seeks a declaratory judgment that the Policy covers title and license transfer fees and dealer fees and does not allow use of WCTL.
The Court notes that Plaintiff only has standing to seek declaratory relief because he also brings a breach of contract claim for money damages. Signor v. Safeco Ins. Co. of Illinois , No. 0:19-CV-61937-WPD, 2020 WL 6271169, at *3 (S.D. Fla. Mar. 23, 2020).
Based on the foregoing analysis the Court finds that the Policy does require Progressive to pay title and license transfer fees, does not require Progressive to pay dealer fees, and does permit Progressive to use the WCTL system.
IV. CONCLUSION
Based on the foregoing analysis the Court finds that Plaintiff has demonstrated that title transfer fees and license transfer fees are included in the actual cash value of Plaintiff's (and the class members’) total loss vehicles under the Policy. Accordingly, Progressive's failure to pay total loss insureds transfer fees in the amount of $79.75 when settling those claims based on the actual cash value of the covered auto constituted a breach of contract.
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff's for Summary Judgment [DE 175] is GRANTED in part;
2. Defendant's Motion for Summary Judgment [DE 171] is DENIED in part ;
3. Plaintiff is entitled to damages for unpaid title and license transfer fees in the amount of $79.75.
4. Class members are entitled to damages in the amount of $79.75 in title and license transfer fees.
5. The Parties shall file a proposed schedule for calculating damages in this matter, any motions for attorney's fees, and filing a proposed final judgment on or before September 10, 2021.
6. The Court will refer the matter to Magistrate Judge Becerra to oversee the process of calculating the damages in accordance with this Order.
7. The Clerk is directed to ADMINISTRATIVELY CLOSE this case and DENY as moot all pending motions.
DONE AND ORDERED in Chambers in Fort Lauderdale, Broward County, Florida this 30th day of August, 2021.