Opinion
Civil Action CV-20-378
05-05-2021
ONSITE AUTO GLASS, as assignee of Richard Cooper, Plaintiff v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, Defendant
Plaintiff-John Lagrow, Esq. Defendant-Samuel Johnson, Esq.
Plaintiff-John Lagrow, Esq.
Defendant-Samuel Johnson, Esq.
ORDER
THOMAS D. WARREN JUSTICE
Before the court is a motion by defendant Interinsurance Exchange of the Automobile Club ("AAA") for summary judgment. 'This case presents the same issues as Onsite Auto Glass v. Inter insurance Exchange of the Automobile Club, CV-20-375, and involves whether plaintiff Onsite Auto Glass, as assignee of Richard Cooper, is entitled to reimbursement from AAA as Cooper's auto insurer for Onsite's repair of auto glass damage on Cooper's insured vehicle.
Summary Judgment
As stated in the companion case, summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements, E.g., Mahar v. StoneWood Transport, 2003 ME 63 ¶ 8, 823 A.2d 540. The facts must he considered in the light most favorable to the non-moving party. Id., Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Kenny v. Department of Human Services, 1999 ME 158 ¶ 3, 740 A.2d 560.
In this case the record is somewhat confused because AAA filed an initial statement of material facts (SMF) pursuant to Rule 56(h)(1) consisting of 15 paragraphs. Pursuant to Rule 56(h)(2) Onsite responded by filing a statement of facts in response to AAA's SMF which included a statement of additional material facts (SAMF) consisting of 17 paragraphs. Pursuant to Rule 56(h)(3) AAA then filed a Reply Statement of Material Facts (Reply SMF) responding to 19 factual assertions. The discrepancy between the 19 paragraphs in AAA's Reply SMF and the 17 paragraphs in the SAMF filed by Onsite suggests either (1) that counsel for Onsite sent a different draft of its SAMF to counsel for AAA than the version filed with the court or more likely (2) that, because of the similarity in the cases, counsel for AAA mistakenly recopied AAA's Reply SMF from CV-20-375, in which Onsite's SAMF consisted of 19 paragraphs.
Because it is nevertheless apparent from the record that the essential facts are undisputed and that this case can be decided on the same basis as the companion case in CV-20-375, the court will ignore the above discrepancy and rely on the Onsite's SAMF in ruling on the pending motion.
Undisputed Facts
On or about August 17, 2018, Onsite was contracted to perform auto glass replacement services on a vehicle owned by Richard Cooper, which was insured with an automobile policy issued by AAA. Onsite SAMF ¶ 1; AAA SMF ¶ 2 (admitted). On that same date Cooper signed two documents identical to those signed by Bill Ciccarone in CV-20-375. The first was a document authorizing AAA to make payment directly to Onsite and, if necessary, authorizing Onsite to invoke the appraisal clause in his insurance contract. The second was an invoice stating in small print, "Subject to the completion of work, I assign any claim that I have under my insurance policy to recover, and authorize my insurance company to pay ONSITE AUTO GLASS the balance due." Onsite SAMF ¶ 2.
Onsite's Statement of Additional Material Facts (SAMF) and the accompanying affidavit of Betty Jo Cash refer to these documents as an "assignment of benefits." Onsite SAMF ¶ 2, citing Cash Affidavit ¶ 13. The actual documents are annexed to the Cash affidavit as Exhibit A.
Onsite completed the repair work and submitted an invoice to AAA by email on August 20, 2018 seeking $ 1, 041.26, the amount that it stated it was owed for the repair work, minus Cooper's deductible. Onsite SAMF ¶ 3. The invoice included the statement signed by Cooper authorizing AAA to make payment directly to Onsite, authorizing Onsite to invoke the appraisal clause in the insurance contract, and assigning to Onsite any claim Cooper had to recover under his insurance policy. Ex. A to Affidavit of Betty Jo Cash.
Exactly as in CV-20-375, on September 10, 2018, Onsite received a fax from AAA stating, "AAA will no longer be issuing payments to claims rec'd after repairs completed per policy language." Onsite SAMF ¶ 11.
The AAA fax attached to the Cash affidavit in this case is identical to the AAA fax attached to the Cash affidavit in CV-20-375 and even bears the same date and time of transmission right down to the second ("8:16:58 AM"). For purposes of summary judgment the court will assume that the same fax was sent to respond to the invoices at issue in both CV-20-375 and the instant case or that identical faxes were sent.
The AAA policy in this case contains the same provisions discussed in the court's summary judgment order issued in CV-20-375.
Discussion
The court's order granting summary judgment to AAA in CV-20-375 is attached hereto and is incorporated by reference. Just as in CV-20-375, it is undisputed in this case that AAA first received notice of the claim after the repairs had been performed and was therefore deprived of any opportunity to inspect the vehicle and appraise the damage. For the same reason -set forth in the court's summary judgment order in CV-20-375, therefore, the court concludes that Onsite is not entitled to payment in this case based on the failure to provide notice before repairs were made.
The entry shall be:
The motion for summary judgment by defendant Interinsurance Exchange of the Automobile Club is granted and the complaint is dismissed. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).