Onsite Auto Glass v. Interinsurance exchange of the Automobile Club

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-20-378

ONSITE AUTO GLASS, as assignee of
Richard Cooper,

Plaintiff

V. ORDER

INTERINSURANCE EXCHANGE OF Plaintiff-John Lagrow, Esq.
THE AUTOMOBILE CLUB,
Defendant-Samuel Johnson, Esq.
Defendant

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.

Interinsurance 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. Stone Wood Transport, 2003 ME 631 8, 823 A.2d 540. The facts must be 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 ,i 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)(l) 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 11 paragraphs. Pursuant to Rule

56(h)(3) AAA then filed a Reply Statement of Material Facts (Reply SMF) responding to l2

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 ,i 1; AAA SMF ,i 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

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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. 1

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. 2

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

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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 12, citing Cash Affidavit 1
13, The actual documents are annexed to the Cash affidavit as Exhibit A

2 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.

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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).

Dated: May ~ , 2021
~fk. '
Thomas D. Warren
Justice, Superior Court

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-20-375

ONSITE AUTO GLASS, as assignee of
Bill Ciccarone,

Plaintiff

V. ORDER

INTERINSURANCE EXCHANGE OF
THE AUTOMOBILE CLUB,

Defendant

Before the court is a motion by defendant Interinsurance Exchange of the Automobile Club

("AAA") for summary judgment. This case involves whether plaintiff Onsite Auto Glass, as

assignee of Bill Ciccarone, is entitled to reimbursement from AAA as Ciccarone's auto insurer for

Onsite's repair of auto glass damage on Ciccarone's insured vehicle.

In addition to this case, there is a companion case presenting the same issues. Onsite Auto

Glass, as assignee of Richard Cooper v. Interinsurance Exchange of the Automobile Club, CV-

20-3 78, in which a motion for summary judgment is also pending.

Like many cases, this case has been delayed by the pandemic. The motion for summary

judgment has been under advisement since January 7, 2021, but the court has had almost no time

to devote to civil proceedings due to the need to focus on criminal cases.

Summary Judgment

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 1s 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. Stone Wood Transport,

2003 ME 63 ~ 8, 823 A.2d 540. The facts must be considered in the light most favorable to the

non-moving party. Id. Thus, for purposes of ~ummary 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 there are some factual disputes because AAA originally contended that the

first notice it received of Onsite's claim was when it was served with the complaint. Onsite,

however, offered evidence that it had sent an invoice to AAA shortly after the repairs were

performed. The court will rely on Onsite's evidence in ruling on the pending motion. AAA

contends that, even accepting Onsite's evidence, AAA is entitled to summary judgment.

Undisputed Facts

On or about August 1, 2018, Onsite was contracted to perform auto glass replacement

services on a vehicle owned by Bill Ciccarone, which was insured with an automobile policy issued

by AAA. Onsite Statement of Additional Material Facts filed December 18, 2020 (Onsite SAMF)

~ 1; AAA Statement of Material Facts dated November 30, 3020 (AAA SMF) ~ 2 (admitted). On

that same date Onsite repaired the damaged glass and Ciccarone signed a document authorizing

AAA to make payment directly to Onsite and, if necessary, authorizing Onsite to invoke the

appraisal clause in his insurance contract. Onsite SAMF ~~ 2-3. He also signed an invoice stating

in small print, "Subject to the completion of work, I assign any claim that I have under my

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insurance policy to recover, and authorize my insurance company to pay ONSITE AUTO GLASS

the balance due." 1

Also on August 1, 2018 Onsite submitted an invoice to AAA by email seeking$ 520.03,

the amount it stated it was owed for the repair work minus Ciccarone's deductible. Onsite SAMF

,i 3. The invoice included the statement signed by Ciccarone authorizing AAA to make payment

directly to Onsite, authorizing Onsite to invoke the appraisal clause in his insurance contract, and

assigning any claim Ciccarone had to recover under his insurance policy to Onsite. Ex. A to

Affidavit of Betty Jo Cash.

Having received no response, Onsite resubmitted the invoice for the work done on

Ciccarone' s vehicle to AAA by fax on September 10, 2018. Onsite SAMF ,i 11. In response, 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 ,i 12.

A copy of Ciccarone's AAA policy is annexed to the affidavit of Adrienne McCabe. It

provides in. Part IV (collision and comprehensive coverage) that AAA will pay for direct and

accidental physical loss to Ciccarone's vehicle. AAA SMF ,i 5 (admitted); Policy page El. It also

contains an appraisal provision that if AAA and the insured do not agree on the amount of loss,

either party may make a written request for appraisal. In that event, each party is to 'choose an
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appraiser and the appraisers shall establish the amount of the loss with any disagreements to be

submitted to an umpire chosen by the appraisers. AAA SMF ,i 5 (admitted); Policy page E4.

The policy further provides that after an accident or loss the insured shall promptly notify

AAA and that the insured shall

1 Onsite's SAMF and the accompanying affidavit of Betty Jo Cash refer to these documents as an

"assignment of benefits." Onsite SAMF ,i 2, citing Cash Affidavit ,i 13. The actual documents are
annexed to the Cash affidavit as Exhibit A.

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Allow us to:
(1) inspect and appraise any vehicle insured under PART IV
[collision and comprehensive cobverage] and
(2) get any estimates we need;
Before a vehicle can be repaired of disposed of.

AAA SMF ,i 6 (admitted); Policy pages Fl and F2.

Discussion

AAA disputes whether there was a proper assignment by Ciccarone of his rights under the .

policy and points to language in the policy stating that "this policy or any interests in it" may not

be assigned without AAA's consent. This argument was first raised in AAA's reply

memorandum,2 and in any event the court agrees with Onsite that Ciccarone did not assign the

policy to Onsite but merely assigned to Onsite the right to any payment for the August 1, 2018

glass repairs that Ciccarone was entitled to receive.

The dispute on this case therefore centers on whether adequate notice of the claim was

given to AAA in compliance .with the policy. Onsite contends that it gave the requisite prompt

notice by invoicing AAA on August 1, 2018. For purposes of summary judgment, the court will

accept that this constituted notice under the policy. However, it is undisputed that this notice was

only given after the repairs had been completed, which precluded AAA from inspecting and

appraising the vehicle before the vehicle was repaired.

The interpretation of an insurance contract is a question of law. Jack v. Tracy, 1999 ME 13

~ 8, 722 A.2d 869. Policy language is liberally construed in favor of an insured and any ambiguity

in the contract is resolved against the insurer. York Insurance Group v. Van Hall, 1997 ME 230 ~

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AAA expressly reserved this argument in its initial memorandum but argues that Onsite raised the
validity of the assignment in its opposition.

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8, 704 A.2d 366. 3 Nevertheless, interpretation of an insurance contract requires an evaluation of

the policy in its entirety, and all provisions must be considered together. Maine Drilling & Blasting

Inc. v. Insurance Co. a/North America, 665 A.2d 671,675 (Me. 1995).

In this case the court concludes that the policy must be interpreted to require that the notice

to AAA be given before any repairs are unde1iaken. Otherwise the provision that the insured must

allow AAA to inspect and appraise an insured vehicle "before a vehicle can be repaired" would be

deprived of any effect.

Faced with claims that an insurer was not given a required notice under an insurance

contract, the Law Court has held that to escape liability the insurer must show ( 1) that the notice

provision in the insurance contract was in fact breached and (2) that the insurer was prejudiced by

the insured's delay. Ouellette v. Maine Bonding & Casualty Co., 495 A.2d 1232, 1235 (Me. 1985).

On the first prong of the Ouellette test, it follows from the preceding discussion that the notice

provision in the policy was breached in this case. 4

Turning to the second prong of Ouellette - whether the insurer was prejudiced by the

absence of notice - there is no dispute in this case that AAA was deprived of its contractual right

to inspect and appraise the damage to the auto glass before repairs were unde1iaken. The court

further concludes that AAA was prejudiced thereby. In Knight v. Maine Mutual Fire Insurance

Co., 651 A.2d 838 (Me. 1994) - a case decided after Ouellette - the Law Court observed that

courts, in liberally construing notice requirements in favor of insureds, have found adequate notice

3 Onsite does not contend that the AAA policy is ambiguous.

4 This is true even though, for purposes of the pending motion, the court accepts Onsite's argument that it
was assigned only the right to receive payment under the policy and was not assigned any of Ciccarone's
duties under the policy. Following this logic, Ciccarone - not Onsite -was required to give the required
notice before repairs were undertaken. However, on this record, it is undisputed that he did not do so.
Onsite's right to receive payment from AAA depends on whether any such payment was due - which
AAA contests based on the absence of adequate notice.

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when the notice given was "sufficient to satisfy the purpose of giving the insurer an adequate

opportunity to investigate." 651 A.2d at 839. In this case, however, the notice given was not

sufficient to give AAA an opportunity to inspect, evaluate, or investigate before the repairs were

made.

Insurer prejudice has been found to exist where one or more of the purposes of the notice

provision have been frustrated and specifically has been found where, because of a failure of

notice, the insurer. was unable to properly investigate a claim. See Suter, Insurer Prejudice:

Analysis of an Expanding Doctrine in Insurance Coverage Law, 46 Me. L. Rev. 221, 223-24

(1994). In the absence of notice before repairs were made, an insurer would not have to any ability

to challenge padded estimates or fraudulent claims. Accordingly, the court concludes that, based

on the undisputed facts, Onsite is not entitled to payment based on the failure to provide notice

before repairs were made.

There is one other issue that the court would describe as lurking in the record in this case.

The record suggests that before AAA declined to pay Onsite's invoice in this case, it may have

previously been willing to make payments on claims received after repairs were completed. 5 The

court has not considered that issue for two reasons. The first is that for purposes of summary

judgment the court is limited to the facts set fmih in the pmiies' Rule 56(h) statements, and Onsite's

SAMF does not include any statement that AAA has previously paid invoices for repairs that were

performed before any notice was sent to AAA. 6 The second and more important reason is that

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Thus the fax response from AAA when Onsite resubmitted its invoice on September 10, 2018 stated that
AAA would "no longer" issue payments on claims received after repairs had been completed.

6 Onsite's SAMF asserts only that its August 1, 2018 email was sent to the email address which Onsite

had used to submit p1ior claims, that Onsite regularly invoices AAA for repair work perfo1med on AAA-
insured vehicles, and that AAA has routinely accepted and processed claims submitted to that email
address in the past. Onsite SAMF 114, 8-10. All of those statements are accepted as true for purposes of

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Onsite has not argued or presented any authority that AAA was legally obligated by past practice

to pay the Ciccarone invoice without prior notice of the repairs.

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).

Dated: May3_, 2021

Thomas D. Wanen
Justice, Superior Court

summary judgment but they do not assert or constitute evidence that AAA, in the past, has paid claims for
which it did not receive notice until after the repairs had been completed.

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