DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

GEICO GENERAL INSURANCE COMPANY,

Appellant/Cross-Appellee,

v.

SUPERIOR AUTO GLASS OF TAMPA BAY, INC. as Assignee of MATTHEW 

DICK,

Appellee/Cross-Appellant.

No. 2D21-2833

 January 17, 2024

Appeal from the County Court for Hillsborough County; Joelle Ann Ober, 

Judge.

Lindsey R. Trowell, Ariane J. Smith, and Chloe A. Orta of Smith, 

Gambrell & Russell, LLP, Jacksonville, for Appellant/Cross-Appellee.

Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elliget, P.A., 

Tampa; David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; 

Anthony T. Prieto of Morgan & Morgan, P.A., Tampa; and Christopher P. 

Calkin and Mike N. Koulianos of The Law Offices of Christopher P. 

Calkin, P.A., Tampa, for Appellee/Cross-Appellant.

ATKINSON, Judge.

GEICO General Insurance Company appeals the final judgment— 

entered notwithstanding a jury verdict in favor of GEICO—awarding 

Superior Auto Glass of Tampa Bay, Inc., $438.72 as damages for GEICO 

breaching the insurance contract between GEICO and its customer, 
2

Matthew Dick, who assigned his benefits to Superior. The trial court 

concluded that GEICO presented no evidence from which a jury could 

find GEICO proved its defenses of waiver and that it paid the prevailing 

competitive price for the windshield replacement, which undisputedly 

was a covered loss under the policy. Superior cross-appeals requesting 

that we reinstate either of the two county court final summary judgments 

reversed by the circuit court in prior appeals1 or that we remand for a 

new trial.

On the main appeal, we reject GEICO's arguments regarding its 

waiver defense and its Florida Motor Vehicle Repair Act claim without 

further comment. But because it cannot be said that no view of the 

evidence, or inferences made therefrom, could support a verdict for 

GEICO on its defense that it paid Superior the prevailing competitive 

price for the windshield replacement, we conclude that the trial court 

erred by granting Superior's motion for judgment in accordance with its 

previous motion for directed verdict. On the cross-appeal, we reject 

Superior's request to reinstate either of the prior final summary 

judgments, as that would amount to a second appeal. We do not reach 

the merits of Superior's request for a new trial because the trial court 

reasoned that the motion was moot and therefore never ruled on the 

merits of the motion. Therefore, we reverse the trial court's final 

judgment in favor of Superior and remand for the trial court to enter 

1 Prior to January 1, 2021, circuit courts had jurisdiction over 

appeals from county court orders and judgments. See Davis v. Clark, 

326 So. 3d 781, 782 n.1 (Fla. 2d DCA 2021) ("[T]he legislature amended 

section 26.012(1), Florida Statutes (2020), to eliminate circuit court 

jurisdiction over appeals of county court orders and judgments, effective 

January 1, 2021." (citing ch. 20-61 § 3, Laws of Fla.)).
3

judgment in favor of GEICO in accordance with the jury's verdict and to 

rule on the merits of Superior's motion for new trial.

Background

On February 17, 2015, Superior replaced the windshield on Mr. 

Dick's 2010 Ford Escape. Superior sent GEICO, Mr. Dick's insurer, an 

$818.60 invoice for the windshield replacement pursuant to an 

assignment of insurance benefits that Mr. Dick signed. Included in this 

amount was the cost of the windshield glass at $442.05, labor of 2.6 

hours at $85.00 per hour, and two fast-cure urethane kits at $51.00 

each, in addition to tax of $53.55. 

Linda Rollinson, the owner of Superior, explained at trial that she 

charges customers based on the recommendations issued by the 

National Auto Glass Specifications (NAGS), which is updated several 

times throughout the year. She testified that NAGS is the industry 

standard, relied upon by repair facilities as well as insurance companies. 

Rollinson, who serves on several national windshield-related boards and 

committees, provided the following testimony:

NAGS will provide every windshield that will fit that specific 

year, make, and model. It will provide what is needed for a 

windshield replacement. It will provide the standard labor 

hours to replace that windshield. And it will tell you whether 

you need one or two, or one and a half, two and a half kits of 

urethane.

NAGS does not suggest an hourly labor rate, just the number of hours to 

complete the replacement. Rollinson sets Superior's prices at 100% of 

the NAGS suggested rates. 

GEICO also utilizes NAGS in setting pricing parameters for the 

approximately 100,000 to 150,000 windshield claims it processes each 

year in Florida. GEICO's corporate representative, Susan Eberling, 

testified that 
4

for windshield replacement[,] it is 50 percent off the NAGS list 

price[,] it is $40 per hour for labor and the number of labor 

hours is assigned by NAGS[,] and the kits are generally $15 

per kit for your standard kit and those are the usual 

components that are necessarily for windshield replacement.

GEICO paid Superior $379.88 in accordance with those parameters. 

Both Superior and GEICO contend that their price constituted the 

"prevailing competitive price," which, under the insurance policy with Mr. 

Dick, is the limit of liability for the loss: 

The limit of our liability for loss:

1. Is the actual cash value of the property at the time of 

the loss;

2. Will not exceed the prevailing competitive price to 

repair or replace the property at the time of loss, or 

any of its parts, including parts from non-original 

equipment manufacturers, with other of like kind and 

quality and will not include compensation for any 

diminution of value that is claimed to result from the 

loss. Although you have the right to choose any 

repair facility or location, the limit of liability for repair 

or replacement of such property is the prevailing 

competitive price which is the price we can secure 

from a competent and conveniently located repair 

facility. At your request, we will identify a repair 

facility that will perform the repairs or replacement at 

the prevailing competitive price.

(Emphasis in original.). GEICO admitted that a covered loss occurred. 

The sole dispute at trial was the amount GEICO was required to pay 

Superior for the windshield replacement under the terms of the policy. 

Among other things, GEICO asserted as affirmative defenses (1) 

that it "paid in full the prevailing competitive price for the repair at issue 

and [Superior's] invoice exceeds the prevailing competitive price" and (2) 

that Superior "intentionally relinquished any right to an amount in 

excess of the amount paid." The county court twice granted final 
5

summary judgment in favor of Superior, concluding that Superior's price 

did not exceed the prevailing competitive price. The circuit court, sitting 

in its appellate capacity, reversed each of the judgments. 

In the first reversal, the circuit court concluded that the "prevailing 

competitive price" was a question of fact and held that the test for that 

determination "is what the service would cost in a competitive market in 

a normal, arms' length non-insurance transaction." Gov't Emps. Ins. Co. 

v. Superior Auto Glass of Tampa Bay, Inc. (Dick I), 26 Fla. L. Weekly Supp. 

876a (Fla. 13th Cir. Ct. Mar. 27, 2018). In the second reversal, the 

circuit court concluded that Superior's evidence did not meet its 

summary judgment burden to establish the prevailing competitive price 

under the test set forth in Dick I and, therefore, that genuine issues of 

material fact remained. Gov't Emps. Ins. Co. v. Superior Auto Glass of 

Tampa Bay, Inc. (Dick II), 28 Fla. L. Weekly Supp. 785a (Fla. 13th Cir. Ct. 

Oct. 2, 2020). In response to what Superior labeled a "protective cross 

appeal" that asked the circuit court "to determine which party bears the 

burden of proof," the circuit court in Dick II also concluded, "Where 

GEICO effectively admitted coverage while relying on its policy language 

as a defense to further liability, . . . GEICO, not Superior, will have the 

burden to show that GEICO's payment is consistent with the policy's 

prevailing competitive price." Id.

In its opening statement at trial, GEICO acknowledged Dick II's 

holding as to the burden of proof. GEICO called Ms. Eberling, who 

testified that GEICO was "very much aware of the claims we're receiving 

and the amounts that we're paying, so we're aware that we can secure a 

price that does not exceed 50 percent of the NAGS price." Ms. Eberling 

said that GEICO has its finger on the pulse of the market given the high 

volume of windshield claims that it processes each year. She explained 
6

that GEICO transacts business with "hundreds of shops" in a given year 

for windshield claims, some of which are network, affiliate shops and 

others are nonnetwork, nonaffiliate shops. Network, affiliate shops are 

members of an insurance network that GEICO selects for windshield 

claims and who bill GEICO at or below its pricing parameters. 

Nonnetwork, nonaffiliate shops, on the other hand, are selected by 

GEICO's policyholders, are not members of any insurance network, and 

have no contractual relationship with GEICO.2 When asked whether 

there are more nonaffiliate shops that bill GEICO at its pricing 

parameters than do not, Ms. Eberling responded, "Yes." 

With respect to the competency of the nonaffiliate repair shops 

selected by the insureds, Ms. Eberling explained that

generally after their claim, there are surveys that we do. . . . 

[W]e do surveys with our customers to determine if there's 

any issues and so forth so they can report issues with any 

shop and certainly the policy holders generally do not hesitate 

to contact us to let us know if they're unhappy with a given 

shop.

She was asked whether "GEICO [would] hear from their insured if they 

were unhappy with the service they received," and she answered 

affirmatively. When asked whether "there [is] any other way that GEICO 

can identify whether there is a shop that doesn't perform competent 

work, an independent shop, in their claims information," she replied, "We 

might see an instance if there was perhaps multiple replacements on the 

same claim." She was asked, "And based on your testimony about the 

information GEICO would have about these shops of choice, do you have 

any reason to believe that the independent shops that transacted 

2 Throughout the record, the parties interchangeably refer to these 

shops as "nonnetwork" shops, "nonaffiliate" shops, or "independent" 

shops, all three of which appear throughout this opinion.
7

business with GEICO in or around this claim were not competent?" She 

replied, "No." 

During cross-examination, Ms. Eberling reiterated GEICO's 

payment parameters: "50 percent off the NAGS list price for the 

windshield, $40 per hour for labor, and the kits are $15 per kit, and 

there's a . . . 20 percent discount on the molding." These parameters 

constitute "our limit of liability, so that's the ceiling of what we pay." And 

she confirmed that when an insured selects a nonaffiliate shop, GEICO 

pays the majority of the claims to nonaffiliate shops at these parameters. 

She was unaware of the factors that led to the parameters but testified, 

"Certainly, in 2015, I know that we could secure an amount that does 

not exceed 50 percent off the NAGS windshield list price."

To further show that GEICO could secure a price at its parameters, 

GEICO attempted to introduce a claims history spreadsheet into evidence 

that contained various data points for its windshield claims in 2015. The 

spreadsheet was limited to claims involving nonnetwork repair shops and 

showed, among other things, the amount billed by the shop and the 

amount paid by GEICO. GEICO explained: "We're going to present 

evidence of what GEICO pursuant to our policy secures in the market 

. . . . [T]he standard here is GEICO transacts business at its parameters 

with hundreds of shops and that's what [the spreadsheet] shows." 

GEICO expounded that the spreadsheet showed transactions in which 

nonnetwork repair shops "sent GEICO a bill at GEICO's prevailing 

competitive price and GEICO paid at that prevailing competitive price." 

In using the term "prevailing competitive price," GEICO clarified that Ms. 

Eberling would testify the amounts billed and paid as shown on the 

spreadsheet were in accordance with GEICO's pricing parameters. 
8

Without allowing a proffer and based solely on argument of 

counsel, the trial court excluded the spreadsheet from evidence. 

Well, see, I just -- I don't feel comfortable with this. I feel it is 

too misleading, too confusing, and [the jury is] not going to 

know what to do with this, even based on testimony, that 

you're not provided with it. I just don't think they're going to 

know what to do with this, and I just don't see it being 

relevant, I really don't. So that's my ruling . . . .

The trial court reserved ruling on the admissibility of testimony about the 

information in the spreadsheet. 

Later, GEICO requested reconsideration and proffered testimony 

from Ms. Eberling to establish that the spreadsheet is GEICO's business 

record. The trial court agreed that Ms. Eberling authenticated the 

document and that it was GEICO's business record but reiterated its 

prior ruling, explaining that "the information is so monumentally 

misleading and confusing to the jury[,] . . . [and] that outweighs its 

probative value. . . . [I]t's not relevant because . . . the confusion and the 

misleading outweighs the probative value."

GEICO then called Dr. Jim McClave, an econometrician who 

applies statistical analyses to economic issues. Superior objected to the 

admissibility of his testimony because it was based upon a review and 

analysis of GEICO's claims data that the trial court had excluded from 

evidence. GEICO proffered his testimony, following which the trial court 

allowed him to testify.

Dr. McClave "concluded that GEICO's payments for windshield 

replacements according to the data[] are fully consistent with prevailing 

competitive prices." He utilized GEICO's claims history data, focusing on 

the 115 nonaffiliate shops located in the Tampa Bay area that did 

business with GEICO in 2015. He limited his analysis to these 

nonaffiliate, "independent" shops because they "had no affiliation or 
9

relationship with GEICO" and, as such, "no obligation to take the work." 

He analyzed 6,500 transactions with those limitations, comparing the 

amounts the shops invoiced with the amounts GEICO paid. If the figures 

matched within 5%, he concluded that GEICO was able to secure a price 

at its parameters based on his understanding that GEICO typically pays 

according to those parameters.3 In other words, if the amount billed by 

the shop and paid by GEICO matched, he opined that "there is strong 

reason to believe that they were both using the same formula." 

According to his calculations, 55% of the independent shops in the 

Tampa Bay area had their invoices paid in full 90% of the time. 

Superior, in contrast, "consistently invoiced at significantly higher 

amounts than what they got paid." Dr. McClave concluded:

[I]n my opinion, GEICO is indeed able to secure work at 

conveniently located locations independent shops that don't 

have to take the work at prevailing competitive prices[,] or we 

wouldn't see, in my opinion, we wouldn't see thousands of 

transactions taking place right at the GEICO price. It 

wouldn't make rational sense. If shops are losing money or 

anticipating losing money if they take GEICO work, they have 

a choice. They don't have to take GEICO work. And yet, 

thousands of times they are taking the work, invoicing, 

understanding exactly what they're going to get paid, and to 

me that is strong economic evidence that GEICO is indeed 

paying at a prevailing competitive price.

. . . .

. . . [I]f a shop doesn't have to take the work and looks at that 

invoice and says, "I can't do it for that price," they could turn 

it down. But if the shop says I'll replace the windshield 

knowing that that is what I'm going to get paid and actually 

invoices at that [price], then to me that is an arm's-length 

3 Dr. McClave included transactions in his calculations in which 

the invoiced and paid amounts matched within 5% because he 

understood there were variables that could explain those small 

differences, such as discounts for early payments or electronic payments.
10

transaction. Willing buyer, willing seller that neither of which 

had to do the work or pay for the work.

At the close of GEICO's case-in-chief, both Superior and GEICO 

moved for a directed verdict. The trial court denied both motions, 

providing, in pertinent part, the following explanation: 

I feel like all these things that you're arguing to the [c]ourt 

regarding the evidence presented in the trial can certainly be 

argued to the jury. I believe both sides have presented 

sufficient evidence to let the trier of fact decide their position 

on the case and certainly narrow down the issues for them as 

best we could and all that is happened in the case. But I feel 

all motions for directed verdict should be denied and the jury 

as the trier of fact should decide this matter. 

The jury returned a verdict for GEICO on its defenses of payment of the 

prevailing competitive price and waiver. 

Superior filed a posttrial "Motion to Set Aside Verdict and for 

Judgment in Accordance with Motion for Directed Verdict, or for New 

Trial." The court granted the motion in part, concluding that GEICO 

presented no admissible evidence upon which the jury could rely to find 

that GEICO paid Superior the prevailing competitive price. The court 

cited two reasons: (1) there was no evidence that the amounts paid by 

GEICO in the pricing data utilized by its expert statistician were based 

on an open, competitive market because they were based entirely upon 

GEICO's claims and use of GEICO's pricing formula and (2) there was no 

evidence that GEICO's pricing data was based on "competent" repair 

facilities. The court set aside the jury verdict and entered judgment in 

favor of Superior for $438.72, representing the difference between what 

Superior billed and GEICO paid. Given its decision to enter judgment in 

Superior's favor, the court noted that Superior's motion for new trial was 

rendered moot.
11

Analysis

GEICO contends that the trial court erred by entering judgment in 

Superior's favor in accordance with its motion for directed verdict, an 

issue we review de novo. See Martinez v. Lobster Haven, LLC, 320 So. 3d 

873, 880 (Fla. 2d DCA 2021) ("We review de novo the trial court's 

decision to grant the motion for judgment in accordance with the motion 

for a directed verdict."). "[T]he rules governing a posttrial motion for 

judgment in accordance with a previous motion for directed verdict are 

the same as a motion for directed verdict at the close of the evidence 

. . . ." Cooper Hotel Servs., Inc. v. MacFarland, 662 So. 2d 710, 712 (Fla. 

2d DCA 1995) (quoting Greene v. Flewelling, 366 So. 2d 777, 779 (Fla. 2d 

DCA 1978)). The motion "should be resolved with extreme caution," id., 

and "should be granted only where no view of the evidence, or inferences 

made therefrom, could support a verdict for the nonmoving party," 

United Servs. Auto. Ass'n v. Rey, 313 So. 3d 698, 702 (Fla. 2d DCA 2020) 

(quoting Sims v. Cristinzio, 898 So. 2d 1004, 1005 (Fla. 2d DCA 2005)). 

"[T]he court must evaluate the testimony in the light most favorable to 

the nonmoving party and every reasonable inference deduced from the 

evidence must be indulged in favor of the nonmoving party." Id. (quoting 

Sims, 898 So. 2d at 1005).

I.

The framework against which the evidence must be evaluated bears 

discussion. GEICO's defense was that it paid Superior the "prevailing 

competitive price," which, under the policy, "is the price [GEICO] can 

secure from a competent and conveniently located repair facility." The 

circuit court held in Dick I that the prevailing competitive price is "what 

the service would cost in a competitive market in a normal, arms' length 
12

non-insurance transaction" and then held in Dick II that GEICO bore the 

burden of proof. 

The circuit court's opinions in Dick I and Dick II are the law of the 

case. See City Nat'l Bank of Fla. v. City of Tampa, 67 So. 3d 293, 299 

(Fla. 2d DCA 2011) ("We agree with the Third District that a decision by a 

circuit court, sitting in its appellate capacity, becomes the law of the case 

on issues which were necessarily presented and decided in the prior 

action."). We are constrained by the law of the case unless a " 'manifest 

injustice' will result from a strict and rigid adherence to the rule." Tiede 

v. Satterfield, 870 So. 2d 225, 228 (Fla. 2d DCA 2004) (quoting Strazzulla 

v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965)); see also United Auto. Ins. Co. v. 

Comprehensive Health Ctr., 173 So. 3d 1061, 1065 (Fla. 3d DCA 2015) 

("[A] question of law decided on appeal will seldom be reconsidered or 

reversed, even when it appears to have been erroneous."). As neither 

party has argued that such an injustice will result here, we are obligated 

to adhere to the framework set forth in Dick I and Dick II. 

What also bears discussion is the trial court's construction and 

application of the policy language and the framework articulated in Dick I

and Dick II. In setting aside the verdict, the trial court reasoned that 

there was no evidence that the amounts GEICO paid in its various 

transactions were "rooted in a competitive market" because the evidence 

"was based entirely on GEICO claims" and "the GEICO formula." The 

corollary to the trial court's rationale is that GEICO needed to present 

evidence of non-GEICO claims without use of the GEICO formula to 

establish the prevailing competitive price. That cannot be the case. 

According to the plain language of the policy, the prevailing competitive 

price is the price that GEICO can secure. Therefore, evidence of the 

prevailing competitive price inherently must be based upon GEICO's 
13

claims. Even the circuit court in Dick II recognized that evidence of what 

other insurers paid could not necessarily establish the prevailing 

competitive price. See Dick II, 28 Fla. L. Weekly Supp. 785a ("Evidence 

that invoices were paid in full by other insurers can only be relevant if 

the policy language of those insurers is the same as GEICO's policy."). 

Given the policy language and the affirmation of it by Dick I and Dick II, 

the only logical way to interpret the use of the phrase "normal, arms' 

length non-insurance transaction" in those opinions is that it was meant 

to exclude consideration of those transactions involving prices "set in an 

agreement between GEICO and a particular provider." Dick I, 26 Fla. L. 

Weekly Supp. 876a; Dick II, 28 Fla. L. Weekly Supp. 785a. 

The trial court's rationale created a standard that is inconsistent 

with the language of the policy and absent from the circuit court 

appellate opinions that control this case. That rationale, and Superior's 

defense of it on appeal, constitute an unjustified extension of the 

holdings of Dick I and Dick II. In those opinions, the circuit court 

affirmed the policy language that allowed GEICO to limit its obligation to 

prices that it alone could negotiate, agreeing that the prevailing 

competitive price is "the price [GEICO] can secure from a competent and 

conveniently located repair facility." Dick I, 26 Fla. L. Weekly Supp. 

876a; Dick II, 28 Fla. L. Weekly Supp. 785a. What the circuit court 

opined that GEICO could not do was "say 'prevailing competitive price' is 

the limit of its liability and then effectively limit its exposure to a lower 

price it alone could obtain through a non-open-market transaction." Id. 

The distinction the circuit court was drawing was not between those 

prices GEICO alone could obtain and those that could be obtained by 

other insurance carriers or windshield purchasers. Rather, the 

distinction was between those prices that GEICO "alone could obtain 
14

through . . . non-open-market transaction[s]" and those that GEICO 

alone could obtain through open market transactions—which the trial 

court characterized as what the service would cost "in a competitive 

market in a normal, arms' length non-insurance transaction." Dick I, 26 

Fla. L. Weekly Supp. 876a (rejecting GEICO's interpretation in the trial 

court that the prevailing competitive price is "any price it elects to pay 

that can get the repair done" (emphasis added)). Thus, while Superior 

and the trial court would have us believe that we are required by Dick I 

and Dick II to ignore any transactions in which GEICO negotiated prices 

by imposition of its formula, that requirement imports an elevated 

standard unsupported by those decisions' analysis of the "prevailing 

competitive price." 

In other words, the circuit court's reasoning in Dick I and Dick II

makes it evident that not all of GEICO's claims are to be excluded from 

consideration in determining the prevailing competitive price, only those 

that conform to those opinions' conception of non-open-market 

transactions—transactions with prices that GEICO obtained through 

agreements negotiated with its network providers. It follows that while 

GEICO cannot rely on any such "non-open-market transaction[s]" as 

evidence to limit its exposure to a lower price under the policy's 

"prevailing competitive price" limitation, it can rely on those transactions 

meeting the criteria of open-market to limit its exposure—even if the 

prices secured might be those that only GEICO could obtain. The trial 

court's conclusion that there was no evidence of open-market, 

competitive transactions simply because GEICO limited its evidence to 

that of its own claims based on its own pricing parameters was therefore 

incorrect. In resolving Superior's motion, the trial court was required to 

evaluate whether, consistent with Dick I and Dick II, there was evidence 
15

from which the jury could have determined that GEICO secured prices in 

open-market, competitive transactions from competent and conveniently 

located facilities. 

II.

GEICO contends there was evidence from which the jury could 

conclude that GEICO paid Superior the prevailing competitive price. 

GEICO presented testimony from Ms. Eberling that based on her twentyone-year career with GEICO that included involvement and experience 

with thousands of the high volume of claims GEICO processes each 

year—over 100,000—she knew GEICO could secure a price for a 

windshield replacement in 2015 at its pricing parameters: 50% of the 

NAGS suggested rate, $40 per hour for labor, and $15 per kit. She 

testified that GEICO transacts business with hundreds of shops in a 

given year and more shops bill at or below GEICO's parameters than do 

not. GEICO therefore sought to establish the prevailing competitive price 

by reference to the pricing for each component of a windshield 

replacement, which can vary based upon the type of vehicle, the number 

of labor hours required, and the time of year as the NAGS suggested 

rates are updated. Ms. Eberling's testimony did just that. It provided an 

evidentiary basis from which the jury could conclude that GEICO could 

secure a price at its parameters in 2015 more often than not—the same 

parameters within which GEICO paid Superior. 

Ms. Eberling's testimony also provided a basis from which the jury 

could conclude that the prices GEICO secured at its parameters in 2015 

were in an open, competitive market, within the meaning of that phrase 

according to Dick I and Dick II, involving "normal, arm's length noninsurance transaction[s]." She specified that GEICO secured those 

prices from nonnetwork repair shops, which are chosen by GEICO's 
16

policyholders and have no affiliation or contract with GEICO. Ms. 

Eberling explained that the nonnetwork shops chose to take work on 

GEICO claims without any obligation to do so and, more often than not, 

chose to bill and accept payment at GEICO's pricing parameters. 

Contrary to the flawed formulation of Superior and the trial court, just 

because nonnetwork repair shops bill and accept payment at GEICO's 

parameters does not make those transactions "non-open-market" or 

noncompetitive. In fact, the competitive nature of the market is further 

illustrated by the fact that sometimes GEICO secures pricing from 

nonnetwork shops at its parameters, and sometimes it does not.4 What 

Ms. Eberling's testimony provided was evidence from which it could be 

inferred that GEICO could secure a price at its parameters in 2015 and 

could do so in a preponderance of the transactions, allowing the jury to 

conclude that this pricing was not only possible but "prevailing." See, 

e.g., Prevailing, The American Heritage Dictionary (5th ed. 2011) (defining 

4 If not for Dick I and Dick II, GEICO would not need to confine its 

evidence to nonnetwork repair shops or otherwise because even that 

requirement finds no basis in the ordinary meaning of the policy 

language. The prevailing competitive price is what the policy language 

says it is, "the price [GEICO] can secure from a competent and 

conveniently located repair facility," and there is no exception in the 

event GEICO can routinely secure lower prices through a network of 

repair shops or other agreement. See State Farm Mut. Auto. Ins. Co. v. 

Menendez, 70 So. 3d 566, 569 (Fla. 2011) ("In interpreting an insurance 

contract, we are bound by the plain meaning of the contract's text."). 

Nothing in the policy indicates that GEICO's use of effective negotiating 

strategies to secure lower prices—relying, for instance, on volume as a 

potential means of achieving some degree of market hegemony—renders 

those prices noncompetitive. In other words, competing successfully to 

reduce costs does not—as the circuit court appellate opinions suggest—

remove the resulting lower-cost transactions from the realm of "a 

competitive market." See Dick I, 26 Fla. L. Weekly Supp. 876a. But even 

under the Dick I and Dick II strictures, which this court is bound to 

follow as the law of the case, GEICO met its evidentiary burden.
17

"prevailing" as "[g]enerally current; widespread"); see also Prevailing, 

Oxford English Dictionary Online (2023), https://www.oed.com/ 

(defining "prevailing" as "[p]redominant in extent or amount; most widely 

occurring or accepted"). 

While Ms. Eberling's testimony was sufficient to support the verdict 

as to the prevailing competitive price, GEICO also adduced testimony 

from Dr. McClave to buttress its case. Dr. McClave performed a 

statistical analysis of GEICO's claims data, searching for instances where 

the amount billed to GEICO matched the amount GEICO paid. He found 

that, through approximately 6,500 transactions, 55% of 115 nonnetwork, 

independent shops in the Tampa Bay area who did business with GEICO 

in 2015 had their invoices paid in full 90% of the time. Dr. McClave 

concluded that the transactions in which the amounts billed and 

GEICO's payments matched were reflective of GEICO's ability to secure a 

price in competitive and arm's length transactions, otherwise he would 

not see thousands of transactions taking place with shops that have no 

obligation to take the work. This evidence satisfies the meaning ascribed 

to the term "competitive" by the circuit court in Dick I. Thus, even 

presuming for the sake of analysis that Dr. McClave's testimony—relying 

as it did on Ms. Eberling's assurance that the preponderance of claims 

were paid within GEICO's parameters—provided no support that any 

particular transaction itself constituted the prevailing competitive price, 

his testimony was relevant to GEICO's theory that the transactions on 

which it based its case were of the competitive and open-market type 

that satisfied the test set forth in Dick I and Dick II.

Superior argues that Dr. McClave's testimony was inadmissible 

because it was premised upon the claims history spreadsheet that the 

trial court excluded from evidence. By allowing Dr. McClave to testify as 
18

he did, it would appear as if the trial court implicitly overruled itself, at 

least in part. More importantly, any possible error in admitting Dr. 

McClave's testimony due to its basis in the excluded spreadsheet is 

inconsequential given this court's determination, explained more fully 

below, that the exclusion itself was erroneous. 

GEICO correctly argues that the trial court erred in excluding the 

claims history spreadsheet from evidence. See Sottilaro v. Figueroa, 86 

So. 3d 505, 507 (Fla. 2d DCA 2012) (providing that "a trial court's ruling 

on the admissibility of evidence is subject to an abuse of discretion 

standard of review," except that an erroneous interpretation of the 

evidence code and applicable case law is reviewed de novo). The trial 

court excluded the spreadsheet on the basis that it would confuse or 

mislead the jury and, in doing so, reasoned that "it's not relevant 

because . . . the confusion and the misleading outweighs the probative 

value." We note that the trial court improperly conflated relevance with 

the balancing test set forth in section 90.403, Florida Statutes (2021). 

Balancing the spreadsheet's probative value with the danger it might 

confuse or mislead the jury is only necessary if it is, in fact, relevant. 

Compare § 90.401, Fla. Stat. (2021) ("Relevant evidence is evidence 

tending to prove or disprove a material fact."), with § 90.403 ("Relevant

evidence is inadmissible if its probative value is substantially outweighed 

by the danger of . . . confusion of issues [or] misleading the jury . . . ." 

(emphasis added)). The trial court's conclusion that the evidence was not

relevant because its prejudicial effect outweighed its probative value is 

contrary to both law and logic: if the evidence has probative value against 

which to weigh potential prejudice, then it is manifestly relevant. The 

trial court's rationale for excluding the spreadsheet as not relevant was 

therefore based on an erroneous interpretation of the evidence code.
19

Moreover, the trial court abused its discretion in excluding the 

spreadsheet on the basis that it would confuse or mislead the jury. It 

offered no explanation why or how the spreadsheet would do so other 

than to say the jury was "not going to know what to do with this." 

Notwithstanding, it cannot reasonably be said that the probative value of 

a document listing the prices GEICO secured from its 2015 windshield 

claim transactions with nonnetwork repair shops—in a case in which the 

core issue is determining what price GEICO could secure for a 

windshield replacement—is "substantially outweighed" by the danger of 

misleading or confusing the jury. See § 90.403 (emphasis added). And 

we reject Superior's arguments under the Tipsy Coachman doctrine that 

the spreadsheet was inadmissible for other reasons.

The trial court's evidentiary error aside, the claims spreadsheet 

itself, on this record, does little if anything to support the verdict. While 

Ms. Eberling explained that GEICO pays the majority of its windshield 

replacement claims at its pricing parameters, she also explained other 

unique circumstances that may at times lead GEICO to pay a different 

price. There is nothing on the face of the spreadsheet that denotes 

whether the amount GEICO paid in each transaction was according to its 

pricing parameters or was a different price based on some unique 

circumstance. We realize that GEICO may have presented additional 

testimony had the trial court not excluded the spreadsheet prior to its 

case-in-chief. In fact, GEICO argued to the trial court that Ms. Eberling 

would testify that the spreadsheet reflects transactions in which 

independent shops bill, and GEICO pays, according to GEICO's 

parameters. However, because the testimony Ms. Eberling did provide 

supports the verdict, the possibility that the information in the excluded 

spreadsheet—and the expert testimony based thereon—might have 
20

added nothing of any probative value over and above that provided by 

Ms. Eberling is of no consequence. 

Finally, the trial court also concluded that GEICO's evidence could 

not support the verdict because there was no evidence that GEICO 

secured pricing from "competent" repair facilities. Ms. Eberling testified 

that she had no reason to believe the nonnetwork repair shops were not 

competent. She explained that, after each claim, GEICO transmits a 

customer satisfaction survey to its insureds, and GEICO would hear from 

its insureds if they were unhappy with the services received pursuant to 

those surveys. She also explained that GEICO might see multiple 

windshield replacements being performed on the same claim if a shop 

did not perform competent work. When reviewing an order granting a 

motion for directed verdict in accordance with a previous motion for 

directed verdict, we must indulge every reasonable inference from the 

evidence in favor of GEICO. See United Servs. Auto. Ass'n, 313 So. 3d at 

702. In doing so, there is evidence supporting the verdict because it can 

be reasonably inferred that the lack of dissatisfactory responses from the 

surveys and lack of multiple replacements on the same claim indicated 

that the nonnetwork repair shops GEICO did business with were 

competent. When determining whether to deprive the jury of its province 

by directing a verdict, it is not the prerogative of this court or the trial 

court to consider whether or how a litigant could have better supported 

its defense at trial. Even if another view of the evidence is equally 

compelling or more so, the question is whether "no view of the evidence, 

or inferences made therefrom, could support a verdict for the nonmoving 

party." See id. (emphasis added) (quoting Sims, 898 So. 2d at 1005). 

Assessing the evidence in the light most favorable to GEICO and 

considering all reasonable inferences in its favor, see Sims, 898 So. 2d at 
21

1005, it cannot be said that there is no view of the evidence that could 

support a verdict that the entities from which GEICO was able to secure 

a price within the parameters it paid Superior were "competent" repair 

facilities.

In sum, although a different jury may have come to a different 

conclusion, there was admissible evidence presented upon which the 

jury could reasonably conclude that GEICO established it paid Superior 

the prevailing competitive price. Because viewing the evidence and all 

reasonable inferences in favor of GEICO could support the jury's verdict, 

the trial court erred in granting Superior's motion for judgment in 

accordance with prior motion for directed verdict and entering final 

judgment in favor of Superior.

III.

In its cross-appeal, which Superior conditions upon the court 

reversing the judgment notwithstanding the verdict, Superior first 

requests that we reinstate either of the county court's prior final 

summary judgments in its favor. We cannot do this. Both of the county 

court's final summary judgments were previously appealed to the circuit 

court, and the circuit court reversed them both. The circuit court's 

decisions now constitute the law of the case and, as described above, 

receding from them would not be justified absent a manifest injustice. 

City Nat'l Bank of Fla., 67 So. 3d at 299; Tiede, 870 So. 2d at 228. 

Reinstating either of the county court's final summary judgments would 

therefore violate the law of the case doctrine and impermissibly afford the 

parties a second plenary appeal. 

Superior alternatively requests that we remand for a new trial 

based upon the admission of inadmissible evidence, an erroneous jury 

instruction on the prevailing competitive price, and because the verdict 
22

was against the manifest weight of the evidence. However, when the trial 

court granted Superior's motion for judgment in accordance with its 

motion for directed verdict, it did not rule on the merits of Superior's 

alternative motion for new trial. Instead, the trial court reasoned that 

"[t]he alternative portion of the motion for new trial is rendered moot." 

Therefore, given our decision to reverse on GEICO's main appeal, the 

trial court shall rule on the merits of Superior's motion for new trial on 

remand. Cf. Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So. 2d 168, 

173 (Fla. 4th DCA 1994 ("[W]here the trial court has ruled upon a motion 

for judgment in accordance with prior motions for directed verdict, but 

not upon the motion for new trial, the appropriate procedure upon 

reversal is to instruct the trial court on remand to rule upon the motion 

for new trial."); Kilburn v. Davenport, 286 So. 2d 241, 244 (Fla. 3d DCA 

1973). 

Conclusion

Based on the foregoing, we reverse the trial court's final judgment 

entered notwithstanding the jury verdict. We remand for entry of a 

judgment in favor of GEICO in accordance with the jury's verdict and for 

the trial court to rule on the merits of Superior's motion for new trial. 

Reversed and remanded with instructions.

KHOUZAM, J., Concurs in result only. 

CASANUEVA, J., Concurs with opinion.
23

CASANUEVA, Judge, Concurring.

And the last shall be first. I concur with the conclusion reached in 

the majority opinion that the trial court erred by entering a final 

judgment notwithstanding the jury verdict and that this cause should be 

remanded to the trial court to enter a final judgment in favor of GEICO 

that comports with the jury verdict. Likewise, I also concur that on 

remand, the trial court should rule on the merits of Superior's motion for 

a new trial.

Because the issue presented by this case is one likely to generate 

additional litigation in the future, I hasten to add that as to the primary 

opinion, I additionally concur with sections I and III of the analysis.

However, as to section II of the analysis, I do not concur in the 

second, third, or seventh paragraph; nor do I join in the content of 

footnote four.

Opinion subject to revision prior to official publication.