DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

GEICO INDEMNITY COMPANY,

Appellant/Cross-Appellee,

v.

SHAZAM AUTO GLASS, LLC, a/a/o 

GABRIELLA MERCADO,

Appellee/Cross-Appellant.

No. 2D2022-4232

August 21, 2024

Appeal from the County Court for Hillsborough County; Michael C. 

Bagge-Hernandez, Judge.

Michael C. Clarke and Joye B. Walford of Kubicki Draper, P.A., Tampa,

for Appellant/Cross-Appellee.

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

Tampa; and Keith P. Ligori, Meaghann Ligori, Thomas McFadyen, and 

Torrey Clifford Taylor of Ligori & Ligori, P.A., Tampa, for Appellee/CrossAppellant.

PER CURIAM.

Affirmed.

MORRIS and VILLANTI, JJ., Concur.

CASANUEVA, J., Concurs with opinion.
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CASANUEVA, Judge, Concurring. 

I concur in this court's decision to affirm but write to discuss 

issues which occur with a degree of frequency in litigation over the repair 

of cracked or broken windshields. This concurrence will specifically 

discuss the language of the insurance contract, small claims rules of 

procedure, and the pleadings and procedure utilized during the litigation 

of this matter.

I. Background

GEICO issued an insurance policy to the insured, Ms. Mercado. 

While the policy was active, Ms. Mercado's vehicle sustained damage to 

the windshield. After repairing the vehicle, Ms. Mercado assigned her 

rights and benefits under the policy to Shazam Auto Glass. Pursuant to 

this assignment, Shazam submitted a bill to GEICO. After failing to pay 

the bill in full, Shazam filed a complaint against GEICO for breach of 

contract.1 

As it pertains to windshield coverage, Section III of the policy 

provides that GEICO "will pay for each loss, less the applicable 

deductible, caused other than by collision to the owned or non-owned 

auto. This includes glass breakage. No deductible will apply to loss to 

windshield glass." Under the same section, GEICO's policy provides that 

the limit of its liability for loss "[w]ill not exceed the prevailing competitive 

price to repair or replace the property at the time of loss." While the 

policy defines "prevailing competitive price" as "the price that [GEICO] 

can secure from a competent and conveniently located repair facility, it 

does not define "competent," "conveniently located," or "repair facility." 

Prior to trial, GEICO asserted three affirmative defenses. GEICO 

did not file a formal answer or affirmative defenses. See Fla. Sm. Cl. R. 

1 GEICO paid $310.47 of the $628.12 bill.
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7.090(c) ("Unless required by order of court, written pretrial motions and 

defensive pleadings are not necessary."). Instead, it put forward its 

affirmative defenses through discovery by answering Shazam's 

interrogatories. Specifically, GEICO asserted: (1) GEICO paid the claim 

pursuant to its limitation of liability provision within the policy, (2) 

Shazam must prove it has standing to maintain its action pursuant to a 

valid assignment of benefits from the Insured, and (3) Shazam waived the 

right to charge a higher, unilaterally set amount. And pursuant to 

Florida Small Claims Rule 7.135, Shazam moved for summary 

disposition on GEICO's affirmative defenses. 

Finding no admissible facts to support GEICO's defenses, the trial 

court granted summary disposition. 

II. Discussion

Our supreme court has held that "[a]n affirmative defense is a 

defense which admits the cause of action, but avoids liability, in whole or 

in part, by alleging an excuse, justification, or other matter negating or 

limiting liability." State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 

1071, 1079 (Fla. 2014) (quoting St. Paul Mercury Ins. Co. v. Coucher, 837 

So. 2d 483, 487 (Fla. 5th DCA 2002)); see also Mintz Truppman, P.A. v. 

Cozen O'Connor, PLC, 346 So. 3d 577, 580 n.8 (Fla. 2022) (same). 

It is the defendant who bears the burden of proving an affirmative 

defense. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096 

(Fla. 2010). And an affirmative defense must be measured against the 

cause of action it seeks to avoid. 

Here, Shazam's complaint put forth a cause of action based upon 

its assigned contract rights from the insured and GEICO's alleged breach 

of those contractual rights. This court has "identified the three elements 

for a cause of action for breach of contract as: '(1) a valid contract, (2) a 
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material breach, and (3) damages.' " JF & LN, LLC v. Royal OldsmobileGMC Trucks Co., 292 So. 3d 500, 508 (Fla. 2d DCA 2020) (footnote 

omitted) (quoting Havens v. Coast Fla., P.A., 117 So. 3d 1179, 1181 (Fla. 

2d DCA 2013)). Thus, to emphasize the obvious, damages are an 

element of a cause of action for breach of contract. And as Judge Gross 

wrote, "an essential element of the plaintiff's cause of action is not an 

affirmative defense." Rauch, Weaver, Norfleet, Kurtz & Co. v. AJP Pine 

Island Warehouses, Inc., 313 So. 3d 625, 629–30 (Fla. 4th DCA 2021)

(citing Commerce P'Ship 8098 Ltd. P'ship v. Equity Contracting Co., 695 

So. 2d 383, 390 (Fla. 4th DCA 1997)).

Accordingly, I regard GEICO's assertion that it paid the claim 

pursuant to its limitation of liability provision within the policy as an 

argument regarding performance of the contract and not one that admits 

the cause of action and avoids liability under the contract. If sufficient 

payment is proven, there has been no breach of GEICO's contractual 

duty and no damages are due to plaintiff; the contract has been fully 

performed. Thus, GEICO did not, in my view, assert an affirmative 

defense. 

Further, just as the proponent of an affirmative defense bears the 

burden of persuasion, the plaintiff bears the burden to "establish by a 

preponderance of the evidence each element of his cause of action." Id.

at 630 (quoting Sharp v. Long, 283 So. 2d 567, 568 (Fla. 4th DCA 1973)). 

Here, Shazam accepted an assignment of rights from Ms. Mercado. 

"Generally, an assignor conveys to the assignee his or her rights and 

interests in the property or interest assigned." Dove v. McCormick, 698 

So. 2d 585, 589 (Fla. 5th DCA 1997) (citing State v. Family Bank of 

Hallandale, 667 So. 2d 257, 259 (Fla. 1st DCA 1995)). The "assignee 

stands in the shoes of his assignor" and, therefore, cannot receive a 
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greater right than the assignor had at the time of the assignment. Id.

(quoting Cadle Co. II, Inc. v. Stamm, 633 So. 2d 45, 46 (Fla. 1st DCA 

1994)). Because Shazam possessed only the rights assigned to it, it is 

entitled only to payment of the "prevailing competitive price to repair or 

replace the property at the time of loss." And Shazam, as plaintiff, is 

required to prove every element of its cause of action for breach of 

contract, including damages. Proof of damages in this instance includes 

not only the invoice for the cost of repair, but proof that the repair was a 

"prevailing competitive price."

Shazam, however, contends that the rationale set forth in Curran

alters the customary burden of proof imposed upon a plaintiff. I 

disagree. 

In Curran, the individual insured by State Farm—Curran—was 

rear-ended by an underinsured motorist. 135 So. 3d 1071, 1073. State 

Farm approved a settlement agreement between the parties. Id. Later, 

Curran indicated that due to her injuries, her damages totaled 

approximately 3.5 million dollars. Id. She sought "her $100,000 

underinsured motorist policy limits and offered to settle and release 

State Farm from an uninsured motorist . . . lawsuit if it tendered the 

policy limits." Id. Prior to issuing any payment, State Farm sought to 

have Curran submit to a compulsory medical examination, arguing that 

her policy imposed upon her a duty to submit to the exam and that there 

was "no right of action against [State Farm] until all the terms of [the] 

policy [were] met." Id. at 1073-74 (first alteration in original). State 

Farm contended that the contractual language was "a condition 

precedent to both coverage and to suit, which constitutes a material 

breach of the policy resulting in forfeiture of coverage irrespective of any 

showing of prejudice to State Farm." Id. at 1076. 
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Our supreme court answered the following questions of great 

public importance, as rephrased by the court:

When an insured breaches a compulsory medical 

examination provision in an uninsured motorist contract, 

does the insured forfeit benefits under the contract without 

regard to prejudice? If prejudice must be considered, who 

bears the burden of pleading and proving that issue?

Id. at 1073. It is the answer to the second question that I focus on in the 

case before us. The court held that "the insurer as the defensive party 

pleading an affirmative defense has the burden of pleading and proving 

prejudice." Id. The court specifically held "that the burden of pleading 

and proving that issue is on State Farm. State Farm raised this issue as 

an affirmative defense." Id. at 1079. In Curran, the insurer sought to 

avoid liability for payment by asserting that a condition precedent had 

not yet occurred so that payment had not yet accrued under the policy's 

terms. Performance of payment under the policy was sought to be 

avoided, and the pleading did not assert that full performance of the 

insurance contract had been made.

Thus, I perceive a difference in the litigation between an assertion 

of contract performance and contract avoidance. The former I view as an 

issue of proof. If full payment was made in accordance with the contract 

of insurance, then there can be no damage award. Shazam, as an 

assignee, is entitled only to the payment rights afforded to its assignor 

under its contract of insurance. That is, Shazam is entitled to receive 

payment of the competitive prevailing price and not a reasonable price as 

alleged in its claim. Should there be a deficiency for the latter payment, 

Shazam may need to look to its customer.

Opinion subject to revision prior to official publication.