11 Fla. L. Weekly Supp. 1109a
Insurance — Personal injury protection — Settlement agreement — Statutory interest began accruing at rate of 12% where settlement payment was not tendered within 20 days of date settlement was reached and settlement was not conditioned upon execution of release — Accord and satisfaction — Plaintiff did not waive right to statutory interest when it cashed settlement check indicating that it was in full payment/final lawsuit settlement
KLONEL CHIROPRACTIC & REHABILITATION CENTER, as Assignee of Denise Evans, Plaintiff, v. PROGRESSIVEEXPRESS INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-003669. August 30, 2004. Carmine M. Bravo, Judge. Counsel: Lee M. Jacobson, Law Offices of Michael B. Brehne, P.A., Maitland, for Plaintiff. Jason Urbanowicz, Moriarty and Associates, Maitland, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
THIS CAUSE came on for hearing July 23, 2004 on Plaintiff’s Motion to Enforce Settlement Agreement, the Court having read the motion and memorandums of law provided by both parties, heard argument of counsel and being otherwise fully advised in the premises, makes a finding of the following facts:
1. On January 22, 2004, the parties to the litigation agreed to settle the case.
2. Correspondence from both parties’ counsel confirmed this agreement. See Exhibits “A” and “B” attached to both parties’ Memorandums of Law.
3. Florida Statute 627.4265 requires the tender of settlement payment to occur within twenty (20) days from the date the settlement is reached. If tender of the settlement payment is not received within twenty (20) days, interest shall accrue at the rate of 12%, unless “tender of payment is conditioned upon the execution of a release.”
4. Defendant tendered the settlement proceeds on February 26, 2004, thirty-five (35) days after settlement was reached.
5. Plaintiff seeks from this Court an Order granting Plaintiff’s entitlement to interest pursuant to F.S. 627.4265.
6. Defendant agreed in oral argument the tender of the settlement payment was not within twenty days, but argued that the payment was conditioned upon the execution of a release and/or alternatively argues that the theory of accord and satisfaction applies, as Plaintiff presented the settlement check for payment bearing the terms, “In Payment of Full/Final Lawsuit Settlement Any/All Meds/Inst to Date.”
7. Defendant did not condition the tender of the settlement payment upon execution of a release, rather Defendant conditioned the execution of a release “upon determination of the amount of attorney fees” as stated in the settlement confirmation letter, Exhibit “B” to Defendant’s Memorandum of Law.
8. Plaintiff did not waive its right to the statutory interest provided by F.S. 627.4265, when it cashed the settlement instrument.
Therefore, this Court ORDERS AND ADJUDGES as follows:
1. Plaintiff’s Motion to Enforce Settlement Agreement is hereby GRANTED.
2. Defendant shall pay the Plaintiff interest, pursuant to F.S. 627.4265, at a rate of 12% from the date of agreement until the date the settlement proceeds were tendered.
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