13 Fla. L. Weekly Supp. 1090a
Insurance — Personal injury protection — Coverage — Defenses — Accord and satisfaction — Where insurer asserts defense of accord and satisfaction based on agreement between provider and insured, and in opposition to insurer’s motion for summary judgment, medical provider asserts that agreement was not intended to waive provider’s rights under assignment from insured to seek recovery from insurer of any PIP benefits not paid directly by insured, disputed issue of fact regarding intent of parties precludes entry of summary judgment
GULF COAST INJURY CENTER, (As Assignee of MARIA MATTA), Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 06-2180 SC, Division L. August 17, 2006. John N. Conrad, Judge. Counsel: Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. Randall A. Wainoris, Tampa, for Defendant.
ORDER DENYING BOTH PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on July 27, 2006, pursuant to Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Final Summary Judgment, and the Court having reviewed the court file, heard argument from the parties, reviewed relevant case law, and being otherwise fully advised in this matter, it is, therefore,
ORDERED AND ADJUDGED as follows:
1. In response to Plaintiff’s complaint, Defendant has asserted, among other things, the defense of accord and satisfaction based on an alleged agreement signed by Plaintiff and the insured, Maria Matta, pursuant to a resolution of the insured’s bodily injury case.
2. Defendant has requested this Court to find that the agreement signed by Plaintiff and the insured establishes the defense of accord and satisfaction as a matter of law, and therefore, it is entitled to final summary judgment in this matter.
3. Plaintiff has asserted that the agreement between the parties was not intended to waive Plaintiff’s rights, pursuant to its assignment from the insured, to seek recovery from Defendant of any PIP benefits that were not paid directly by the insured.
4. In support of its position, Plaintiff relies upon the deposition transcripts of Dominic Fariello and Scott Drummond which were filed on July 21, 2006. In particular, the deposition testimony of Scott Drummond, who is the managing owner for Plaintiff, indicates that Plaintiff’s agreement with the insured was done so with the intent that Plaintiff would retain its right to collect any unpaid PIP benefits from Defendant. Accordingly, Plaintiff argues that there is a genuine issue of material fact regarding the intent of the parties in reaching this agreement that would prevent the entry of summary judgment for Defendant.
5. As a general rule, the intention of the parties or the interpretation of a contract is to be determined by the trier of fact, and is not to be determined upon a motion for summary judgment. MacKenzie v. Avis Rent-A-Car Systems, Inc., 369 So. 2d 647 (Fla. 3rd DCA 1979) and St. Mary’s Hospital, Inc. v. Schocoff, 725 So. 2d 454 (Fla. 4th DCA 1999). See also Order Denying Motion for Summary Judgment, Amended Motion for Summary Judgment, and Motion for Final Summary Judgment or Summary Disposition entered by Judge Gaston Fernandez on August 18, 2004 in Tran Chiropractic & Wellness Center, Inc. d/b/a With Hands Only Chiropractic, P.A., as assignee of Ryan Hess, vs. Progressive Express Insurance Company, [11 Fla. L. Weekly Supp. 1012a] Case No. 03-30183, Division J, in the County Court of Hillsborough County, Florida.
6. Based upon the record in this case, the Court finds that there is sufficient evidence to conclude that there is a genuine issue of material fact with respect to the legal sufficiency of the defense of accord and satisfaction raised by Defendant that precludes the Court from entering final summary judgment in favor of Defendant. Therefore, Defendant’s Motion for Final Summary Judgment is hereby denied.
7. Furthermore, given the fact that the defense of accord and satisfaction may constitute a complete defense to Plaintiff’s claim, the Court also concludes that there is no legal basis for the Court to grant final summary judgment in favor of Plaintiff. Therefore, Plaintiff’s Motion for Final Summary Judgment is hereby denied.
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