14 Fla. L. Weekly Supp. 257a
Insurance — Personal injury protection — Defenses — Election of remedies — Error to require insurer to elect remedies between affirmative defense of accord and satisfaction and denial that bills are reasonable, related and necessary at pretrial conference and to overrule insurer’s objection to requirement to elect remedies prior to trial
U. S. SECURITY INSURANCE COMPANY, Appellant, vs. NEUROLOGY ASSOCIATES, GROUP TWO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-284 AP. L.T. Case No. 01-252 CC 24. January 17, 2007. An appeal from the County Court in and for Miami-Dade County, Judge Jeffrey D. Swartz. Counsel: David Pakula, for Appellant. Jeannine Jontiff, for Appellee.
(Before SCHWARTZ, SHUMINER and FERNANDEZ, JJ.)
(SHUMINER, J.) Having thoroughly reviewed the pleadings and papers in this case, the ruling of the county court should be reversed and remanded.
William Marquez was injured in an automobile accident on August 3, 2000. The insured, William Marquez, had an automobile insurance policy with the Appellant, U.S. Security Insurance Company. The Appellee, Neurology Associates Group Two accepted an assignment of benefits in accordance with the policy coverage and provided medical care to the insured. Four bills for medical and diagnostic treatment rendered by the Appellee were submitted to the Appellant as follows:
(1) Billing in the amount of $6,461.00 for dates of service 10/2/00-10/18/00;
(2) Billing in the amount of $2,120.00 for dates of service 10/20/00-11/9/00;
(3) Billing in the amount of $2,255.00 for dates of service 1/13/00-11/29/00;
(4) Billing in the amount of $2,070.00 for dates of service 12/1/00-12/15/00.
Appellant confirmed receipt of the aforementioned bills totalling $12,906.00 on 10/27/00, 11/17/00, 12/13/00 and 1/2/01, respectively. The Appellant paid $2,500.00 under the policy, but refused to pay the balance in the amount of $8,324.80. The Appellant contends that the $2,500.00 was tendered as full and final settlement of the unpaid medical bills. The Appellee asserts that it was informed by the Appellant that these funds should be applied to the insured’s account. On January 12, 2001, the Appellee filed its complaint for damages to recover the unpaid medical bills.
The instant case was set for trial five times, on December 18, 2002, May 28, 2003, November 14, 2003, January 20, 2004 and March 16, 2004. At the commencement of the trial on November 14, 2003, the Court made a ruling that Appellant’s general denial of reasonable, related and necessary expenses and the affirmative defense of accord and satisfaction were inconsistent with one another. As such, the Court required the Appellant to elect a remedy. Although there is no transcript, the Appellant elected reasonable, related and necessary expenses. The proceedings held on November 14, 2003 ended in a mistrial.
On March 16, 2004, prior to the start of the new trial the election of remedies was placed on the trial record. During trial, the Court ruled that the tender of funds in the amount of $2,500.00 should be treated as a failed attempt at settlement and would be applied towards the recovery at the conclusion of the trial. This trial resulted in a return of verdict for the Appellee. The jury specifically found that the medical services provided to the insured subsequent to his accident on August 3, 2000 were medically necessary. Further, the jury found the reasonable value of Appellee’s services to be in the amount of $2,520.00.
Post-trial, on May 5, 2004, the Court ordered the Appellee to refund the $2,500.00 payment accepted prior to the filing of the lawsuit. On May 24, 2004, a final judgment was entered finding the Appellee to be the prevailing party. The final judgment entitled the Appellee to recover from Appellant a total award in the amount of $63,458.47. The breakdown of this award is as follows: a principal amount of $16.00, plus interest in the amount of $4.00, for a total award of $20.00 (after subtraction of the 20% copayment and $2,000.00 deductible); an attorney’s fee award in the amount of $62,095.00; and taxable costs in the amount of $545.50. The final judgment was recorded in Official Records Book 22350 at Page 2900 in the Public Records of Miami-Dade County, Florida. On June 28, 2004, the Appellant filed its notice of appeal.
The doctrine of election of remedies is a technical rule of judicial administration utilized by the courts to prevent double recoveries for a single wrong. Alvarez v. Puleo, 561 So. 2d 437 (Fla. 2d DCA 1990). By definition, an election of remedies concerns the choice between two or more wholly inconsistent remedies on the same set of facts. Heller v. Held, 817 So. 2d 1023 (Fla. 4th DCA 2002). “If the allegations of facts necessary to support one remedy are substantially inconsistent with those necessary to support the other, then the adoption of one remedy waives the right to the other.” Barbe v. Villaneuve, 505 So. 2d 1331 (Fla. 1987). If, however, the remedies are concurrent or cumulative, and logically can coexist on the same facts, the doctrine of election does not apply until the injured party has received full satisfaction for his injuries. Goldstein v. Serio, 566 So. 2d 1338 (Fla. 4th DCA 1997). To operate as waiver or estoppel, the election must be between coexistent and inconsistent remedies. Goldstein, 566 So. 2d at 1339. “Estoppel provides that one electing should not later be permitted to avail himself of an inconsistent course.” Williams v. Robineau, 168 So. 2d 644 (Fla. 1936).
The need for the timely election of remedy is illustrated in the case of Vaughn v. Munn, 826 So. 2d 1094 (Fla. 5th DCA 2002). In Vaughn, the court correctly ruled that the plaintiffs must elect a remedy between fraud and breach of contract. On appeal, the Fifth Circuit affirmed the trial court’s mandate of an election of remedy. Case law precedent has consistently held that failure to require an election of remedies prior to the entry of judgment constitutes error. Liddle v. Dozer, Inc., 777 So. 2d 421 (Fla. 4th DCA 2001). In the Liddle case, the lower court did not rule on an election of remedies and granted judgment under two theories of liability. On appeal, the Fourth Circuit ruled that the trial court erred in not requiring an election of remedies prior to the entry of final judgment. Similarly, in another case, the Fourth District Court found that the trial court erred when it overruled the plaintiff’s objection to an election of remedies on the first day of trial. First National Bank of Lake Park v. Gay, 694 So. 2d 784 (Fla. 4th DCA 1997). The district court ruled that a litigant has the right to await the outcome of an entire trial and elect its remedy at the end of the trial. Id. at 787. The Supreme Court of Florida has consistently upheld the view that an election of remedies can be made at any time prior to the entry of judgment. Barbe, 505 So. 2d at 1331. Innovative Material Systems, Inc. v. Santa Rosa Utilities, 721 So. 2d 1233 (Fla. 1st DCA 1998).
The case of Goldstein v. Serio is instructive on this issue. 566 So. 2d at 1339. In Goldstein, the Fourth District ruled that the trial court erred by compelling the election of remedies just prior to the commencement of trial at calendar call. Id. The Goldstein court observed that the application of the doctrine can serve “as an instrument of injustice when an election of a remedy turns out to be unavailable and yet bars the pursuit of another remedy.” Id. The Goldstein court specifically declined to follow the Third District’s conflicting ruling that the election of remedies may be required before trial as articulated in Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3rd DCA 1974). Instead, the Goldstein court was persuaded by the other districts that held the election of remedies need only be made prior to entry of judgment.
In the instant case, the Appellant elected a remedy at the trial held on November 14, 2003, which ended in mistrial. A review of the transcript indicates that on the first day of the trial held on March 16, 2004, the court forced the Appellant to elect a remedy at the pretrial conference. The Appellant objected by stating, “I am not abandoning that defense. . . .you put me in a position where I cannot argue both.” (Tr. pg. 6, line 16) The court informed the parties “I will stand by my ruling that I find the defenses to be wholly inconsistent with each other, as a result of which you will have to select which defense.” (Tr. pg. 7, line 15) In response, the Appellant’s attorney elected his remedy and replied “we are going to go forward on the reasonableness, related and necessary (defenses).” (Tr. pg 7, line 18) The Appellant effectively preserved the issue of election of remedies for appellate review on the record. M.L.D. v. State of Florida, 694 So. 2d 128 (Fla. 5th DCA 1997), Wykle v. State of Florida, 659 So. 2d 1287 (Fla. 5th DCA 1995).
In summary, the trial court is without authority to require the plaintiff to elect remedies on the day of trial, shortly before trial begins. Alvarez, 561 So. 2d at 438. The trial court incorrectly ordered an election of remedies on the first day of trial at the pretrial conference. This Court acknowledges conflict with the Third District’s opinion in Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 1974), and rules that it was a procedural error for the trial court to require an election of remedies prior to trial.
Therefore, this Court reverses and remands the case to the lower court for further proceedings consistent with this opinion.
