15 Fla. L. Weekly Supp. 388a
Insurance — Personal injury protection — Coverage — Affirmative defenses — Accord and satisfaction — Insurer cannot assert accord and satisfaction based on medical provider’s acceptance of check for reduced amount for MRI where insurer failed to pay statutorily mandated schedule for MRI, provider did not agree to accept lesser amount tendered as payment in full, and there was no correspondence attached to check tendered
STAND-UP MRI OF MIAMI, INC. (Cesar Mairena, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-009365 COCE 56. January 29, 2008. Linda R. Pratt, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Rashad El-Amin, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT’S FIRST AND SECOND AFFIRMATIVE DEFENSES RE: ACCORD AND SATISFACTION
THIS CAUSE came before the Court on December 11, 2007 for hearing on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s First and Second Affirmative Defenses regarding Accord and Satisfaction. The Court, having reviewed the Motions and entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised on the premises, makes the following findings:
1. The instant cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on April 12, 2007.
2. On or about July 19, 2007 Defendant filed its Corrected Answer and Affirmative Defenses.
3. Defendant’s first affirmative defense states as follows:
“. . .defendant asserts the defense of accord and satisfaction. Specifically, the Defendant and Plaintiff entered into an agreement with consideration whereby all disputes between the parties were settled.
4. Defendant’s second affirmative defense states as follows:
“. . .the Defendant asserts payment in full. Specifically, the Defendant tendered and the Plaintiff accepts all amount due and owning under the policy of insurance issued by the Defendant to the claimant.”
5. On July 7, 2007, Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”) filed its Motion for Summary Judgment RE: Accord and Satisfaction, stating, “drafts for PIP benefits and interest represented full and final payment of Plaintiff’s bill and were accepted and negotiated by the Plaintiff.”
6. Florida Statute §627.736(4)(b) states in pertinent part, “When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted or declined to pay.”
7. Furthermore, Fla. Stat. §627.736(4)(b) states “Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.”
8. Having received no response from UNITED, Plaintiff submitted its 15-day Demand Letter on November 20, 2006, pursuant to Fla. Stat. §627.736(11), well after the statutorily mandated 30 day period for the insurer to respond to the initial bill.
9. On January 5, 2007, well after the statutorily mandated 15 day period for the insurer to respond to said Demand Letter, United sent the Plaintiff a check, unaccompanied by any correspondence, in an amount other than the amount demanded. Plaintiff deposited the check without any special endorsement.
10. “Accord and satisfaction results when there is an existing dispute as to the proper amount due from one party (the debtor) to another party (the creditor) and the parties mutually intend to effect settlement of the existing dispute by a superceding agreement and the debtor tenders, and the creditor accepts, performance of the new agreement in full satisfaction and discharge of the debtor’s prior disputed obligation, Republic Funding Corp. of Florida v. Juarez, 563 So.2d 145, 146 (Fla. App. 5 Dist., 1990).
11. “In the absence of a dispute and a finding or admission that the parties intended to, and did, reach an accord and agreed to resolve that dispute by payment of an agreed amount, a partial payment of a legal obligation does not act to satisfy and discharge that obligation,” Republic Funding Corp. of Florida v. Juarez, at 147.
12. The amount payable was not in dispute prior to the issuance of the check from United. The reasonableness of an MRI bill may not be controverted as MRI bills are set by 200% of the allowable amount under the participating physician fee schedule of Medicare Part B for 2001, for the area in which the treatment was rendered and adjusted for the consumer price index. Fla. Stat. 627.736(5)(b)(5). See also Millennium Diagnostic Imaging Center, Inc. v. Security National Insurance Company, 882 So.2d 1027 (Fla. 3rd DCA 2004).
13. Enclosed with Plaintiff’s initial billing package was an Assignment of Benefits, Power of Attorney and Release of Information, signed by the insured and accepted by the insurer. Said Assignment states in relevant part:
The provider hereby objects to any reductions or partial payments. Any partial or reduced payment, regardless of the accompanying language, issued by the insurer and deposited by the provider shall be done so under protest, at the risk of the insurer, and the deposit shall not be deemed a waiver, accord, satisfaction, discharge, settlement or agreement by the provider to accept a reduced amount as payment in full.
14. UNITED did not produce a written agreement signed by the provider as well as the insurer, or any other evidence supporting its contention that an agreement had been made.
15. Plaintiff filed the Affidavit of Carrie Sarrapede, in which she testifies that she has personal knowledge of the billing practices and procedures for the Plaintiff, that the Plaintiff did not agree to accept the lesser amount tendered by UNITED, and that there was no correspondence attached to the check tendered.
16. On September 27, 2007, Saravanessa Columbie testified under oath to the following:
Q: Does your file reflect any communication with Stand-Up MRI prior to sending payment?
A: No.
P. 7, Deposition of Saravanessa Columbie on 09/27/07.
17. UNITED failed to pay the statutorily mandated schedule in that it failed to annually adjust the amounts it pays to MRI providers in accordance with the Consumer Price Index.
18. UNITED cannot now assert that it reached an accord and satisfaction with the Plaintiff.
It is therefore,
ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Summary Judgment as to Accord and Satisfaction is denied.
2. Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s First and Second Affirmative Defenses is Granted.
