16 Fla. L. Weekly Supp. 781a

Online Reference: FLWSUPP 168BAPTI

Insurance — Personal injury protection — Accord and satisfaction — Conspicuous statement — Where full and final payment language in insurance draft for reduced amount of claim was located in the “pay to order” section of draft, not at heading of draft, and was in the same size font as surrounding text, and full and fair language in accompanying explanation of benefits was also in same size font as surrounding text, neither draft nor EOB contained conspicuous statement that draft was tendered as full satisfaction of claim — Medical provider’s endorsement and cashing of draft did not give rise to accord and satisfaction precluding action for unpaid portion of bills

ATLANTIC ACU-MEDICAL CENTER CORP., a/a/o GUILLAUME BAPTISTE, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CORPORATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-2305 CONO 70. May 26, 2009. Edward H. Merrigan, Judge. Counsel: Steven N. Ainbinder, Law Offices of Steven N. Ainbinder, P.A., Boca Raton, for Plaintiff. Fesner Petion, Coral Gables, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AS TO ITS AFFIRMATIVE DEFENSE OF ACCORD AND SATISFACTION

The above captioned case came to be heard by the Court, pursuant to the Motion of the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, for Final Summary Judgment against the Plaintiff, ATLANTIC ACLL-MEDICAL CENTER CORP., as to its affirmative defense of accord and satisfaction. The Court, having heard argument by counsel for the respective parties involved herein, having considered the statutory and case law, the various memoranda of law submitted by the parties, and having examined the record evidence, finds that the Plaintiff’s endorsement and cashing of the insurance draft issued by the Defendant did not give rise to an accord and satisfaction so as to preclude the Plaintiff from seeking payment of the remaining uncompensated medical bills and as a legal basis for the Defendant to deny payment of the remaining medical bills submitted by the Plaintiff in the instant case.

The Court finds that:

1. This lawsuit stems from the nonpayment of Personal Injury Protection (P.I.P.), medical benefits. As a result of a March 12, 2004 motor vehicle collision, Guillaume Baptiste sought medical treatment from the Plaintiff, from April 5, 2004 through July 22, 2004. The Plaintiff, ATLANTIC ACU-MEDICAL CENTER CORP., obtained an assignment of benefits from its patient, Guillaume Baptiste, who is an insured under an automobile insurance policy with the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.

2. On April 8, 2005, the Defendant provided the Plaintiff with an explanation of benefits letter and issued an insurance draft in the amount of $968.00. In the pay to order section of the insurance draft, the Defendant wrote the following: “ATLANTIC ACU MEDICAL F/A/O GUILLAUME BAPTISTE @ 80% LESS 2000 DED FOR FULL AND FINAL PIP PAYMENT ON PEER REVIEW REPORT FOR PIP BENEFITS.”

3. Also, the Defendant issued a check in the amount of $56.00 for “PIP” Interest.

4. The font size of the FULL AND FINAL PIP PAYMENT language contained in the pay to order section of the draft was the same size as the surrounding text.

5. The Defendant did not write any full and final payment language on the back of the check where the Plaintiff endorsed same.

6. On the explanation of benefits letter, the Defendant advised the Plaintiff that it obtained a peer review, which thoroughly reviewed the charges submitted by the Plaintiff and believed based upon the peer review that the charges submitted by the Plaintiff were, “excessive or not reasonable, related to the loss or medically necessary.” The letter contained a copy of the peer review obtained by the Defendant. The bottom of the letter stated, “Please accept this as full and final payment of the above mentioned claim for PIP benefits only.”

7. The Defendant contends that it is entitled to an Order granting its Motion for Final Judgment as to its accord and satisfaction affirmative defense, due to Plaintiff endorsing and depositing the check in the amount of $968.00 into its bank account.

8. Section 673.3111, Florida Statutes, which codified the affirmative defense of accord and satisfaction, states that:

(1) If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliquidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, the following subsections apply. (Emphasis Added).

(2) Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statementto the effect that the instrument was tendered as full satisfaction of the claim. (Emphasis added).

9. Counsel for the Plaintiff alleged that it is a factual issue as to whether the check in the amount of $968.00 was tendered in good faith. The court does not address this argument.

10. Counsel for the Plaintiff argued that the accompanying check and letter did not contain a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

11. Florida Statute §671.201 lists the general definitions of certain words and states that the words or phrases defined in this section have the meanings stated.

12. Florida Statute §671.201(10) states that “conspicuous,” “with reference to a term, means so written, displayed, or presented that a reasonable person against whom it is to operate ought to have noticed it. Whether a term is “conspicuous” is a decision for the court. Conspicuous terms include the following:

(a) A heading in capitals in a size equal to or larger than that of the surrounding text or in a type, font, or color in contrast to the surrounding test of the same or lesser size; or

(b) Language in the body of a record or display in a type larger than that of the surrounding text; in a type, font, or color in contrast to the surrounding text of the same size; or set off from the surrounding text of the same size by symbols or other marks that call attention to the language.”

13. A review by this Court of the insurance draft issued by the Defendant to the Plaintiff revealed that the full and final payment language was not located at the heading or top of either the front or back of the insurance draft.

14. A review by this Court of the insurance draft issued by the Defendant to the Plaintiff revealed that the full and final payment language contained in the pay to the order section was the same size as the surrounding text.

15. A review by this Court of the letter written by the Defendant to the Plaintiff which accompanied the insurance draft revealed that the full and final payment language on the bottom of the letter was the same was the same size as the surrounding text.

The Court being otherwise fully advised in the premises, it is therefore,

ORDERED AND ADJUDGED that:

1. Based upon the arguments set forth in Defendant’s Motion for Final Summary Judgment, Plaintiff’s Memorandum of Law in Opposition to same, as well as argument by counsel for the respective parties involved herein, the Motion of the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, for Final Summary Judgment, against the Plaintiff, ATLANTIC ACU-MEDICAL CENTER CORP., as to its affirmative defense of accord and satisfaction is hereby DENIED.

2. All other affirmative defenses being asserted by the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, are not affected by the entry of this order.