16 Fla. L. Weekly Supp. 1068a
Online Reference: FLWSUPP 1611APER
Insurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Where medical provider has submitted affidavit attesting that provider’s acceptance of insurer’s check for reduced payment was not intended as full and final settlement of provider’s entire claim, factual issue exists as to intent to effectuate accord and satisfaction, and summary judgment is precluded
BRIAN M. SILVER, D.C., PA., a Florida Corporation (assignee of Perez, Ada), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-38137 SP 23 (4). September 14, 2009. Eric Wm. Hendon, Judge. Counsel: Russel Lazega and Yasmin Babain, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Karen Trefzger, Office of the General Counsel, Miami Gardens, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, came before the court for hearing on August 25, 2009 on Defendant’s Motion for Final Summary Judgment based upon Defendant’s affirmative defense of accord and satisfaction, and the court, having reviewed the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a P.I.P. insurance case. Defendant seeks summary judgment alleging that an accord and satisfaction of the debt at issue was reached with the Plaintiff prior to suit. Specifically, Defendant maintains that in response to Plaintiff’s claim it issued two payments to Plaintiff in the amount of $2,162.44 (for P.I.P. benefits) and $44.09 (for late-payment interest). The benefits check stated on it “Full and Final Payment of P.I.P. benefits” with no dates of service indicated on the check. The interest check contained no “full/final” reference. The checks were accompanied by a letter indicating essentially that Defendant made reduced payments pursuant to the 2008 PIP fee schedule and that benefits for services on or after 5/29/08 would not be paid based upon the results of an IME. Plaintiff cashed both the benefits and interest check and Defendant seeks final summary judgment asserting that the Plaintiff’s acceptance of Defendant’s tendered checks constitutes an accord and satisfaction of Plaintiff’s entire claim.
Plaintiff argues in opposition that: 1) there was no intent by the Plaintiff to effectuate an accord and satisfaction (based upon the affidavit of the Plaintiff); 3) there was no clear and conspicuous statement that the draft was tendered as a settlement of a disputed debt; 4) the tender was not supported by valid consideration because the insurer paid only sums which Plaintiff claims it already undisputedly owed; 5) the offer was not a “good faith” offer as the fee schedule calculations identified by Defendant in its communication to Plaintiff accompanying the check are not accurate reflections of the fee schedule allowances; 6) Defendant’s affidavit was deficient as it did not state that it was based upon personal knowledge and 7) material discovery was still pending.
Conclusions of Law: The operative issue in determining whether an accord and satisfaction has occurred is intent. Plaintiff has submitted the affidavit of Dr. Brian M. Silver, attesting that Plaintiff’s acceptance of Defendant’s check was not intended as a full and final settlement of Plaintiff’s entire claim and had the parties intended an accord and satisfaction the Defendant could have taken the additional step of making it clear and unequivocal in its communications that the payments were intended as an offer to settle the entire claim. Based upon the affidavit of the Plaintiff the court finds that there remains a fact issue for the jury to determine as to intent which precludes entry of summary judgment for the Defendant.
The Court does not reach the remaining issues raised by Plaintiff as the court has reached its ruling denying the motion based upon the material fact issue of intent.
Accordingly, Defendant’s Motion for Final Summary Judgment is DENIED.
