16 Fla. L. Weekly Supp. 1171a
Online Reference: FLWSUPP 1612MART
Insurance — Personal injury protection — Accord and satisfaction — Conspicuous statement — Where writing stating that check was full and final payment for PIP benefits was in capital letters, but writing was in smaller font than other writing on check and was included among two other lines of similar font, and writing was not in contrasting color or set off by any symbol or mark that would call attention to language, language is not conspicuous in relation to whole of instrument — Insurer’s motion for final summary judgment denied
COMPLETE REHAB AND MEDICAL CENTERS OF PLANTATION, INC., (a/a/o Miyerlandy Martinez), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-7320 COCE 53. October 12, 2009. Robert W. Lee, Judge. Counsel: Natalie Giachos, Margate, for Plaintiff. Rashad H. El-Amin, Miami, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENTRE: ACCORD AND SATISFACTION
THIS CAUSE came before the Court on October 12, 2009 for hearing of Defendant’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:
The insurance company forwarded the Plaintiff a check, which Plaintiff accepted and cashed. The check provided on its face that the payment was “as full and final payment of PIP benefits.” The Defendant urges this language is “conspicuous,” as required for effective application of statutory accord and satisfaction under Florida Statute §673.3111(2). The Florida Uniform Commercial Code defines “conspicuous” in Florida Statute §671.201(10). The language at issue in the instant case, while in all capital letters, was in a font smaller than other writing on the check, was included as part of two other lines of similar font, was not in a contrasting color, and was not set off by any “symbols or marks that call attention to the language.” See id. §671.201(10)(a) & (b). The question of conspicuousness is a matter of law to be decided by the court. Id. §672.201(10). The Court concludes that the language, taken not in an isolated sense but in relation to the whole of the instrument, is not conspicuous. See Rudy’s Glass Construction Co. v. E.F. Johnson Co., 404 So.2d 1087, 1089-90 (Fla. 3rd DCA 1981). The Court agrees with the decision of the Honorable Edward H. Merrigan in the similar case of Atlantic Acu-Medical Center Corp. v. United Automobile Ins. Corp., 16 Fla. L. Weekly Supp. 781 (Broward Cty. Ct. 2009). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is DENIED.
