16 Fla. L. Weekly Supp. 97b
Insurance — Personal injury protection — Accord and satisfaction — Where medical provider cashed draft tendered by insurer that contained conspicuous notation that draft was for “full/final PIP payment,” insured’s claim was unliquidated and subject to bona fide dispute, and amount was tendered in good faith, final judgment is rendered in favor of insurer
PRIME MEDICAL & REHAB SERVICE, A/A/O NORMA ACEBEDO, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-6737 SP 25. September 26, 2008. Lawrence D. King, Judge. Counsel: Rita Baez, for Plaintiff. Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY DISPOSITION PURSUANT TO FLA. SM. CL. R. 7.135 ANDFINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on the 22nd day of September 2008 on Defendant’s Motion for Summary Disposition Pursuant to Fla. Sm. Cl. R. 7.135 and was heard at 9:00 A.M. at the Coral Gables District Court, 3100 Ponce De Leon Boulevard, Coral Gables, Florida 33134. Majid Vossoughi, Esq., appeared on behalf of the Defendant, United Automobile Insurance Company, and Rita Baez, Esq. appeared on behalf of the Plaintiff, Prime Medical & Rehab Service, a/a/o Norma Acebedo. This Court reviewed Defendant’s Motion for Summary Disposition Pursuant to Fla. Sm. Cl. R. 7.135 and having heard argument from counsel for both parties and being otherwise fully advised in the premises makes the following factual findings and conclusions of law.
FACTUAL FINDINGS
1. The material facts argued by both parties with respect to the issue of law before this Court is undisputed and are as follows:
2. Plaintiff, Prime Medical & Rehab Service, a/a/o of Norma Acebedo (“PRIME MEDICAL”) rendered medical treatment and services to Norma Acebedo (“ACEBEDO”) from 2/15/07 through 5/1/07 in the amount of $3,975.00.
3. On 3/21/07 ACEBEDO attended an Independent Medical Examination (“IME”) with Dr. George Revito, M.D., who opined that no further treatment would be reasonable, related, or medically necessary for ACEBEDO’s loss.
4. Defendant, United Automobile Insurance Company (“UNITED”), by means of an Explanation of Benefits dated 11/08/07, tendered payment of PIP benefits in the amount of $1,300.00 to PRIME MEDICAL as “FULL/FINAL PIP PAYMENT” andadvised as follows:
On 3/21/07 the above noted claimant was examined by Dr. George Revito, M.D. The Independent Medical Examination (IME) physician has advised us that in his/her opinion, any further MEDICAL treatment on or after 3/21/07 would not be reasonable, related or medically necessary. Any services rendered by a MD or diagnostic tests referred by a MD are not reasonable, necessary or related and therefore not payable.
Taking the above stated issues under advisement, the bills have been applied to the $1,000.00 deductible.
Taking the above stated issues under advisement, attached please find a draft in the amount of $1,300.00.
If you would like further information or wish to dispute our assessment, please do not hesitate to contact the undersigned.
5. Accordingly, UNITED tendered amounts it believed represents reasonable, related, and medically necessary treatment and undisputed by IME of Dr. George Revito, M.D., with the condition that amounts tendered is “FOR FULL/FINAL PIP PAYMENT.” Draft for PIP Benefits tendered by UNITED was cashed by PRIME MEDICAL and was payable to the payee as follows:
PRIME MEDICAL & REHAB SERVICE F/A/O NORMA V. ACEVEDO, DOL: 02/12/07 FOR FULL/FINAL PIP PAYMENT ACCT # 00011370
6. On 3/14/08, and in response to a pre-suit demand letter, UNITED also forwarded to counsel for PRIME MEDICAL an “EOB — Demand Response” that advised as follows:
On 3/21/07 the above noted claimant was examined by Dr. George Revito, M.D. The Independent Medical Examination (IME) physician has advised us that in his/her opinion, any further MEDICAL treatment on or after 3/21/07 would not be reasonable, related or medically necessary. Any services rendered by a MD or diagnostic tests referred by a MD are not reasonable, necessary or related and therefore not payable.
Taking the above stated issues under advisement, the bills have also been applied to the deductible of 1000. Therefore, the payable amount of benefits was $1300.00. Please also reference the Explanation of Benefits dated 11/3/07. I have enclosed a copy of the Explanation of Benefits, No Fault Payment Register, and the draft that cleared our banking system in full accord and satisfaction of the claim.
If, upon your thorough review of the preceding information, including any and all attachments, you believe that we have not fully responded to your demand; kindly notify the undersigned, in writing, within five days. When doing so, we ask that you be as specific as possible in your written notification so that we understand the specific nature of your dispute. We can then work with you to resolve any misunderstanding. If we do not receive a written response detailing any deficiencies, we will assume that our response is satisfactory.
7. On 05/13/08, and despite cashing UNITED’s previously tendered draft as “FULL/FINAL PIP PAYMENT”, the instant lawsuit was filed by PRIME MEDICAL seeking recovery of additional PIP benefits from UNITED.
LEGAL ANALYSIS
1. Fla. Sm. Cl. R. 7.135 provides:
At pretrial conference or at any subsequent hearing, if there is no triable issue, the court shall summarily enter an appropriate order or judgment.
2. Fla. Stat. 673.3111(1) provides:
(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.
3. Fla. Stat. 673.3111(2) in turn provides:
(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 statement to the effect that the instrument was tendered as full satisfaction of the claim.
4. Defendant has met its prima facie case and the undisputed facts of the instant matter reveal that Defendant has satisfied all elements pursuant to Fla. Stat. 673.3111. First, Defendant tendered an “instrument”1 to Plaintiff as “full satisfaction”2 of Plaintiff’s claim within the meaning and intent of Fla. Stat. 673.3111. Second, Plaintiff’s claim for PIP benefits is not only “unliquidated”3 but also subject to a “bona fide”4 dispute. Finally, Defendant tendered amounts to Plaintiff in “good faith”5 and the draft tendered by Defendant contained a “conspicuous”6 statement to the effect that the instrument was tendered as full satisfaction of the claim and same was cashed by the Plaintiff.
5. Had PRIME MEDICAL intended that UNITED remain obligated under its contract, then they should not have cashed draft tendered by UNITED as “FULL/FINAL PIP PAYMENT” since strong public policy supports the use of accord & satisfaction as a convenient and valuable tool for resolving disputes informally without litigation. See e.g., Martinez v. South Bayshore Tower, 979 So.2d 1023 (Fla. 3rd DCA 2008) (citing to Burke Co. v. Hilton Development Co., 802 F. Supp. 434 (N.D. Fla. 1992). As noted in Burke, “Simply put, the creditor cannot have his cake and eat it too.” Id. at 439.
6. Accordingly, based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Disposition Pursuant to Fla. Sm. Cl. R. 7.135 is GRANTED. Final Judgment is hereby rendered in favor of Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, and against Plaintiff, PRIME MEDICAL & REHAB SERVICE, A/A/O NORMA ACEBEDO. Plaintiff shall take nothing from this action and Defendant shall go hence without day. The Court reserves jurisdiction to award Defendant attorney’s fees and costs, if applicable.
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1Fla. Stat. 673.1041(2) and (5) define “instrument” to mean a negotiable instrument and provide that an instrument is a “note” if it is a promise and a “draft” if it is an order.
2Draft tendered by UNITED states in a conspicuous manner that it is for “DOL: 02/12/07” and that it is “FOR FULL/FINAL PIP PAYMENT ACCT # 00011370.”
3Damages are “unliquidated” if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment. Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983). In the context of an action for PIP benefits damages are unliquidated since PIP benefits are not due and/or overdue unless the underlying services are proven to be reasonable, related, and medically necessary pursuant to Defendant’s contract of insurance, Fla. Stat. 627.736, and same is part of Plaintiff’s burden of proof in a PIP case. Derius v. Allstate Indem Co., 723 So.2d 271 (Fla. 4th DCA 1998).
4At the time Defendant tendered payment there existed a bona fide dispute as to the medical necessity of Plaintiff’s claim for PIP benefits subsequent to 03/21/07 based on Independent Medical Examination of George Revito, M.D.
5“Good faith” is essentially defined as honesty in fact and the observance of reasonable commercial standards of fair dealing. See e.g., Article 3-103(a)(4) of Uniform Commercial Code. As it pertains to Defendant, Defendant tendered amounts Defendant believed was medically necessary, due and owing, and not subject to the Independent Medical Examination of Dr. Geroge Revito, M.D., pursuant to the requirement of its policy of insurance and Fla. Stat. 627.736.
6Draft tendered by UNITED states in a conspicuous manner that it is for “DOL: 02/12/07” and that it is “FOR FULL/FINAL PIP PAYMENT ACCT # 00011370.”
