17 Fla. L. Weekly Supp. 684a
Online Reference: FLWSUPP 1708DELGInsurance — 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 — Moreover, where tendered offer was less than amount that insurer represented as being payable pursuant to provider’s usual and customary rates, tendered amount was not tendered in good faith
ANN K MEDICAL OFFICE, INC., a Florida Corporation (assignee of Delgado, Rosa) Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-26930 SP23 (1). May 21, 2010. Myriam Lehr, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on April 29, 2010 on Defendant’s Motion for Final Summary Judgment as to the Defendant’s Accord and Satisfaction Defense and the Court, having reviewed the motion; entire Court file; relevant legal authorities; heard argument; and been sufficiently advised in the premises, finds as follows:
Factual Background:This is a P.I.P. insurance case. Plaintiff is an assignee medical provider who rendered medical services to the patient from May 3, 2007 through May 29, 2007 for injuries sustained in a motor vehicle accident on May 2, 2007. In response to a demand letter submitted directly from the Plaintiff, Defendant issued three payments to Plaintiff in the amount of $2,021.15 (for P.I.P. benefits); $81.62 (for late-payment interest); and $205.92 (for penalty and postage). The benefits check stated on it “Full/Final P.I.P. Benefits Payment” with no dates of service indicated on the check. Neither the interest check nor the penalty/postage check contained “full/final” reference. The checks were accompanied by a letter indicating that Defendant made reduced payments pursuant to Defendant’s usual and customary rates. Plaintiff cashed the benefits, interest, and penalty/postage checks 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, and therefore, no “meeting of the minds” (based upon the affidavit of the Plaintiff); 2) the offer was not a “good faith” offer as the amount tendered was less than the amount Defendant represented as being payable pursuant to Defendant’s usual and customary rates (as admitted by Defendant, specifically Defendant admits that additional amounts are owed to Plaintiff); 3) there was no clear and conspicuous statement that the draft was tendered as a settlement of a disputed debt; and 4) the tender was not supported by valid consideration.
Conclusions of Law:The Court denies summary judgment and finds that the Defendant has not met its burden of proof to demonstrate that all of the elements of accord and satisfaction have been met.
To meet the defense of accord and satisfaction, Defendant must show that the parties mutually intended to affect a settlement of the claim. In the instant case, the filed Affidavit of Carlos Rivero, which attests that Plaintiff’s acceptance of Defendant’s check was not intended as a full and final settlement of Plaintiff’s entire claim, clearly demonstrates that there was no mutual intent to effect a settlement of the claim, and therefore, there was no “meeting of the minds,” a required element for any contract formation.
More importantly, as admitted by the Defendant, the tendered amount is not the correct amount owed as the Defendant’s tendered offer was less than the amount Defendant represented as being payable pursuant to Defendant’s usual and customary rates. F.S. s. 673.3111 ‘Accord and satisfaction by use of instrument’ provides, inter alia, that the offeror must prove that the tendered instrument is being tendered “in good faith.” The Uniform Commercial Code defines “good faith” as “honesty in fact and the observance of reasonable commercial standards of fair dealing.” See Article 3-103(a)(4) of Uniform Commercial Code. In the instant case, the Court finds that the Defendant’s tendered amount fails to meet the F.S. s. 673.3111 and U.C.C. requirements of being “honest in fact.”
Accordingly, Defendant’s Motion for Final Summary Judgment is DENIED.
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is DENIED.
