17 Fla. L. Weekly Supp. 465b

Online Reference: FLWSUPP 1706CHAU

Insurance — Personal injury protection — Settlement — Enforcement — Insurer’s motion to enforce settlement is denied where insurer tendered settlement check containing “full and final settlement” notation which was not mentioned in settlement negotiations

CENTRAL FLORIDA INJURY & WELLNESS CENTER, P.A., as assignee of Jane Chau, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Osceola County. Case No. 08-SC-2671. April 1, 2010. Ronald A. Legendre, Judge. Counsel: Michael Tierney, Michael Tierney, P.A., Winter Park. Neil Andrews, Orlando.

ORDER DENYING DEFENDANT’S MOTION TO ENFORCE SETTLEMENT

THIS CAUSE having come before the Court on March 9, 2010, and the Court having reviewed the Motion(s), having heard testimony of witnesses, and being otherwise duly advised in the premises, the Court finds as follows:

1. Ms. Jane Chau is a Personal Injury Protection (P.I.P) insured of Defendant with regards to an automobile accident which occurred on March 8, 2007.

2. On or about August 12, 2008, Central Florida Injury & Wellness Center, P.A., as the assignee of Jane Chau, filed a lawsuit in the amount of $343.40 to recover payments for services and supplies provided to Ms. Chau on dates of service May 9, 2007-August 3, 2007.

3. On September 25, 2008, Defendant’s representative, Chris Keller, sent a letter notifying Plaintiff of Progressive American Insurance Company’s confession of judgment.

4. On September 25, 2008, Mr. Keller sent a second letter advising Plaintiff of Progressive American Insurance Company’s confession of judgment and enclosing a check in the amount of $570.05, as payment for date of service May 9, 2007-August 3, 2007.

5. Check, number 458373955 contains the following language “Full/Final Sttmnt for D.O.S. 5/9/07-8/3/07.”

6. On October 13, 2008, Plaintiff responded to Mr. Keller confirming receipt of check number 458373955 in the amount of $570.05. In addition to confirming receipt of the check, Plaintiff requested that Defendant re-issue the check without the language “Full and Final Settlement” as Plaintiff has not agreed to this language.

7. Plaintiff’s counsel made several attempts, on at least three separate occasions, to obtain the check without the “full and final settlement” language from the Defendant. The three attempts were (1) the letter to Defendant dated October 13, 2008 requesting re-issuance of the check, (2) the e-mail exchange between Plaintiff’s and Defendant’s counsel dated January 15, 2009, and (3) the e-mail exchange between Plaintiff’s and Defendant’s counsel dated June 9, 2009.

8. Defendant did not re-issue the check despite these requests.

9. On August 27, 2009, Defendant filed a Motion to Enforce Settlement.

10. At the hearing on Defendant’s Motion to Enforce Settlement, the Court heard testimony from Mr. Chris Keller and Dr. Michael Soffer in regards to the settlement negotiations.

11. Section 673.3111, Florida Statutes (2009), addresses accord and satisfaction by use of instrument.

12. The term “full and final settlement” on a draft is a material term because Plaintiff cannot cash the check and successfully rely on a reservation of rights to defeat an express, written condition that is described on the check. Ennia General Insurance Company, LTD. v. Auld, 506 So.2d 62, 63 (4th DCA 1987).

13. Whether a contract is oral or written, it is essential that parties mutually agree upon material terms. Holloway v. Gutman, 707 So.2d 356, 357 (5th DCA 1998).

14. Both parties must assent to the same thing in the same sense, and their minds must meet as to all terms. Without a meeting of the minds, there can be no contract of any kind. Holloway, 707 So.2d at 358 quoting State v. Family Bank of Hallandale, 623 So.2d 474 (Fla.1993).

15. If a person offers to do a definite thing, and the person to whom the offer is made accepts conditionally, or introduces a new term into the acceptance, his answer is not an acceptance; but it is either a mere expression of willingness to that, or it is in effect a counter offer, which must be accepted or assented to before a contract can result. Holloway v. Gutman, 707 So.2d 356, 357 (5th DCA 1998).

IT IS HEREBY ORDERED AND ADJUDGED:

A. Defendant’s Motion to Enforce Settlement is DENIED as follows.

i. “Full and Final Settlement” is an additional term with very high consequences as it could exclude the attorney’s fees and leave the negotiations up in the air.

ii. It is clear that “full and final settlement” is never mentioned on any of the preliminary negotiations from Mr. Keller to Mr. Tierney’s office, and it does appear on the final check for the first time. That being such a difference from what was originally stated in the offers of settlement, it would put a party on notice that, if the check is cashed with the “full and final settlement” language, the drawee of the check would clearly be responsible under the law for not being able to proceed on any future claim, known or unknown.