17 Fla. L. Weekly Supp. 703a
Online Reference: FLWSUPP 1708MIL3Insurance — Personal injury protection — Accord and satisfaction — Motion for summary judgment on insurer’s accord and satisfaction defense is denied where there exists factual issue as to whether bona fide dispute existed as to amounts owed or whether the parties even understood what amounts each claimed to be at issue
MR SERVICES I, LLC D/B/A C & R IMAGING OF HOLLYWOOD, a Florida Corporation (assignee of Miller, Richard), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-02730 COCE 56. April 13, 2010. Linda R. Pratt, Judge. Counsel: Russel Lazega and Yasmin Babain, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Russell Kolodziej, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on March 17, 2010 on Defendant’s Motion for Final Summary Judgment on 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 an MRI service to the patient on March 11, 2008 for injuries sustained in a motor vehicle accident on January 10, 2008. In response to Plaintiff’s claim, Defendant issued two payments to Plaintiff in the amount of $1,006.40 (for P.I.P. benefits) and $15.16 (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 that Defendant made reduced payments pursuant to the 2008 PIP statute. 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 bonifide dispute between the parties as to the amounts owed; 2) 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; and 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.
Conclusions of Law: The Court denies summary judgment as a fact question exists as to whether a bonifide dispute existed between the parties as to what amounts were owed or whether the parties were even on the same page about what was claimed to be at issue. Based upon its finding that a material fact question exists as to a necessary element of the defense, the Court does not reach the remaining arguments raised by Plaintiff. Therefore it is
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is DENIED.
