17 Fla. L. Weekly Supp. 916a
Online Reference: FLWSUPP 1710THOM
Insurance — Personal injury protection — Accord and satisfaction — No error in denying insurer’s motion for summary judgment on affirmative defense of accord and satisfaction and granting medical provider’s competing motion for summary judgment where insurer did not show that provider agreed that check tendered for payment of PIP benefits was in full payment of all claims, and insurer offered nothing to refute provider’s affidavit indicating that there was no agreement between parties that check was in full payment and in accord and satisfaction
Cert. denied at 35 Fla. L. Weekly D2686a on basis that, although circuit court incorrectly applied law, the error was not remediable on second tier certiorari.
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PALM CHIROPRACTIC CENTER, INC., A/A/O Joyce Thomas, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 09-013401 and 08-048999. (Consolidated.) July 8, 2010. Linda Pratt, Judge. Counsel: Michael J. Neimand, Miami, for Appellant. Cris E. Boyar, Margate, for Appellee.
OPINION
(RODRIGUEZ-POWELL, Judge.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon these consolidated appeals by Appellant, United Automobile Insurance Company, of the trial court’s Final Judgment in Favor of the Plaintiff, Appellee, Palm Chiropractic Center, a/a/o Joyce Thomas.
According to the record, Ms. Thomas was involved in an accident on April 30, 2007. Thereafter, she was treated by Appellee, Palm Chiropractic Center, Inc., and assigned her rights to Personal Injury Protection (“PIP”) Benefits to Appellee. Appellant paid Appellee for services rendered from May 4, 2007 through July 6, 2007. Upon payment, Appellant submitted a explanation of benefits letter dated July 30, 2007, along with a check, as evidenced by the display draft, which stated, “Pay to the order of PALM CHIROPRACTIC CTR FOR FULL & FINAL PAYMENT OF PIP BENEFITS F/A/O JOYCE THOMAS.”
Meanwhile, Ms. Thomas received additional treatment from Appellee on July 13, 2007 through August 6, 2007. Appellant refused pay the PIP Benefits for the additional treatment to Appellee. In turn, Appellee filed the underlying action for payment of the outstanding PIP Benefits.
Standard of Review:
This Court will apply a de novo standard of review to an order granting summary judgment. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000).
On appeal, Appellant contends that the trial court erred in denying its motion for summary judgment on issue of accord and satisfaction. Appellant, relying primarily upon St. Mary’s Hospital, Inc. v. Schocoff,725 So. 2d 454, 456 (Fla. 4th DCA 1999), argues that its motion summary judgment should have been granted and Appellee’s motion for summary judgment on the affirmative defense of accord and satisfaction should have been denied.
Appellant’s first argument is foreclosed under the Fourth District Court’s opinion in St. Mary’s. In order for Appellant to succeed on its motion for summary judgment it would have been required to show that Appellee “agreed” with Appellants position that the first check tendered for payment of the PIP Benefits was in full payment of all claims. See id. at 456. Accordingly, the trial court’s order denying Appellant’s motion for summary judgment is affirmed.
Appellant’s second issue on appeal is that the trial court erred in granting Appellee’s motion for summary judgment on Appellant’s affirmative defense of accord and satisfaction. On the record before this court, this claim is without merit.
At the hearing on the parties’ competing motions for summary judgment Appellant wholly failed to refute Appellee’s affidavit indicating that there was no agreement between the parties that the first check tendered to Appellee was in full payment or in accord and satisfaction of all of the PIP Benefits. As Appellant offered nothing to dispute Appellee’s affidavit, the trial correctly granted Appellee’s motion for summary judgment. As such, the trial court’s order granting Appellee’s motion for summary judgment is affirmed.
Upon the foregoing, Appellee’s motion for appellate attorney’s fees is granted and this matter is remanded to the trial court to determine the amount of such fees.
ORDER AND ADJUDGED that the trial court’s Final Judgment is hereby AFFIRMED; Appellee’s motion for appellate attorney’s fees is granted and this matter is remanded to the trial court to determine the amount of such fees.
