18 Fla. L. Weekly Supp. 116a
Online Reference: FLWSUPP 1801DELG
Insurance — Personal injury protection — Accord and satisfaction — Provider’s acceptance and cashing of insurer’s check, which stated “Final/Final P.I.P. Benefits Payment” with no dates of service indicated on the check did not amount to accord and satisfaction where there was no showing that parties mutually intended to effect settlement of provider’s claim
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). November 10, 2010. Myriam Lehr, Judge. Counsel: Law Office of Russel Lazega, North Miami. Office of the General Counsel/Trial Division, Miami Gardens.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT AS TO DEFENDANT’SFIRST AFFIRMATIVE DEFENSE OF ACCORDAND SATISFACTION
THIS CAUSE came before the Court for hearing on November 3, 2010 on Plaintiff’s Motion for Partial Summary Judgment as to the Defendant’s First Affirmative Defense of Accord and Satisfaction 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 maintains as its first and sole defense that the Plaintiff’s acceptance of Defendant’s tendered checks constitutes an accord and satisfaction of Plaintiff’s entire claim.
The Plaintiff has tendered the Affidavit of the Plaintiff in support of summary judgment which attests that it did not intend for the Defendant’s payment to constitute a settlement of this claim for P.I.P. benefits and that Plaintiff did not agree to forbear from pursuing the remaining amounts owed.
Conclusions of Law: The Court grants partial summary judgment in favor of the Plaintiff as to the Defendant’s ‘accord and satisfaction’ defense and finds that the record before the court does not indicate that there was a meeting of the minds between the parties that the Defendant’s payment constituted a full settlement of the claim.
To meet the defense of accord and satisfaction, there must be a showing that the parties mutually intended to affect a settlement of the claim. Republic Funding Corp. of Florida v. Juarez, 563 So.2d 145, 146 (Fla. App. 5 Dist., 1990).
In the instant case, the only evidence before the Court which goes to the parties’ intent to affect an accord and satisfaction is the Affidavit of the Plaintiff and the Affidavit of the Plaintiff attests that there was no intent to affect an accord and satisfaction of the claim.
Additionally, and by the Defendant’s own admission, the amount tendered was not the correct amount owed, which further demonstrates that there was no “meeting of the minds” and, hence, no mutual intent to affect a settlement of the claim.
As the Defendant has failed to refute the Plaintiff’s affidavit indicating that there was no agreement between the parties that the check tendered to Plaintiff was in accord and satisfaction of all of the P.I.P. benefits, no genuine issue of material fact exists as to the defense and partial summary judgment in favor of the Plaintiff is proper. United Automobile Insurance Company v. Palm Chiropractic Center Inc. (a/a/o Joyce Thomas), 17 Fla. L. Weekly Supp. 916a (17th Jud. Cir. Ct., acting in its appellate capacity, 2010).
Accordingly, it is here hereby:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s first and sole affirmative defense ‘accord and satisfaction’ is GRANTED.
