18 Fla. L. Weekly Supp. 1184b
Online Reference: FLWSUPP 1811DOUG
Insurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Summary judgment is entered in favor of insurer on affirmative defense of accord and satisfaction where explanation of benefits accompanying checks for benefits and interest indicated that further treatment would not be payable based on independent medical examination, conspicuous statement on face of checks indicated that they were tendered in full and final payment of PIP benefits and interest, and medical provider cashed checks — No merit to argument that language of check referencing full payment for physical therapy was ambiguous where there is no evidence that services provided were anything other than physical therapy or that provider believed at any time that further payment would be tendered for any other treatment upon checks being cashed
DOUGLAS RAPID REHABITATION, INC. a/a/o Ramon Lara, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-1458 COCO 55. August 29, 2011. Sharon Zeller, Judge. Counsel: Andrew J. Weinstein, Coral Springs, for Plaintiff. Orlando Ortiz, Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: ACCORD AND SATISFACTION
THIS CAUSE came before the Court on March 3, 2011 on Defendant, United Automobile Insurance Company’s motion for summary judgment and Plaintiff, Douglas Rapid Rehabilitation, Inc.’s memorandum in opposition to defendant’s motion for summary judgment on the issue of accord and satisfaction.1 Having heard argument of counsel, reviewed the motion and memorandum, the trial court file, and being otherwise advised in the premises, this Court finds as follows:
This is a personal injury insurance (“PIP”) case. Plaintiff is an assignee medical provider who rendered medical services to the injured insured, Ramon Lara, from May 12, 2008 through July 14, 2008, after he was involved in an automobile accident on April 22, 2008.
Background: By correspondence dated August 14, 2008, Defendant provided Plaintiff an “Explanation of Benefits” along with a draft for PIP benefits in the amount of $865.64 and a draft for interest in the amount of $20.46, which were made payable, respectively, as follows: “RAPID REHABILITATION, INC. F/A/O RAMON LARA, DOS 5/12/08-07/14/2008, FOR PHYSICIAL THERAPY, ACCT #7313-0008-1-D, AS FULL AND FINAL PAYMENT OF PIP BENEFITS,” and “PIP INTEREST EXPENSE FOR RAPID REHABILITATION INC., FIND RAMON LARA, DOS 5/12/08-07/14/2008, ACCT #7313-0008-1-D, AS FULL AND FINAL PAYMENT OF INTEREST.” The August 14, 2008 “Explanation of Benefits” correspondence explained, inter alia, that charges were denied on or after May 29, 2008 based upon Joseph Marfisi, D.C.’s independent medical examination of Mr. Lara. The correspondence also stated “If you would like further information or wish to dispute our assessment, please do not hesitate to contact the undersigned.”
On September 24, 2008, Plaintiff cashed the checks. Later, on October 3, 2008, Plaintiff states that they forwarded a demand letter to Defendant in which they claim they disputed Defendant’s assessment. Critical here, notwithstanding Plaintiff’s demand letter, which is not before the Court, there is no dispute that Plaintiff cashed the checks on September 24, 2008, more than a week before sending the demand letter. Nevertheless, Defendant responded to Plaintiff by EOB-Demand Response dated October 24, 2008. Therein, Defendant stated, inter alia, “[i]f, upon your thorough review of all of the preceding information, including any and all attachments, you believe that we have not fully responded to your demand; kindly notify the undersigned, in writing, within 5 days.” Notably, there is no evidence before the Court that Plaintiff responded to the letter.
On these undisputed facts, Defendant contends that they are entitled to the entry of a summary judgment, as a matter of law, maintaining that they paid Plaintiff’s bills and Plaintiff accepted payment of the bills in accord and satisfaction of their claim. More specifically. Defendant urges that they met their prima facie case and that the undisputed facts show that during a bone fide dispute with Plaintiff, they tendered, in good faith, the instruments to Plaintiff, which contained “conspicuous” statements to the effect that the instruments were tendered as full satisfaction of the claim, and the instruments were cashed by Plaintiff.
Plaintiff counters arguing that the language contained in Defendant’s August 14, 2008 “Explanation of Benefits,” particularly the language on page 2 which states. “If you would like further information or wish to dispute our assessment, please do not hesitate to contact the undersigned,” fails to indicate that the payments were in full payment and satisfaction of the outstanding benefits due.
Plaintiff also contends that the parties did not mutually intend to effect settlement of the existing dispute as the check fails to clearly state that the payment was in full satisfaction of the PIP benefits because the language on the check was ambiguous. In particular, Plaintiff argued that ambiguity arose because “the payment clearly was not in full satisfaction of all the services provided by the Plaintiff it was only for ‘physical therapy’.” Relying primarily upon Republic Funding Corp. of Florida v. Juarez. 563 So.2d 145, 146 (Fla. 5th DCA 1990), Plaintiff asserts that Defendant cannot produce any evidence showing that the payment was tendered and accepted with the mutual understanding and intention that the agreed sum would resolve the dispute for PIP benefits. As such, Plaintiff concludes that Defendant is not entitled to summary judgment on accord and satisfaction.
In support of their motion for summary judgment, Defendant offered that affidavit of Lisa Sanchez, a Litigation Adjuster employed by Defendant, which states that United Auto provided Plaintiff with an Explanation of Benefits on August 14, 2008, along with a draft for PIP benefits payable as follows: “RAPID REHABILITATION, INC, F/A/O RAMON LARA, DOS 5/12/08-07/14/2008. FOR PHYSICIAL THERAPY, ACCT #7313-0008-1-0, AS FULL AND FINAL PAYMENT OF PIP BENEFITS.” Also in the affidavit is Ms. Sanchez’ sworn statement that “9. The Plaintiff accepted and negotiated the drafts in accord and satisfaction of its bills.” In turn, Plaintiff offered Ms. Sanchez’ deposition testimony, taken on April 29, 2010, in support of their motion in opposition to Defendant’s motion for summary judgment.
Conclusions of Law: The Court recognizes that a showing of accord and satisfaction is premised upon a showing that the parties mutually intended to affect a settlement of the claim under Republic Funding. Id. at 146-147. Nevertheless, on the facts here, this Court is bound by the Fourth District Court’s opinion in United Auto. Ins. Co. v. Palm Chiropractic Center, Inc., 51 So. 3d 506 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a].
In Palm Chiropractic, the Fourth District Court of Appeal found that where the check and cover letter indicated that no further payments would be made, and the check was cashed by the creditor on the express conditions that its receipt is deemed to be a complete satisfaction of a disputed issue, an accord and satisfaction results, as a matter of law. 51 So. 3d at 509 (citing St. Mary’s Hospital. Inc. v. Schocoff, 725 So. 2d 454 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a].
Here, while the check also references “physical therapy,” Plaintiff offers nothing to dispute that the medical services provided for were anything other than physical therapy or that Plaintiff believed, at any time, that further payments would be tendered for any other medical treatment upon the checks being cashed. Similarly, there is no evidence that Plaintiff inadvertently negotiated the check without noticing the “AS FULL AND FINAL PAYMENT OF PIP BENFITS” language, which could prevent an accord and satisfaction if repayment of the amount of the instruments would have been tendered to Defendant within 90 days of the payment. See §673.3111(3)(b), Fla. Stat.
As such, the undisputed facts before this Court are that Defendant’s August 14, 2008 correspondence indicated that “any further chiropractic treatment, examinations and diagnostic studies on or after 05/29/08 would not be reasonable, related or medically necessary and therefore not payable,” there is a conspicuous statement on the face of the checks indicating that they were tendered in full and final payment of PIP benefits and the interest attendant thereto for dates of service from “5/12/2008-07/14/2008,” and Plaintiff cashed the checks. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment Re: Accord and Satisfaction is hereby GRANTED.
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1673.3111 Accord and satisfaction by use of instrument. —
(1) If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliquidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, the following subsections apply.
(2) Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.
(3) Subject to subsection (4), a claim is not discharged under subsection (2) if either paragraph (a) or paragraph (b) applies:
(a) The claimant, if an organization, proves that:
1. Within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place; and
2. The instrument or accompanying communication was not received by that designated person, office, or place.
(b) The claimant, whether or not an organization, proves that, within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with subparagraph (a)l.
(4) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent a the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.
