19 Fla. L. Weekly Supp. 879b
Online Reference: FLWSUPP 1910PUELInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — No accord and satisfaction occurred when medical provider cashed check for reduced amount with notation that it was for full and final payment of PIP benefits where insurer knew prior to sending check that medical provider had assignment of benefits expressly requiring that any agreement to accept reduced amount be in writing and stating that any reduced payment, irrespective of accompanying language, would be cashed under protest and would not be accord and satisfaction
HEALTH DIAGNOSTICS OF MIAMI, LLC d/b/a STAND-UP MRI OF MIAMI, a/a/o CASTA PUELLO, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-008289 CONO (73). July 2, 2012. Honorable Steven P. Deluca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Orlando Ortiz, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORENTRY OF FINAL JUDGMENT
THIS CAUSE having come before the Court on September 15, 2011, for hearing on Plaintiff’s Motion for Entry of Final Judgment, and the Court having reviewed the motion, entire court file, relevant legal authorities, having heard the argument of counsel, and having been sufficiently advised in the Premises, it is hereupon
ORDERED AND ADJUDGED that said Motion be, and the same is hereby GRANTED.
1. The Florida Small Claims Rules apply to this case since the Rules of Civil Procedure were never invoked pursuant to Fla. Sm. Cl. R. 7.020(c).
2. Fla. Sm. Cl. R. 7.135 states that “At pretrial conference or at any subsequent hearing, if there is no triable issue, the court shall summarily enter an appropriate order or judgment.”
3. This case arises out of a claim for unpaid personal injury protection benefits in the amount of $295.58, plus prejudgment interest, as well as attorney fees and costs pursuant to Florida Statute § 627.428.
4. This case involves one date of service and one CPT Code, which was billed at $1.600.00. The amount demanded in Plaintiff’s demand letter was $1.280.00, representing 80% of the billed amount.
5. Prior to this lawsuit being filed, United Auto Insurance issued a check to Plaintiff in the amount of $984.42. The check was issued to “STAND UP MRI OF MIAMI DADE AAO CASTA PUELLO FOR FULL AND FINAL PAYMENT OF PIP BENEFITS FOR DOL: 4/23/09.”
6. On or about February 17, 2011, this Court denied Defendant’s Motion for Summary Disposition Re: Accord & Satisfaction [18 Fla. L. Weekly Supp. 483a] and the Applicability of the Medicare Part B Fee Schedule. On this same date, the Court granted Plaintiff’s Motion for Summary Disposition Re: the Applicability of the Medicare Part B Fee Schedule.
7. In this case, the Defendant has admitted that the services that were provided by Plaintiff were medically necessary, related to the accident, and that the charges were reasonable.
8. Plaintiff filed its Motion for Entry of Final Judgment claiming that since there are no other issues outstanding in this matter then final judgment should be entered in favor of the Plaintiff.1
9. Defendant subsequently filed its Objection to Plaintiff’s Motion for Entry of Final Judgment claiming that since an issue of fact regarding accord and satisfaction remains, it is improper for the Court to enter a final judgment.
10. Based on Pino v. Lopez,2 United v. Palm Chiropractic Ctr.,3 Republic Funding Corp. v. Juarez,4 and the Florida Small Claims Rules, this Court finds that there are no triable issues to be determined in this case; therefore, final judgment is entered in favor of the Plaintiff.
11. In Pino, the issue was whether a cashed check indicating “Full and final payment for all goods, services and claims to date” amounted to an accord and satisfaction. The Third District Court of Appeals affirmed the lower courts decision to grant summary judgment in favor of the defendant because the affidavit that the Plaintiff submitted in opposition to the motion for summary judgment merely alleged conclusions of law without the necessary supporting facts and was therefore insufficient as a matter of law.5
12. In Republic Funding Corp., the issue was whether a cashed check indicating “paid in full, full payment” along with an accompanying letter indicating that the check “represents payment in full of your commission due” amounted to an accord and satisfaction. The Fifth District Court of Appeals reversed the lower courts holding that this was an accord and satisfaction. The Court applied the well settled principle that an “accord and satisfaction results when there is an existing dispute as to the proper amount due from one party (the debtor) to another party (the creditor) and the parties mutually intend to effect settlement of the existing dispute by a superseding agreement and the debtor tenders, and the creditor accepts, performance of the new agreement in full satisfaction and discharge of the debtor’s prior disputed obligation.”6 The Court reasoned that “In the absence of a dispute and a finding or admission that the parties intended to, and did, reach an accord and agreed to resolve that dispute by payment of an agreed amount, a partial payment of a legal obligation does not act to satisfy and discharge that obligation.”7
13. In Palm Chiropractic, the insurance company submitted payment for medical services rendered from May 04, 2007 to July 06, 2007. The check that was cashed by the Plaintiff indicated “Pay to the order of PALM CHIROPRACTIC CTR FOR FULL & FINAL PAYMENT OF PIP BENEFITS F/A/O JOYCE THOMAS.” Also accompanying this check was an explanation of benefits letter. After payment had cleared, the patient received additional treatment from July 13, 2007 to August 06, 2007. The insurance company refused to pay for these additional dates of service, which resulted in a PIP lawsuit being filed for those unpaid bills. The trial court denied the insurance company’s motion for summary judgment on the issue of accord and satisfaction. The 17th Judicial Circuit Court, acting in its appellate capacity, affirmed the trial court’s denial of the insurance company’s motion for summary judgment and reasoned that for the insurance company to prevail on this issue, it would have to show that the medical provider agreed that the check that was issued was in full payment of the claim. The Court also affirmed the trial court’s granting of the medical provider’s motion for summary judgment regarding the accord and satisfaction issue, reasoning that the insurance company offered nothing to dispute the medical provider’s affidavit, which stated that there was no agreement between the parties that the check would be accepted as full payment.
14. It is important to note that despite the dicta contained within its decision, the Fourth District Court of Appeals denied the insurance company’s writ of certiorari in the Palm Chiropractic case,8 which makes the Circuit Court’s decision, acting in its appellate capacity, controlling on this issue and binding on this Court.
15. It is well settled that language within a court’s opinion that does not directly control the outcome is not a holding, but instead is mere dicta, which is without the force of precedent.9
16. However, assuming arguendo that this language was not dicta, this Court’s holding would stay the same in this case since the facts in Palm Chiropractic are distinguishable from the facts in the case at bar.
a. Unlike the facts in Palm Chiropractic, there was nothing in any correspondence between the Defendant and the Plaintiff in the case at bar indicating that the check was issued in full and final payment of the bill.10
b. In addition, Plaintiff in this case had an AOB specifically addressing how partial payments would be treated.
c. Enclosed with Plaintiff’s initial billing package was an “Assignment of Insurance Benefits, Release, & Demand,” signed by the insured and accepted by the insurer. This Assignment states in pertinent part:
“The insurer is directed by the provider and the undersigned to not issue any checks or drafts in partial settlement of a claim that contain or are accompanied by language releasing the insurer or the insured patient from liability unless there has been a prior written settlement agreed by the health provider and the insurer as to the amount payable under the insurance policy. The provider hereby contests and objects to any reductions or partial payments. Any partial or reduced payment, regardless of the accompanying language, issued by the insurance and deposited by the provider shall be done so under protest, at the risk of the insurer and the deposit shall not be deemed waiver, accord, satisfaction, discharge, settlement agreement by the provider to a as payment in full. The insurer is hereby placed on notice that this provider serves the right to seek the full amount of the bills submitted”.
d. Furthermore, Defendant was aware that Plaintiff would not accept partial payment as payment in full absent an agreement in writing and Defendant was aware of this before it issued the check to Plaintiff for partial payment.
17. Nevertheless, similar to the Republic Funding Corp. and Palm Chiropractic cases, there is no evidence that the parties mutually intended to effect settlement by the tendering and accepting of the check in this case. To the contrary, as set forth above, the AOB in this case clearly indicated that any agreement to accept a reduced amount would have to be in writing and that any reduced payment, regardless of the accompanying language, would be cashed under protest and would not be an accord and satisfaction.
18. According to Defendant’s litigation adjuster, this AOB was received and reviewed by the Defendant before the Defendant issued the check in this case.11 Not only was the Defendant fully aware of Plaintiff’s position as it pertains to any attempt to make a partial payment as “full and final payment of PIP Benefits” as indicated on Defendant’s check to Plaintiff, but Defendant also acknowledged that it was aware before it sent the check in question that Plaintiff would not accept that check as full satisfaction of the claim based on the language expressly contained in Plaintiff’s Assignment of Benefits.12
19. Furthermore, United’s litigation adjuster admitted that he never spoke to the Plaintiff about this claim and that there was no previous settlement agreement:
Page 12, Lines 12-23:
Q Okay. Now, in this particular case, when the check was issued in the amount of $984.42, did you have any conversations with my client or anyone on my client’s behalf, indicating that you would be paying an amount less than what they claimed?
A. No, Sir
Q. Okay. Have you ever spoken with my client in regards to this claim?
A. No, Sir
Q. Okay. Has anyone at United Auto ever spoken to my client with regard to this claim?
A. Not that I am aware of, sir.
20. United’s litigation adjuster further testified in his deposition as follows:
Page 15, Lines 21-25 and Page 16, Lines 1-9:
Q. Is there anywhere in this document, that it says it’s an offer to my client?
A. No, sir.
Q. Okay. But my question is a little more specific. My question is, your note says “per previous settlement agreement.” There was no previous settlement agreement, correct?
A. I agree there wasn’t.
Q. Okay. Because you never spoke to my client?
A. That is correct.
21. United’s litigation adjuster further testified in his deposition as follows:
Page 23, Lines 19-23:
Q. Do you agree that if a provider calls you after the fact and says, “We’re going to cash the check, but we don’t accept it as full and final payment,” that there’s no accord and satisfaction?
A. Yes, sir.
22. Similarly, United’s litigation adjuster also testified in his deposition as follows:
Page 26, Lines 18-22:
Q. You did also say that if the provider cashed the check but then told you after cashing the check that they didn’t agree that it was payment in full, that would not be in accord and satisfaction?
A. That is correct.
23. It should be noted that United received the demand letter from Plaintiff’s attorney on February 01, 2010 — only one month after the checks were issued.
24. As further evidence that there was no mutual meeting of the minds, Plaintiff’s billing representative testified in a sworn Affidavit that no agreement was reached between the Plaintiff and Defendant to accept a lesser amount than what was billed.
25. Therefore, no accord and satisfaction occurred in this case and since there are no triable issues left to be determined, Final Judgment is hereby entered in favor of the Plaintiff.
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1Though they were not required to do so pursuant to the Small Claims Rules, it should be noted that the Defendant did not file an answer or raise this issue as an affirmative defense.
2361 So. 2d 192 (Fla. 3d DCA 1978).
317 Fla. Law Weekly Supp. 916a (Fla. 17th Cir. Ct. (Appellate) 2010), cert. denied, 51 So. 3d 506 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a].
4563 So. 2d 145 (Fla. 5th DCA 1990).
5361 So. 2d at 193.
6563 So. 2d at 146.
7563 So. 2d at 146.
8United v. Palm Chiropractic Ctr., 51 So. 3d 506 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a].
9See, e.g., State v. Yule, 905 So. 2d 251 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1606c]; Sturdivant v. Rowe, 2010 WL 3464410 (Fla. 1st DCA 2010); Bellsouth Telecomms., Inc. v. Church & Tower of Fla. Inc., 930 So. 2d 668 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D800a]; State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation of Dep’t. of Bus. Regulation, 276 So. 2d 823 (Fla. 1973).
10Depo. p. 15, line 1-3.
11Deposition of Anibel Figuereo p. 20, lines 11-20; and p. 21, lines 18-21.
12See Depo. p. 22, lines 13-17.
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