19 Fla. L. Weekly Supp. 214a
Online Reference: FLWSUPP 1903PETIInsurance — Personal injury protection — Accord and satisfaction — Conspicuous statement — Language stating that check was tendered as full and final payment of PIP benefits did not qualify as conspicuous statement required to discharge claim by accord and satisfaction where language consists of writing on body of check in smaller font than other writing on check, is included as part of two other lines in similar font, is not in contrasting color and is not set off by symbols or marks that call attention to language
MICHAEL J. DELESPARRA, D.C., P.A., a Florida Corporation (assignee of Petit-Jean, Michelle), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11 01002 COCE 53. December 8, 2011. Robert W. Lee, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, for Plaintiff. Russell Kolodziej, Miami Gardens, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORPARTIAL SUMMARY JUDGMENT REGARDINGACCORD AND SATISFACTION
THIS CAUSE, having come before this Court for hearing on October 6, 2011 on the Defendant’s Motion for Partial Summary Judgment Regarding Accord And Satisfaction and, having reviewed the file and relevant legal authorities and heard argument of counsel, the Court finds:
Factual Background: This is a PIP suit for medical services rendered from March 10, 2010 through June 4, 2010 for injuries sustained as a result of a motor vehicle accident on February 2, 2010. The insurance company forwarded the Plaintiff a check, which Plaintiff received and cashed. The check stated: “MICHAEL J. DELESPARRA DC PA f/a/o MICHELLE M PETIT-JEAN for dos 2/20/10 as full and final payment of pip benefits.” Defendant maintains that this payment constitutes an accord and satisfaction of the Plaintiff’s claim for services March 10, 2010 through March 26, 2010. Plaintiff maintains that 1) there was no mutual intent to affect a settlement where the check failed to indicate that it was an offer of settlement for services March 10, 2010 through March 26, 2010 (it indicated payment for DOS 2/20/10); 2) Defendant’s alleged offer was not made in good faith as the Defendant indicated that the amount tendered was calculated according to the fee schedule when in fact the amount tendered was less than the fee schedule amounts; 3) there was no consideration given by either party; and 4) neither the check nor the EOB accompanying the check contained a conspicuous statement that acceptance of the check was on condition that it be a settlement for services March 10, 2010 through March 26, 2010.
Legal Conclusion: The Court follows its previous ruling in Complete Rehab and Medical Centers of Plantation, Inc. v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 1171a (Broward County Court, Judge Robert W. Lee, 2009) and holds that a claim is discharged by accord and satisfaction only if the Defendant “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.” See F.S. s. 673.3111(2) “Uniform Commercial Code: Accord and Satisfaction by Use of an Instrument.” “Conspicuous” is defined in Florida Statute §671.201(10) as “(a) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and language in the body of a record or display in larger type than the surrounding text or set off from surrounding text of the same size by symbols or other marks that call attention to the language.”
The language at issue in the instant case is located in the body of the check and is in a font smaller than other writing on the check, is included as part of two other lines of similar font, is not in a contrasting color, and is not set off by any “symbols or marks that call attention to the language.” See id. §671.201(10)(a) & (b). The question of conspicuousness is a matter of law to be decided by the court. Id. §672.201(10).
The Court concludes that the language, taken not in an isolated sense but in relation to the whole of the instrument, is not conspicuous. See Rudy’s Glass Construction Co. v. E.F. Johnson Co., 404 So.2d 1087, 1089-90 (Fla. 3rd DCA 1981).
Additionally, the Court disagrees with the Defendant’s contention that United Automobile Insurance Company v. Palm Chiropractic Center, Inc., a/a/o Joyce Thomas, 35 Fla. L. Weekly D2686a (Fla. 4th DCA 2010) eliminates the “conspicuous” requirement of the UCC. The Palm Chiropractic case was denial of second tier certiorari review and not a decision on the merits of this question and did not address the question of whether the “conspicuous statement” requirement of F.S. s. 671.201(10) still applies. This court does not read the language of Judge Gross’s opinion as eliminating the UCC requirement that a purported tender of accord and satisfaction by negotiable instrument meet the “conspicuous statement” requirements of F.S. s. 671.201(10) as such a reading would render the UCC provision meaningless. Nor does this court see the Palm Chiropractic decision as creating an alternate way of affecting an accord and satisfaction by use of a check or other instrument.
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is DENIED.
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