19 Fla. L. Weekly Supp. 927a
Online Reference: FLWSUPP 1911VINCInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — No error in denying insurer’s motion for summary judgment on affirmative defense of accord and satisfaction where, although trial court initially erred in determining that conspicuousness of statement on checks was factual issue for jury, on reconsideration trial court correctly identified issue as decision for court and determined that statement was not conspicuous — No error in denying insurer’s subsequent motion for summary judgment on affirmative defense of common law accord and satisfaction where there was disputed issue of fact as to whether medical provider intended acceptance of checks to be in full satisfaction of any future claims — Error to grant provider’s motion for directed verdict where evidence permits differing inferences regarding provider’s intent and, therefore, issue should have been submitted to jury
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. JEFFREY L. STANGER, P.A., INC., a/a/o Ryan Vincent, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-24215 (25). L.T. Case No. 08-12673 (53). March 13, 2012.
OPINION
(PHILLIPS, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon Appellant’s, United Automobile Insurance Company (“United Auto”), appeal of a trial courts’ orders denying its motions for summary judgment and granting Appellee’s, Jeffrey L. Stanger, P.A. (“JLS”) motion for a directed verdict. The Court having considered the briefs filed by the parties and being duly advised in the premises and law, dispenses with oral argument, and finds and decides as follows:Factual Background
On August 14, 2007, Ryan Vincent (“Vincent”) sustained injuries as the result of an automobile accident. Vincent carried personal injury protection (“PIP”) insurance coverage with United Auto. As a result of his injuries, Vincent sought and received medical treatment from JLS from August 16, 2007 through March 21, 2008.
On August 14, 2008, JLS filed a Complaint against United Auto to recover PIP benefits for medical services rendered to Vincent. United Auto filed an Answer and Affirmative Defenses. Specifically, United Auto affirmatively alleged that the disputed medical bills were paid in full satisfaction of any and all claims, that JLS accepted such payments, and that JLS’s acceptance constituted an accord and satisfaction pursuant to section 673.3111.
Thereafter, on December 11, 2008, United Auto filed a Motion for Final Summary Judgment (“December 2008 Motion for Final Summary Judgment”). In support thereof, United Auto filed the affidavit of its litigation adjuster, Kimberly Dennard-Kohn (“Dennard-Kohn”). Dennard-Kohn’s affidavit set forth that United Auto issued two checks to JLS, which checks clearly provided the following pertinent language: “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS.”
In opposition to United Auto’s Motion for Final Summary Judgment JLS filed an affidavit and memorandum of law. In the affidavit, Dr. Jeffrey Stanger (“Dr. Stanger”) attested that he received the two payments from United Auto and that he thereafter cashed the checks and deposited the funds. However, he attested that he did not notice the wording on the check indicating that such payments were “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS.” Moreover, he attested that if he had noticed such wording, he would not have deposited said checks. Furthermore, he attested that it was never his intention to accept the checks as complete payment of Vincent’s outstanding bills.
Following a hearing, the trial court denied United Auto’s December 2008 Motion for Final Summary Judgment concluding that there was a question of fact for the jury, specifically, whether the statement on the check was conspicuous pursuant to section 673.3111, Florida Statutes.
United Auto subsequently filed a Motion for Reconsideration, which was denied by the Court. However, in denying the motion, the trial court determined that the statement on the checks was not, as a matter of law, conspicuous.
Following the denial of its Motion for Reconsideration, United Auto sought and was granted leave to amend its affirmative defenses to include the affirmative defense of common law accord and satisfaction. On March 17, 2010, United Auto moved for summary judgment on this defense (“March 2010 Motion for Summary Judgment”). The trial court denied United Auto’s motion, noting that it was United Auto’s burden to prove the elements of the defense of common law accord and satisfaction.
The case proceeded to trial. At the close of the evidence, both parties moved for a directed verdict. The trial court granted JLS’s Motion for a Directed Verdict, concluding that there was no testimony or evidence to rebut Dr. Stanger’s testimony that he did not intend to accept the checks as full and final payment of the disputed claim. Thereafter, final judgment was entered in favor of JLS, and United Auto timely filed this appeal.
United Auto assigns two claims of error: 1) the trial court erred when it denied its December 2008 and March 2010 motions for summary judgment; and 2) the trial court erred when it granted JLS’s motion for a directed verdict.Review of Summary Judgment
When reviewing a trial court’s entry of summary judgment, an appellate court applies a de novo standard of review. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]. Summary judgment is appropriate “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510 (c). The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. Unless the material facts are so crystallized that nothing remains except questions of law, summary judgment should not be granted. Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Moreover, “the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.” Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966).
December 2008 Motion for Final Summary Judgment
In the current matter, the Court finds that the trial court properly denied United Auto’s December 2008 Motion for Final Summary Judgment. Pursuant to that motion, United Auto sought summary judgment on its statutory defense of accord and satisfaction. The trial court denied the motion, concluding that the issue of whether the statement on the checks was conspicuous was a factual determination for the jury. Although this was error as the definition of conspicuous contained the Florida’s Uniform Commercial Code provides that such determination is one for the court, the Court corrected itself when it denied United Auto’s Motion for Reconsideration and determined that the statement was not conspicuous. See § 671.201 (10), Fla. Stat. (“Whether a term is ‘conspicuous’ is a decision for the court.”). Therefore, any error was harmless.
March 2010 Motion for Summary Judgment
After reviewing United Auto’s March 2010 Motion for Summary Judgment, JLS’s response thereto, and the entire record on appeal, the Court finds that the motion was properly denied by the trial court. United Auto affirmatively alleged that JLS’s acceptance of payments it tendered with the language “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS” was an accord and satisfaction. As the Fourth District Court of Appeal has noted, an affirmative defense of accord and satisfaction requires proof of three elements:
(1) [A] preexisting dispute as to the nature and extent of an obligation between the parties, (2) their mutual intent to effect settlement of that dispute by a superseding agreement, and (3) the obligor’s subsequent tender and the obligee’s acceptance of performance of the new agreement in full satisfaction and discharge of the prior disputed obligation.
Chassan Prof’l Wallcovering, Inc. v. Victor Frankel, Inc., 608 So. 2d 91, 93 (Fla. 4th DCA 1992).
In the current matter, there are questions of fact concerning whether there was preexisting monetary dispute and whether JLS intended for his action of cashing the checks to constitute a settlement of any and all claims for PIP benefits. Although United Auto indicated on the payments that such payments were for full and final payment of PIP benefits, JLS filed the affidavit of Dr. Stanger, who attested that he did not intend his acceptance of those payments to be in full satisfaction of any future claims. Moreover, he attested that he did not notice the language on the checks. “Intention is, as a rule, a question of fact.” See St. Mary’s Hosp., Inc. v. Schocoff, 725 So. 2d 454, 455 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a]. Since there was a genuine issue of material fact concerning United Auto’s affirmative defense of accord and satisfaction, the trial court properly denied United Auto’s March 2010 Motion for Summary Judgment.Review of Directed Verdict
When reviewing a trial court’s grant or denial of a motion for direct verdict, the appellate court applies the same law as that applied by the trial court. See Etheredge v. Walt Disney World Co., 999 So. 2d 669, 671 (Fla. 5 DCA 2008) [33 Fla. L. Weekly D2785a] (“The standard of review on appeal of a trial court’s ruling on a motion for directed verdict is the same as the test used by the trial court in ruling on that motion.”). The Fourth District Court of Appeal stated the requisite standard as follows:
A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law.
Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D907a] (citing Dep’t of Children & Family Servs. v. Amora, 944 So. 2d 431, 435 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2848a]).
An appellate court employs a de novo standard of review when reviewing a trial court’s determination on a motion for a directed verdict.
When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party. Conversely, an appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.
Id.
In the current matter, United Auto seeks review of the trial court’s order granting JLS’s Motion for a Direct Verdict following the close of evidence. After a review of the entire record, the Court finds that the entry of a directed verdict in favor of JLS was error.
At trial, United Auto’s litigation adjuster and corporate representative, Dennard-Cohn, testified that she reviewed the medical bills submitted by JLS for medical services JLS provided to Vincent. Upon reviewing such bills, Dennard-Cohn mailed to JLS two checks, both bearing, on the face of the checks, the following language: “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS”. Moreover, Dennard-Cohn testified that it was her intention, as a corporate representative of United Auto, that such payments were to be for full and final satisfaction of any all claims for PIP benefits pertaining to JLS’s treatment of Vincent.
Also at trial, Dr. Stanger testified that he is responsible for receiving and opening the mail delivered to JLS. He testified that his customary practice when receiving payments is to confirm that the check properly corresponds to the information contained within the explanation of benefits. He further testified that he did not notice the “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS” language contained on the face of the check, and that if he had noticed it, he or JLS’s billing department would have contacted United Auto.
In granting a directed verdict for JLS, the Court noted that there was no evidence presented by United Auto to counter Dr. Stanger’s testimony that he did not notice the “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS” language and that he did not intend his cashing of the checks to be in full and final satisfaction of any and all claims.
It is well settled that “[a]n accord and satisfaction results as a matter of law ‘when the creditor accepts payment tendered on the expressed condition that its receipt is deemed to be a complete satisfaction of a disputed issue.’ ” United Auto. Ins. Co. v. Palm Chiropractic Center, Inc., 51 So. 3d 506, 509 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a] (quoting St. Mary’s Hosp., 725 So. 2d at 465). However, as noted above, “[i]ntention is, as a rule, a question of fact,” and because such issue was contested at trial permitting differing inferences, it should have been submitted to the jury. See Brandt v. Brandt, 189 So. 2d 275, 277 (Fla. 1939) (noting that “if the evidence is conflicting or will permit different reasonable inferences, . . . it should be submitted to the jury as a question of fact to be determined by them, and not taken from the jury and passed upon by the Court as a question of law”). As such, the trial court’s grant of JLS’s Motion for a Directed Verdict was error.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the County Court’s order directing a verdict for JLS is REVERSED AND REMANDED for proceedings consistent with this Opinion.
IT IS FURTHER ORDERED AND ADJUDGED that the County Court’s orders denying United Auto’s motions for summary judgment are AFFIRMED.
IT IS FURTHER ORDERED AND ADJUDGED that Appellee’s Motion for Attorney’s Fees is DENIED
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