20 Fla. L. Weekly Supp. 447a
Online Reference: FLWSUPP 2004PINEInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Where no dispute existed between insurer and medical provider regarding amount of benefits payable prior to insurer’s payment of reduced amount pursuant to statutory fee schedule, payment did not result in accord and satisfaction
BEST AMERICAN DIAGNOSTIC CENTER, INC., (a/a/o Lenia Pineiro) Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-14527 COCE (53). January 4, 2013. Robert W. Lee, Judge. Counsel: Caroline Perlegas, Fort Lauderdale, for Plaintiff. Russell Kolodziej, Miami Gardens, for Defendant.
AFFIRMED. 22 Fla. L. Weekly Supp. 210c
FINAL JUDGMENT IN FAVOR OFPLAINTIFF
THIS CAUSE was tried before the Court in a bench trial on November 15, 2012, and the Court’s having heard and considered the testimony and evidence, reviewed the court file, relevant legal authorities, and being otherwise fully advised in the premises, the Court finds as follows:Procedural Background
Plaintiff filed suit alleging Defendant’s failure to pay PIP benefits pursuant to its policy of insurance as Defendant limited reimbursement by applying Fla. Stat. §627.736(5)(a)(2). Defendant raised two affirmative defenses: (1) statutory and common law accord and satisfaction; and (2) payment in accordance with the fee schedule.
On February 4, 2011, this Honorable Court heard: Defendant’s Motion for Summary Judgment Re: Accord and Satisfaction; Request for §57.105 Sanctions, Defendant’s Motion for Final Summary Judgment Re: Bill Paid Pursuant to F.S. §627.736(5); Applicability of the Medicare Part B Fee Schedule to Plaintiff’s Bill, and Plaintiff’s Motion for Final Summary Judgment Regarding Affirmative Defense of Accord and Satisfaction and Motion for Sanctions Pursuant to Fla. Stat. §57.105.
The Court entered its March 11, 2011 Order granting Plaintiff partial summary judgment on Defendant’s affirmative defense of accord and satisfaction to the extent Defendant failed to conspicuously place language on the check in accordance with Fla. Stat. §671.201(10). See United Automobile Ins. Co. v. Jeffrey L. Stanger, P.A., 19 Fla L. Weekly Supp. 927a (17th Cir. Ct. 2012). The Court denied Defendant’s Motion for Summary Judgment re: Fee Schedule. The Court granted, in part, Defendant’s Motion for Summary Judgment re: accord and satisfaction, finding the only remaining issue in this cause is whether there was a dispute sufficient to support Defendant’s “accord and satisfaction” defense. Thereafter, on April 12, 2011, this Honorable Court granted Plaintiff’s Motion for Summary Judgment Re: Medicare Fee Schedule.
On August 25, 2011, the Court denied Defendant’s Renewed Motion for Summary Judgment on Accord and Satisfaction, finding there remains an issue as to whether there was a “disputed issue” for purposes of common law accord and satisfaction. Thereafter, on June 26, 2012, the Court denied Plaintiff’s Motion for Final Summary Judgment, finding there remained a question of fact as to whether there was a preexisting dispute between the parties to effect an accord and satisfaction. This case then proceeded to the November 15, 2012 non-jury trial.Findingsof Fact
On December 15, 2009, Plaintiff, BEST AMERICAN DIAGNOSTIC CENTER, INC., provided a shoulder MRI to Lenia Pineiro for injuries related to her November 30, 2009 motor vehicle accident. Plaintiff billed Defendant $1,750.00 for the MRI provided to its insured, Lenia Pineiro. In response, Defendant issued payment in the amount of $959.63 (representing 80% of the “approved amount”), reimbursing Plaintiff according to Fla. Stat. §627.736(5)(a)(2) at 200% of Medicare Part B. A check was issued and cashed which contained the terms “BEST AMERICAN REHAB CENTER, INC. A/A/O LENIA PINEIRO FOR FULL & FINAL PAYMENT OF PIP BENEFITS FOR DOS: 12/15/09 ACCT# PILE 3035.” Accompanying the check was an “Explanation of Review” indicating “all reductions are due to guidelines indicated in Senate Bill SB 1092.”
Prior to Defendant’s issuance of the check, there was no communication between the parties with regard to the bill. The credible evidence considered by the Court demonstrated Defendant intended to satisfy its full obligation under the policy by paying the fee schedule amount. The credible testimony also demonstrated Defendant had no defenses to paying the claim at the full amount Defendant believed was owed, and further that Defendant did not communicate any defenses to paying the claim. The Court concludes that the testimony relating to the Explanation of Review did not indicate the existence of a dispute, nor that the payment was made as an offer to compromise.Legal Analysis
As the sole issue for the Court’s determination was whether there was a preexisting dispute, based on the credible evidence presented, the Court finds there was no dispute.
An accord and satisfaction results only when the creditor accepts payment tendered on the express condition that its receipt is deemed to be a complete satisfaction of a disputed issue. St. Mary’s Hospital, Inc. v. Schocoff, 725 So.2d 454 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a]. The affirmative defense of accord and satisfaction requires proof of a preexisting dispute as to the nature and extent of obligation between parties, their mutual intent to effect settlement of that dispute by superseding agreement, and the obligor’s subsequent tender and obligee’s acceptance of performance of new agreement in full satisfaction and discharge of prior disputed obligation. See Chassan Professional Wallcovering v. Frankel, 608 So.2d 91 (Fla. 4th DCA 1992). See also 10 Fla. Jur. 2d Compromise, Accord and Release §1 (1979).
There must be unequivocal evidence that a dispute existed prior to the issuance of the payment by the Defendant. San Hueza v. National Foundation Life Ins. Co., 545 So.2d 321 (Fla. 3d DCA 1989)(when insurer issued checks for payment of medical services in an amount for which there was no real dispute so that there was nothing to be compromised, the defense of accord and satisfaction fails). If neither side believes that the other is compromising or accepting less than what was legally enforceable, then there is no dispute.
Here, the Explanation of Review was completely silent as to the nature and extent of any dispute between the parties. There was no negotiation or contact between the parties prior to the issuance of the check. The Explanation of Review merely contained the unilateral and cryptic pronouncement that “all reductions are due to guidelines indicated in Senate Bill SB 1092.” Defendant’s adjuster testified that the amount tendered was the full amount Defendant was obligated to pay based on a statutory fee schedule. Further, language in the Explanation of Review stating “Kindly notify us in writing within 5 days of any dispute or we will assume that our response is satisfactory” demonstrates Defendant had communicated no dispute to create an accord and satisfaction. Plaintiff’s corporate representative testified there was no indication of Defendant’s reimbursement obligation under the policy and nothing differentiating the Explanation of Review received in this case from other Explanations of Review received from Defendant in other claims which would indicate Defendant was disputing the amount paid. Based on the evidence demonstrating the Explanation of Review was silent as to the existence of a dispute, that Defendant did not communicate that the payment was an offer to compromise, and Defendant intended to satisfy its complete obligation by paying the fee schedule amount, the court concludes there was no dispute. Republic Funding Corp. of Florida v. Juarez, 563 So.2d 145 (Fla. 5th DCA 1990) (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). Indeed, the Defendant’s position has been that there was in fact no actual dispute, because it was tendering the full amount if believed the law required it to tender.
Defendant contends its payment of $959.63 as “full and final” in response to the bill for $1,750.00 created a dispute because its payment of a lesser amount than the billed amount is alone sufficient to communicate a dispute. An insurer, however, cannot create a dispute by making a payment in an amount it contends will fully satisfy its obligation. Pino v. Union Bankers Ins. Co., 627 So.2d 535 (Fla. 3d DCA 1993). The Court finds no merit in Defendant’s contention that its payment was “unliquidated,” thus creating a dispute as to the actual amount owed. In this case, Defendant paid the fee schedule amount, which is a liquidated sum because the amount can be determined by an arithmetical calculation or by application of definite rules of law. See DYC Fishing, Ltd. v. Martinez, 994 So.2d 461 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2604a]. Thus, Defendant’s reliance upon Rudick v. Rudick, 403 So.2d 1091 (Fla. 3d DCA 1981) and Berman v. U.S. Financial Acceptance corp., 669 So.2d 1116 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D719b] is misplaced.
Based on the evidence presented and considered, there is no evidence a dispute existed prior to Defendant’s payment. Defendant intended to satisfy its full obligation under the policy by paying the fee schedule amount. Because the Explanation of Review was silent as to the Defendant’s reimbursement obligation and the nature of a dispute, and Plaintiff was not provided any information regarding Defendant’s obligation under the policy, it is this Court’s holding that no dispute existed that would result in an accord and satisfaction.
THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff, BEST AMERICAN DIAGNOSTIC CENTER, is the prevailing party and shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, the sum of $440.37, representing the claimed but unpaid personal injury protection benefits. Plaintiff, BEST AMERICAN DIAGNOSTIC CENTER, shall further recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, the sum of $71.82, representing statutory interest due an overdue payment of personal injury protection benefits for a total of $512.19.
This judgment shall bear interest at the rate of 4.75% per annum from November 15, 2012, through the date of tender for which sum let execution issue. The Court hereby reserves jurisdiction to enter a judgment taxing reasonable attorney fees and costs.
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