20 Fla. L. Weekly Supp. 337a
Online Reference: FLWSUPP 2004SALINOT FINAL VERSION OF OPINION
Subsequent Changes at 20 Fla. L. Weekly Supp. 551aInsurance — Personal injury protection — Coverage — Medical expenses — Accord and satisfaction — Explanation of benefits and check to provider, which indicated it was for full and final payment, were sufficient to prove insurer’s intent to effect settlement — By cashing tendered check, rather than responding in writing within five-day period provided for in EOB, provider intended to effect settlement — Provider failed to provide any evidence refuting fact that mutual agreement to effect settlement arose between parties
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. STAND UP MRI OF MIAMI, INC., a/a/o ANA SALINAS, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-33958 CACE (04). L.T. Case No. 08-2352 COCE (52). January 17, 2013. Counsel: Thomas Hunker, Office of the General Counsel, Miami Gardens, for Appellant. Cris Boyar and Dean Mitchell, for Appellee.
OPINION
(O’CONNOR, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, upon an appeal by United Automobile Insurance Company (“United Auto”) following the trial court’s entry of the agreed final judgment in favor of Stand Up MRI of Miami, Inc., a/a/o Ana Salinas (“Stand Up”)1. The court having considered the filings, being duly advised in the premises and law, dispenses with oral argument and finds and decides as follows:
On March 2, 2007, Ana Salinas was allegedly involved in an automobile accident for which she sought medical care with Stand Up under her automobile insurance policy. On December 10, 2007, after Stand Up sent its demand letter for payment, United Auto sent three checks attached to their Explanation of Benefits, which stated that “the charges billed exceed the amount allowable pursuant to the Medicare Part B Fee Schedule. If, upon your thorough review of all 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.” (R. 117). The first check was made payable to “Stand Up MRI f/a/o Ana Ruth Salinas for full & final payment.” See United Auto’s initial Br., at 1; (R. 96). Stand Up filed suit against United Auto and United Auto filed its affirmative defense of accord and satisfaction. (A. 1). On December 8, 2009, United Auto moved for final summary judgment regarding its affirmative defense of accord and satisfaction. (R. 57-120). On May 5, 20102, the trial court denied United Auto’s motion for summary judgment. (A. 4). On August 5, 2010, the court entered an agreed final judgment in favor of the Stand Up. On August 18, 2010, United Auto filed its notice of appeal of the final order, contesting the interlocutory denial of its motion for summary judgment on the issue of accord and satisfaction.
The standard of review of summary judgment orders is de novo. See Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D2185a]. De novo review simply means that the appellate court is free to decide a question of law, without deference to the trial judge, as if the appellate court had been deciding the question in the first instance. See Walter v. Walter, 464 So. 2d 538 (Fla. 1985).
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 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 material fact. All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mut. Ins. Co. v. Stuckey, 220 So. 2d 421 (Fla. 4th DCA 1969).
The affirmative defense of accord and satisfaction requires proof of: “(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.” St. Mary’s Hosp., Inc. v. Schocoff, 725 So. 2d 454, 455 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a].
In support of its appeal of the trial court’s denial of United Auto’s motion for summary judgment, United Auto argues that “cashing a check containing language that it is in full payment of the debtor’s obligations creates an accord and satisfaction with regard to the claim for which payment was tendered.” See United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So. 3d 506, 509 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a]. Stand Up argues that whether there is an accord and satisfaction involves a pure question of mutual intent, which is a question of fact. Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D2033a].
It is well established Florida law that an accord and satisfaction results as a matter of law when an offerree accepts a payment that is tendered only on the express condition that its receipt is to be deemed a complete satisfaction of a disputed claim. Hannah v. James A. Ryder Corp., 380 So. 2d 507, 509-10 (Fla. 3d DCA 1980). Cashing a check containing language that it is in full payment of the debtor’s obligations creates an accord and satisfaction with regard to the claim for which payment was tendered. See Palm Chiropractic, 51 So. 3d at 509.
This Court finds the instant case distinguishable from St. Mary’s Hosp., cited by Stand Up, because that case did not involve a check with limited language which made “explicit, without question, the insurer’s position that there are no further benefits due under the policy and it does not intend to make any further payments. On the issue of intent to effect settlement, United Auto produced, along with its check indicating that it was being tendered “for full and final payment,” an explanation of benefits which requested Stand Up to respond in writing within 5 days if they felt United Auto did not adequately respond to their demand letter. This Court finds that the explanation of benefits coupled with the plain language of the check, when viewed together, satisfy a showing sufficient to prove United Auto’s intent to effect settlement. Specifically, the check and the explanation of benefits made “explicit, without question, the insurer’s position that there are no further benefits due under the policy and that it does not intend to pay any further payments. See St. Mary’s Hosp., 725 So. 2d at 456. Stand Up failed to respond in writing within 5 days. Instead, Stand Up deposited the check and sued for the remaining balance. By cashing the tendered check for full and final payment, Stand Up intended to effect settlement and therefore a mutual agreement between the parties arose. As such, United Auto has met its burden of proving the non-existence of any genuine issue of material fact. The burden then shifted to Stand Up to refute United Auto’s case.
Stand Up failed to provide any evidence refuting the fact that a mutual agreement to effect settlement arose between the parties. This Court finds no genuine issues of material fact regarding United Auto’s entitlement to summary judgment as a matter of law on its defense of accord and satisfaction. Accordingly, it is hereby
ORDERED that final judgment in favor of Stand Up is REVERSED. It is further ORDERED that summary judgment in favor of Stand Up is REVERSED. The trial court is directed to enter summary judgment in favor of United Auto on the issue of accord and satisfaction. This case is REMANDED to the trial court with directions consistent with this Opinion.
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1United Auto preserved its right to appeal the trial court’s denial of its motion for summary judgment.
2The court notes that the order denying United Auto’s motion for summary judgment states that it was entered on May 5, 2007. However, this Court believes it to be mere scrivener’s error. The trial court case was not filed until 2008 and defendant filed his motion in late 2009. Nevertheless, the transcript of the hearing clearly indicates that the proceeding took place on May 5, 2010.
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