20 Fla. L. Weekly Supp. 551a

Online Reference: FLWSUPP 2006SALIInsurance — Personal injury protection — Coverage — Affirmative defenses — Accord and satisfaction — Medical provider’s acceptance of check indicating it was “Full and Final Payment” created accord and satisfaction as matter of law — Rehearing — Fact that court opinion addresses only some points on appeal does not mean that court has failed to consider points not addressed

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). March 8, 2013. Counsel: Thomas Hunker, Office of General Counsel, United Automobile Insurance Co., Miami Gardens, for Appellant. Cris E. Boyar, Margate; and Dean A. Mitchell, Ocala, for Appellee.ORDER DENYING APPELLEE’SMOTION FOR REHEARING[Original Opinion at 20 Fla. L. Weekly Supp. 337a]

(O’CONNOR, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, upon Stand Up MRI of Miami, Inc., a/a/o Ana Salinas’ (“Stand Up”) motion for rehearing following this Court’s Opinion reversing final judgment in favor of Stand Up on the issue of accord and satisfaction. The court having considered the motion, 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 Automobile Insurance Company (“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 accepted payment and issued a demand letter for the outstanding balance.

Stand Up then 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, 2010¹, 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. On January 18, 2013, this Court issued its Opinion reversing the trial court’s entry of summary judgment in favor of Stand Up and directing the trial court to enter summary judgment in favor of United Auto on the issue of accord and satisfaction.

With the exception of a well-defined class of jurisdictional orders by the supreme court, all final appellate decisions are subject to rehearing and clarification. See Fla. R. App. P. 9.330(d). As such, this Court has jurisdiction to review Stand Up’s motion for rehearing. Motions for rehearing are usually filed in the hope of changing an unfavorable decision, but the official purpose of such motions is to bring to the attention of the appellate court a matter that was overlooked or misapprehended. See Fla. R. App. P. 9.330(a); Ayer v. Bush, 775 So. 2d 368 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2668b]. The rehearing and clarification procedure was not designed to create a right on the part of any litigant to require the appellate court to reconsider a decision.

In support of its motion for rehearing, Stand Up argues that the court overlooked and misapprehended the facts and the law. Specifically, it argues that because the court made no mention of the affidavit of Kimberlee Mohr, it overlooked portions of the record. Additionally, Stand Up argues that the court overlooked the language in assignment of benefits and the conspicuousness of the language on the check. While the court made no mention of these facts in its Opinion, it did overlook any relevant facts or law. Instead, the court found it was not necessary to address these arguments.

The parties to an appeal or petition before an appellate court are not entitled to an opinion as a matter of right. R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 (Fla. 2004) [29 Fla. L. Weekly S462a]. There is no statute or rule requiring an appellate court to write an opinion in support of its decision. Nor do the litigants have any constitutional right to an appellate opinion. If the court has written an opinion only as to some of the points raised in the appeal, that does not mean that the court failed to consider the points not addressed in the opinion. A written opinion on some of the issues merely indicates that the court did not consider it necessary to address the other issues. Bowles v. D. Mitchell Invs., Inc., 365 So. 2d 1028 (Fla. 3d DCA 1978).

The court in its Opinion cited well established Florida law stating 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) (holding that the receiver of the check may not avoid the effect of cashing the check by purporting to receive the funds only “under protest.”) (emphasis added). The fact that Stand Up accepted the check for $2,282.58 indicating it was for “Full and Final Payment” created an accord and satisfaction as a matter of law. Accordingly, it is hereby

ORDERED that Stand Up’s motion for rehearing is DENIED.

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¹The 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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