21 Fla. L. Weekly Supp. 435a
Online Reference: FLWSUPP 2105TEJAInsurance — Personal injury protection — Affirmative defense of accord and satisfaction fails where there is no evidence that dispute existed between insurer and medical provider prior to issuance of check on which insurer relies for defense, and language on check is not conspicuous — Summary judgment — No merit to argument that unfiled adjuster notes demonstrate existence of factual issue as to whether provider and insurer reached oral agreement to resolve benefits — Adjuster notes withheld by insurer under claim of privilege may not subsequently be used to defeat summary judgment, and assignment clearly requires that any agreement to settle benefits must be in writing
MIAMI DADE COUNTY MRI, CORP., (a/a/o Luis Tejada), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-14167 SP 23 (01). December 19, 2013. Myriam Lehr, Judge. Counsel: Kenneth J. Dorchak, Buchalter Hoffman and Dorchak, North Miami, for Plaintiff. Orlando Ortiz, for Defendant.
AFFIRMED. (PCA) (United Auto Ins. Co. v. Miami Dade County MRI Corp., 11th Jud. Cir.-Appellate Division, Case No. 14-001 AP, April 11, 2018.)
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE came on to be heard before me, the undersigned Judge of the above-titled Court, on December 4, 2013, on the Plaintiff’s Motion for Summary Judgment. Upon hearing argument of counsel present and otherwise being fully advised of the premises thereof, it is hereby:
ORDERED and ADJUDGED that the Plaintiff’s Motion is GRANTED. The Defendant has stipulated that the medical services at issue provided by Plaintiff to Luis Tejada, the insured, on August 5, 2008 were medically necessary and related to the accident and that the charges for such services were reasonable, leaving the only issue being that of the defense of accord and satisfaction. The Court finds that there is no material issue of disputed fact in this matter regarding the accord and satisfaction defense. Based upon the summary judgment evidence before the court the elements of such defense have not been properly pled and furthermore the facts of the case demonstrate that as a matter of law the elements of the defense of accord and satisfaction are not present and cannot support a defense of accord and satisfaction. There is no evidence that a dispute existed between the parties prior to the issuance of the check upon the Defendant relies for its defense. Accord and satisfaction results when there is an existing dispute as to the proper amount due from one party to the other party and the parties mutually intend to effect settlement of the existing dispute by a superceding agreement and the debtor tenders and the creditor accepts performance of the new agreement in full satisfaction and discharge of the debtor’s prior or disputed obligation. Republic Funding Corporation of Florida v. Juarez, 563 So.2d 145 (Fla. 5th DCA 1990). The elements are not present under the facts of this case.
The Court finds that the language on the check upon which the Defendant relies to support its accord and satisfaction defense is not conspicuous as defined by law. See Section on 671.201(10), Fla. Stat.
The Defendant’s counsel has argued that based upon statements contained within unfiled adjuster notes, which have not been filed in the summary judgment record, that an issue of fact exists as to whether the parties reached an oral agreement to resolve the benefits. The Court finds that not only have such unauthenticated notes not been filed in opposition to the motion for summary judgment but they were withheld on a claim of privilege and thus under the sword and shield doctrine may not be used to defeat summary judgment.
Lastly, the assignment of benefits signed by the Defendant’s named insured and sent to the Defendant by the Plaintiff plainly directs that if the Defendant insurer wishes to compromise the benefits due that a written agreement regarding such settlement much be executed by the medical provider and the insurer. This procedure was not followed by the Defendant.
Based upon the foregoing findings of fact IT IS ADJUDGED:
That a final judgment is hereby entered in favor of the Plaintiff, MIAMI DADE COUNTY MRI, CORP., 411 S.W. 27th Avenue, Miami, FL 33135, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $1,411.31, representing payment of PIP benefits, together the amount of $797.91, representing interest at the 2008 statutory rate of 11% for 1876 days (10/15/2008 through 12/06/2013), for a total judgment of $2,209.22, for which let execution issue and which shall bear interest at the statutory rate commencing 12/06/2013 until paid.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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