22 Fla. L. Weekly Supp. 397a
Online Reference: FLWSUPP 2203WESTInsurance — Personal injury protection — Accord and satisfaction — Insurer not entitled to summary judgment on affirmative defense of accord and satisfaction — Provider’s negotiation of checks which were marked for full and final payment of PIP benefits and for full and final payment of PIP interest did not, as matter of law, result in accord and satisfaction — Record did not reveal the existence of a preexisting dispute between the parties, and there was nothing in the language of the checks, the explanation of benefits sent to provider, or the explanation of review which reasonably implied that provider, by accepting checks, would be deemed to have agreed with insurer’s position — Conflicting affidavits submitted by parties create genuine issue of material fact as to parties’ intent — Statutory accord and satisfaction — Language “FOR FULL AND FINAL PAYMENT,” placed within body of “Pay to the Order” line of checks, did not meet statutory definition of conspicuous
DR. ALAN R. FREEDMAN, a/a/o JANETTE WESTLEY, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-3383 COCE (55). August 6, 2014. Sharon L. Zeller, Judge. Counsel: Michael James Fischetti, Law Office of Shuster and Saben, LLC, Fort Lauderdale, for Plaintiff. Justin Cincola, Office of the General Counsel, United Automobile Insurance Company Trial Division, Miami, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT RE: ACCORD AND SATISFACTION AND REQUEST FOR §57.105 SANCTIONS
THIS CAUSE came before the court upon defendant’s motion for final summary judgment re: accord and satisfaction and request for section 57.105, Florida Statutes, sanctions. The court having considered the motion and summary judgment evidence, having heard argument of counsel, and being otherwise duly advised in the premises, finds and decides as follows:Factual Background
On February 15, 2011, plaintiff, Dr. Alan R. Freedman, DC, PA, as the assignee of Janette Westley (“Plaintiff”), filed a complaint against defendant, United Automobile Insurance Company (“Defendant”) alleging a single cause of action for breach of contract. According to the complaint, Ms. Westley was involved in an automobile accident on February 23, 2010. At the time of the accident, Ms. Westley was insured under a personal injury protection (“PIP”) insurance policy that was issued by the Defendant. As a result of injuries suffered from the accident, Ms. Westley sought medical treatment from Plaintiff and executed an assignment of her PIP benefits in favor of Plaintiff. The complaint further alleges that Plaintiff submitted medical bills to Defendant for Ms. Westley’s treatment from March 5, 2010 through March 25, 2010, which totaled $2020.00. The Plaintiff claims that the Defendant denied full payment for medical necessary treatment, and therefore, breached the subject insurance policy.
The Defendant filed a responsive pleading to the complaint, wherein it asserts, inter alia, the affirmative defenses of common law and statutory accord and satisfaction. Specifically, Defendant asserts that it tendered two checks to Plaintiff for payment in full for all PIP benefits and interest.1
The check sent to Plaintiff representing payment for PIP benefits contained the following notation:
Pay to the Order of ALAN FREEDMAN DC PA AAO JANETTE M. WESTLEY FOR FULL AND FINAL PAYMENT OF PIP BENEFITS FOR DOL 2/23/10
Likewise, the check sent to Plaintiff for PIP interest contained the following notation:
Pay to the Order of ALAN FREEDMAN DC PA AAO JANETTE M. WESTLEY FOR FULL AND FINAL PAYMENT OF PIP INTEREST FOR DOL 2/23/10
Thereafter, Plaintiff cashed both checks.
On September 27, 2011, Defendant filed the instant motion seeking summary judgment on its affirmative defenses of common law and statutory accord and satisfaction. Defendant argues that the Plaintiff’s negotiation of the checks, which were marked “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS” and “FOR FULL AND FINAL PAYMENT OF PIP INTEREST” constituted an accord and satisfaction as a matter of law. The Plaintiff did not file a written response. However, in opposition, Plaintiff filed the affidavit of Mr. Alan Freedman (“Freedman”). A hearing was held before the court on May 29, 2014.Summary Judgment
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. All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Ins. Co. v. Stuckey, 220 So. 2d 421 (Fla. 4th DCA 1969).
It is well settled that summary judgment should be sparingly granted, and if there are issues of fact and the slightest doubt remains, summary judgment cannot be granted. See Campbell v. Anheuser-Busch, Inc., 265 So. 2d 557 (Fla. 1st DCA 1972). The burden to prove the non-existence of genuine triable issues is on the moving party, and the burden does not shift to the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Doubts and inferences as to the existence or nonexistence of material facts must be resolved against the movant. Id
If the moving party meets this initial burden, summary judgment is appropriate as a matter of law against the nonmoving party if they fail to make a showing sufficient to establish the existence of an essential element of that party’s case. DeMesne v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986). The evidence presented by the nonmoving party is to be believed and all reasonable inferences are to be drawn in his favor. Holl, 191 So. 2d at 43.Common Law Accord and Satisfaction
Under Florida law,
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.
Chassan Prof’l Wallcovering, Inc. v. Victor Frankel, Inc., 608 So. 2d 91, 93 (Fla. 4th DCA 1992) (citing Republic Funding Corp. v. Juarez, 563 So. 2d 145 (Fla. 5th DCA 1990)). Accordingly, “[a]n accord and satisfaction results as a matter of law only when the creditor accepts payment tendered on the expressed condition that its receipt is deemed to be a complete satisfaction of a disputed issue.” St. Mary’s Hosp., Inc. v. Schocoff, 725 So. 2d 454, 465 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a].
Defendant argues that the facts of the instant case reveal the existence of an accord and satisfaction as a matter of law. After a careful review, the court disagrees. First, the summary judgment evidence does not reveal that the parties had a preexisting dispute. Rather, the summary judgment evidence reveals that Plaintiff submitted medical bills to the Defendant and the Defendant responded by mailing: (1) an Explanation of Review (“EOR”), wherein the Defendant explained that it reduced the medical bills in accordance with the applicable fee schedule; (2) an Explanation of Benefits; and (3) two separate checks for payment of PIP benefits and interest. Although the checks in the instant case contained the notation FOR FULL AND FINAL PAYMENT, in light of the accompanying documents sent to Plaintiff by Defendant, the court finds that genuine issues of material fact exist that precludes the entry of summary judgment on Defendant’s affirmative defense of common law accord and satisfaction. For instance, the EOR does not contain an express statement that Plaintiff’s acceptance of the draft is a complete satisfaction of a disputed issue. Rather, the EOR contains the following notation:
Unless otherwise noted, all reductions are due to guidelines indicated in Senate Bill SB 1092. . . . Kindly notify us in writing within 5 days of any dispute or we will assume that our response is satisfactory.
Likewise, the EOB, which was also mailed by Defendant to Plaintiff, does not expressly state that acceptance of the checks constitute a complete satisfaction of a disputed issue. Rather, the EOB specifically states that the payment is being made as “as a business decision,” and that “[a]ny disputes with [Defendant’s] assessment should be directed to the undersigned.” Additionally, the EOB specifically lists the $246.03 for PIP benefits and $3.38 for PIP interest are the “Amount[s] Paid at this Time.” After a careful review of the summary judgment evidence, the court finds that there is nothing in the language of the checks, EOB, or EOR “which reasonably implies, much less expresses, that [Plaintiff], by its acceptance of the check[s], would be deemed to have agreed with the [Defendant’s] position.” St. Mary’s Hosp., Inc., 725 So. 2d at 456 (emphasis in original) (footnote omitted).
The Defendant also argues that the negotiation of the check by Plaintiff evidences the parties’ mutual intent to satisfy a preexisting dispute. The court disagrees. Under Florida law, “[i]ntention is, as a rule, a question of fact.” Id. at 455. In support of its motion for summary judgment, Defendant submitted the affidavit of its litigation adjuster, Anibal Figuereo (“Figuereo”). Ms. Figuereo avers that Defendant mailed a check in the amount of $246.03 in accord and satisfaction of the medical bills submitted by Plaintiff. However, in opposition, Plaintiff submitted the affidavit of Mr. Freedman. In his affidavit, Mr. Freedman avers that Plaintiff never intended its acceptance and negotiation of the checks to be an accord and satisfaction for the medical bills. The conflicting affidavits submitted by the parties creates a genuine issue of material fact as to the parties’ intent that precludes the entry of summary judgment. Since genuine issue of material fact exist as to Defendant’s affirmative defense of common law accord and satisfaction, Defendant’s motion for summary judgment as to its affirmative defense of common law accord and satisfaction is denied.Statutory Accord and Satisfaction
The Defendant also seeks summary judgment as to its statutory accord and satisfaction affirmative defense. The affirmative defense of accord and satisfaction is codified in section 673.3111, Florida Statutes, which provides, in pertinent part:
(1) If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliquidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, the following subsections apply.
(2) Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.
A term is “conspicuous” if it is “so written, displayed, or presented that a reasonable person against which it is operate ought to have noticed it.” § 673.3111 (2), Fla. Stat.
Conspicuous terms include the following: (a) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (b) Language in the body of a record or display in larger type than the surrounding text or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
§ 671.201 (10) (a-b), Fla. Stat. The determination of whether a term is conspicuous “is a decision for the court.” Id. § 671.201 (10).
After a careful review of the checks mailed to Plaintiff by the Defendant, the court finds that the FOR FULL AND FINAL PAYMENT language fails to meet the statutory definition of conspicuous. Although the language is in capitals and is equal to the surrounding text, the language is not contained in a heading, but rather is within the body of the “Pay to the Order” line of the checks. Since the language is not a heading and is not otherwise contained within the body of a record in larger type than the surrounding text or set off in a manner that calls attention to the language, the court finds that the Defendant is not entitled to summary judgment on its affirmative defense of statutory accord and satisfaction. Therefore, Defendant’s motion for summary judgment as to its affirmative defense of statutory accord and satisfaction is denied.
Accordingly, it is hereby:
ORDERED that Defendant’s Motion for Summary Judgment Re: Accord and Satisfaction is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for §57.105 Sanctions is DENIED.
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1The record reveals that the check for PIP benefits was for $246.03, while the check for PIP interest was for $3.38.
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