22 Fla. L. Weekly Supp. 162a
Online Reference: FLWSUPP 2201BAILInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — No accord and satisfaction occurred when medical provider cashed check for reduced amount with notation that it was for full and final payment of PIP benefits where insurer knew prior to sending check that provider had assignment of benefits expressly requiring that any reduced payment, irrespective of accompanying language, would be cashed under protest and would not be accord and satisfaction — Further, there was no accord and satisfaction where there was no dispute between insurer and provider regarding amount of benefits payable prior to insurer’s payment of reduced amount, and “full and final” language on check was neither clear nor conspicuous
HALLANDALE OPEN MRI, LLC, as assignee of Jonathan Bailey, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-22998 COCE 50. August 14, 2014. Peter B. Skolnik, Judge.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
This CAUSE having come before this Court on August 14, 2014, after due notice to the parties, on Plaintiff’s Motion for Final Summary Judgement and in Support thereof and this Court having considered the pleadings, evidence in the record, the affidavit of Plaintiff’s representative, Ms. Shadee, Plaintiff’s the Assignment of benefits, the check at issue, the material that accompanied the Defendant’s check, the deposition transcripts of Ms. Laura Garcia and John O’Hara and the attached exhibits, the respondents response to the 4th DCA’s order to show cause in the case of United Auto v. Health Diagnostics a/a/o Puello and Quesada, 4D13-4574 (Fla. 4th DCA 2013), the rest of the record, and argument of counsel, its hereupon,
ORDERED AND ADJUDGED that Plaintiff’s motion is hereby granted for the following reasons.
The Plaintiff, an MRI provider, submitted a bill for $1650 to the Defendant for payment. The Defendant is the pip insurer for the patient, Jonathan Bailey. In response to receiving the Plaintiff’s bill, the Defendant paid $860.30 and not 80% of the billed amount. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of a patient’s medical bills that are reasonable as to price, medically necessary and related to a car crash.
The Plaintiff filed suit because the Defendant did not pay 80% of the billed amount. In response to the Plaintiff’s complaint, the Defendant filed an answer and affirmative defenses. The Defendant raised two defenses: (1) Statutory accord and satisfaction per the UCC and (2) common law accord and satisfaction. The court previously granted Plaintiff’s motion for Summary Judgment as to price and there is no issue as to medical necessity and related based on agreement of the parties.
The only remaining issues to be decided are the Defendant’s two affirmative defenses which relate to the full and final language that appears pay to the order line of the check the Defendant issued in response to receiving the Plaintiff’s bill for an MRI.
Lack of Existing Dispute at the Time of the Payment
The material facts in the record demonstrate that at the time of United Auto’s payment there was no dispute existing between the parties. United Auto simply chose to offer a reduced amount in response to receiving the Plaintiff’s bill. Therefore, despite the language of United Auto’s check, at the time that check was issued, there was no existing dispute between the parties. At most there was a partial payment on a larger claim.
Clear and Conspicuous
The court finds the full and final Language that appears exclusively on the Defendant’s check is neither clear nor conspicuous. This is consistent with the finding of Judge Pole who heard Defendant’s Motion for Summary Judgment on accord and satisfaction on 10/4/12. The language is not a different color or a larger font size. There is no indication in the record the Plaintiff should have looked at the pay to the order line for this type of language. A pay to the order line on a check reflects the name of the entity authorized to deposit or cash the check. There is simply no statutory authority for the Defendant to place full and final language on the pay to the order line.
The adjuster who issued the check, Ms. Garcia, did not know why this full and final language was placed on the pay to the order line or a check. There is no evidence in the record that the Plaintiff knew, or should have known, to look at the pay to the order line for this type of language. The Defendant’s cover letter and explanation of review that were mailed with the check makes no mention of any full and final language. Nor does it tell the Plaintiff to look at the pay to the order line for this type of language.
UCC
Plaintiff’s Motion is granted as it relates to the first affirmative defense citing to the UCC. Florida Statute §673.3111 is not available to the Defendant because the Defendant did not comply with the request made in the Plaintiff’s assignment of benefits, release and demand. See §627.7111(3)(a). There is no dispute the Defendant received the Plaintiff’s assignment of benefits, release and demand dated 6/7/11 before it issued payment and the Defendant’s adjuster admits she either read it or should have read it. The adjuster that issued the payment for the Defendant, Ms. Garcia, admits she did not send the check to the attention of the office manager. The court finds Plaintiff’s assignment of benefits, release and demand contains a conspicuous statement advising the Defendant that before any tender is made it should be sent to the attention of the Plaintiff’s office manager. (Office manager is in bold). It is undisputed the Defendant did not mail the payment to the attention of the office manager. Thus, §673.3111 is not available to the Defendant as a matter of law. See Judge Pole’s order of 10/4/12 where he denied Defendant’s motion for Statutory accord and satisfaction based on §627.3111 and the language not being conspicuous.
Common law accord and satisfaction
In this case, there is no genuine issue of material fact of a common law accord and satisfaction for many reasons including, but not limited to the fact there was no dispute prior to the issuance of the payment. This is undisputed in the record. The Defendant issued payment to the Plaintiff based exclusively upon 200% of Medicare and nothing more because that is what the Defendant thought the law allowed the Defendant to pay based upon. According to Ms. Garcia’s transcript there was no analysis or investigation on how much to pay. It is undisputed there was no communications of any kind between the parties to indicate there was any type of dispute before payment was issued. In fact, the Defendant never spoke to the Plaintiff about this matter prior to the check being issued via telephone, fax, or email.
It is also undisputed the only proof the Defendant has of an accord and satisfaction is the fact the Plaintiff cashed the check at issue and nothing more. Neither the Defendant’s explanation of review nor the cover letter dated 6/30/11 that was sent with the check makes any reference to a full and final payment or a dispute. In fact, the cover letter expressly states the Defendant reserves all rights and defenses including, but not limited to claims for reimbursement. Ms. Garcia did not know why or whose idea it was to place the qualifying language on the pay to the order line. Ms. Garcia admits she received the Plaintiff’s assignment of benefits and that in bold, at the top, it states the insurer should read the document in its entirety. This document clearly states:
Disputes: The insurer is directed by the provider and the undersigned to not issue any checks or drafts in partial settlement of a claim that contain or accompanied by language releasing the insurer or its insured/patient from liability unless there has been a prior written settlement agreed to by the health provider (specifically the office manager) and the insurer as to the amount payable under the insurance policy. The insured and the provider hereby contests and objects to any reductions or partial payments. Any partial or reduced payment, regardless of the accompanying language, issued by the insurer and deposited by the provider shall be done so under protest, at the risk of the insurer, and the deposit shall not be deemed a waiver, accord, satisfaction, discharge, settlement or agreement by the provider to accept a reduced amount as payment in full. The insurer is hereby placed on notice this provider reserves the right to seek the full amount of the bills submitted. If the PIP insurer states it can pay claims at 200% Medicare then the insurer is instructed & directed to provide this provider with a copy of the policy of insurance within 10 days. Any effort by the insurer to pay a disputed debt as full satisfaction must be mailed to the address above after speaking with the office manager, and mailed to the attention of the Office Manager. See Fla. Stat. §673.3111.
Thus, the Defendant was placed on notice before the check was issued that the Plaintiff would contest any partial payments and any partial or reduced payment, regardless of the accompanying language, issued by the insurer and deposited by the provider shall be done under protest, at the risk of the insurer, and the deposit shall not be deemed a waiver, accord, satisfaction, discharge, settlement or agreement by the provider to accept a reduced amount as payment in full and the insurer was placed on notice this provider reserves the right to seek the full amount of the bills submitted. The Defendant issued the check with the full and final language after being told it should not unless there was a prior written settlement which there was not.
The court has reviewed and hereby adopts Judge Lee’s reasoning in the case of Best American Diagnostic a/a/o Pineiro v. United, 20 Fla. L. Weekly Supp. 447a (Fla. Broward County Court 2013) which was appealed by United and affirmed by the 17th Cir. Court, Case number CACE-13-002430, as well as the reasoning of Judge DeLuca in the case of Health Diagnostic of Miami (Puello) v. United, 19 Fla. L. Weekly Supp. 879b (Fla Broward County Court 2012) which was affirmed by the 17th Cir. Court of appeal and the 4th DCA after reviewing the briefs declined to accept certiorari. Factually, all of these cases are similar and there is no reason this court should reach a different result based on this record.
For the reasons set forth above there is no genuine issue of material fact of a common law accord and satisfaction in this case because: a) the language of full and final that appears only on the check is neither clear nor conspicuous, b) there was no dispute prior to the issuance of the check, c) prior to the time United issued the check United was apprised that the Plaintiff objected to and contested any reductions or partial payment and would not accept a partial payment as payment in full unless there was an agreement in writing, d) there was no meeting of the minds as to the partial payment as there were no conversation between the parties as to the payment and e) for the other reasons argued by the Plaintiff and that appear in the Plaintiff’s motion.
Accordingly, Plaintiff’s Motion for Summary Judgment is hereby granted as to both of the Defendant’s affirmative defenses
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