22 Fla. L. Weekly Supp. 951a
Online Reference: FLWSUPP 2208KALTInsurance — Affirmative defenses — Accord and satisfaction — Summary judgment — Factual issues
METRO INJURY & REHAB CENTER, INC. (a/a/o FRANK KALTENEKKER), Plaintiff, v. THE RESPONSIVE AUTO INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 12-2406 CC 24. March 3, 2015. Donald J. Cannava, Judge. Counsel: Charles Hubley, The Patino Law Firm, Hialeah, for Plaintiff. Charles Vaccaro, TheVaccaro Law Firm, P.A., Davie, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT REGARDING ACCORD AND SATISFACTION
THIS CAUSE, having come before the Court for hearing on February 19, 2015 for Defendant’s Motion for Summary Judgment, and the Court, having reviewed the pleadings and motions, heard the argument of Counsel, and being otherwise duly advised in the premises, the Court Finds and Orders as follows:
The Court finds there to be genuine dispute as to material issues of fact, including but not limited to: whether a letter including settlement language was sent along with the Defendant’s draft for payment, whether Plaintiff had the intent to effectuate a settlement by cashing a check sent by the Defendant and whether the requisite mutual intent existed to effect settlement of the dispute. See United Automobile Insurance Company v. Brian M. Silver, D.C., P.A., 20 Fla. L. Weekly Supp. 491a (Fla. 11th Cir. App. 2013) quoting Hannah v. James A. Ryder Corp., 380 So.2d 507, 509 (Fla. 3d DCA 1980).
The Court also finds the affidavit filed by the Plaintiff in response to the Defendant’s Motion for Summary Judgment to be legally sufficient based on exceptions to the rules excluding hearsay. See Fla. Stat. 90.406 and 90.803; Shands Teaching Hosp. and Clinics v. Dunn, 977 So.2d 594 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D2755a].
Accordingly the Defendant’s Motion for Summary Judgment as to Accord and Satisfaction is hereby DENIED.
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