22 Fla. L. Weekly Supp. 856a
Online Reference: FLWSUPP 2207HENDInsurance — Affirmative defenses — Accord and satisfaction — Notation on letter accompanying check fails to meet conspicuousness requirement for statutory accord and satisfaction — Elements of common law accord and satisfaction not met
MR SERVICES I, INC. (a/a/o Kevin Henderson), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-1212 COCE 53. January 14, 2015. Robert W. Lee, Judge. Counsel: Steven Lander, Lander Dalal & Associates, P.L., Fort Lauderdale, for Plaintiff. Russell Kolodziej, United Automobile Insurance Company, Office of the General Counsel, Miami Gardens, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT, and ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON DEFENSE OF ACCORD AND SATISFACTION
THIS CAUSE came before the Court on January 7, 2015 for hearing of the Defendant’s Motion for Final Summary Judgment, and the Plaintiff’s Motion for Summary Judgment on the Defense of Accord and Satisfaction, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of all “summary judgment evidence” filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
As to the defense of common law accord and satisfaction, the Court finds that the elements of this defense have not been met. As to statutory accord and satisfaction, the Court finds that the notation added to the top of the letter accompanying the tendered check — which the Defendant argues put the Plaintiff on notice that this was a full and final payment of a disputed amount — fails as a matter of law as it fails to meet the conspicuousness requirement set forth in the statute for tender of a negotiable instrument. Fla. Stat. §673.3111. Indeed, when the Defendant provided the letter during the hearing to the Court, even the Court had trouble finding the language at issue. See United Automobile Ins. Co. v. Jeffrey L. Stanger, P.A., 19 Fla. L. Weekly Supp. 927a (17th Cir. App. 2012) (determination of conspicuousness is a question of law); Fla. Stat. §671.201(10). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is DENIED, and the Plaintiff’s Motion for Summary Judgment on the Defense of Accord and Satisfaction is GRANTED.
* * *
