22 Fla. L. Weekly Supp. 1121a

Online Reference: FLWSUPP 2210WESTInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Where insurer sent letter to medical provider advising that it would not be reimbursing provider for any treatment after certain date based on results of independent medical examinations, thereafter insurer sent check marked as being for full and final payment of PIP benefits, and provider cashed check, cashing of check created accord and satisfaction that included dates of service after IME cutoff date — Provider’s claim that it believed check was payment only for dates of service up to IME cutoff date is of no moment where facts indicate that accord and satisfaction took place as matter of law

WEST COAST MEDICAL MANAGEMENT, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-458 AP. L.T. Case No. 11-2281 CC 26. June 1, 2015. An appeal from the County Court in and for Miami-Dade County, Michelle Gonzalez-Paulson, Judge. Counsel: Marlene S. Reiss, for Appellant. Michael Neimand, for Appellee.

(Before ARZOLA, SARDUY, and CABALLERO, JJ.)

(CABALLERO, Judge.) Dayma Delgado was insured under a policy for Personal Injury Protection (PIP) benefits issued by the Appellee, United Automobile Insurance Company (“United”). On May 20, 2010, Delgado was injured in an automobile accident and subsequently received medical services and treatment from the Appellant, West Coast Medical Management (“West Coast”). With treatment, Delgado assigned her rights under the policy to West Coast.

Delgado was treated by West Coast from May 29, 2010 through September 4, 2010. West Coast subsequently brought suit against United for medical bills incurred from June 28, 2010 through September 4, 2010 when United refused to pay.

In defending the suit, United, in an affirmative defense, alleged accord and satisfaction. United pleaded that on August 24, 2010, it sent a check, along with Explanations of Review of all its charges, to West Coast in the amount of $2,792.93 on which it stated: “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS F/A/O DAYMA DELGADO.” United also sent a separate check in the amount of $33.06 for interest. Both checks were subsequently cashed.

Previously, however, on July 1, 2010, United had notified West Coast’s counsel that, in accordance with the results of two IMEs, it, United, “hereby suspends benefits under this licensing chapter for any services rendered after 6/25/10.” When United subsequently received bills for services rendered to Delgado after this date, they were denied, which prompted West Coast to file suit below.

United moved for summary judgment on its accord and satisfaction affirmative defense, arguing that the checks it sent to West Coast operated to preclude recovery for the bills West Coast incurred for services rendered to Delgado after June 25, 2010; to wit, the bills for services it rendered to her from June 28, 2010 to September 4, 2010.

The trial court granted United’s motion for summary judgment, finding that, taken together, the July 1, 2010 letter suspending benefits and the August 24, 2010 cashed check with the notation, legally operated as an accord and satisfaction, and thus West Coast was not entitled to be reimbursed for the services it provided to Delgado from June 28, 2010 through September 4, 2010.

Urging error, West Coast appeals the trial court’s grant of summary judgment to United. West Coast maintains that, legally, there cannot be an accord and satisfaction where there was no “dispute” as to the bills which had not been received at the time the payment was tendered and that, alternatively, fact questions precluded summary judgment with respect to United’s and West Coast’s understanding of the purpose of the August 24, 2010 payments sent by United.

We affirm.

In general, an accord and satisfaction results when: (1) the parties mutually intend to effect a settlement of an existing dispute by entering into a superseding agreement, and (2) there is actual performance in accordance with the new agreement; compliance with the new agreement discharges the prior obligations. Martinez v. S. Bayshore Tower, L.L.L.P., 979 So. 2d 1023, 1024 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D655a]. The defense of accord and satisfaction requires proof that “the parties mutually intended to effect settlement of an existing dispute by entering into a superseding agreement . . . and . . . actual performance with satisfaction of the new agreement. . . .” Rudick v. Rudick, 403 So. 2d 1091, 1093-94 (Fla. 3d DCA 1981). If there is no performance under the new agreement, then there is no satisfaction and the defense fails. Id. at 1094; see Waxler v. Hockensmith, 474 So. 2d 415, 417 (Fla. 2d DCA 1985); Vance v. Scanlon, 121 So. 2d 709, 710 (Fla. 2d DCA 1960); Hannah v. James A. Ryder Corp., 380 So. 2d 507, 510-11 (Fla. 3d DCA 1980). Further, the question of whether the parties intended to effect a settlement of an existing dispute by entering into a superseding agreement is generally a question of fact. See Brewer v. Northgate of Orlando, Inc., 143 So. 2d 358, 361 (Fla. 2d DCA 1962); Hannah, 380 So. 2d at 509.

In United Auto. Ins. Co. v. Palm Chiropractic Center, Inc., 51 So. 3d 506 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a], a case with similar facts to this one (although in a different procedural posture), the court stated:

An accord and satisfaction results as a matter of law ‘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., 725 So. 2d at 456. This court has long held that cashing a check containing language that it is in full payment of the debtor’s obligations creates an accord and satisfaction with regard to the claim for which payment was tendered. See Eder v. Yvette B. Gervey Interiors, Inc., 407 So. 2d 312 (Fla. 4th DCA 1981); Ennia Gen. Ins. Co., Ltd v. Auld, 506 So.2d 62 (Fla. 4th DCA 1987); see also Mortell v. Keith, Mack, Lewis & Allison, 528 So. 2d 1362 (Fla. 3d DCA 1988). At the time the check was tendered in this case, there were sessions for which United Auto was not offering to pay. The check and the cover letter clearly indicated the insurer’s position that no further payments would be made. The St. Mary’s Hospital case relied upon by the circuit court did not control the outcome here because it did not involve a check with limiting language which made ‘explicit, without question, the insurer’s position [that] there are no further benefits due under the policy and it does not intend to make any further payments.’ 725 So. 2d at 456.

Here, it is undisputed that a letter was sent to West Coast by United advising West Coast that United would not be reimbursing West Coast for any treatment of Delgado beyond June 25, 2010 due to certain IME’s which were performed. It is also undisputed that on August 24, 2010, United sent a check for $2792.93, marked “FOR FULL AND FINAL PAYMENT OF PIP BENEFITS F/A/O DAYMA DELGADO,” and a separate one for interest which were cashed. Under these circumstances, the cashing of the checks created an accord and satisfaction as a matter of law. See generally Ennia Gen. Ins. Co., Ltd. v. Auld, 506 So.2d 62 (Fla. 4th DCA 1987); Mortell v. Keith, Mack, Lewis & Allison, 528 So. 2d 1362 (Fla. 3d DCA 1988); Rudick, 403 So. 2d 1091, 1093-94; Yelen v. Cindy’s Inc., 386 So 2d 1234 (Fla. 3d DCA 1980); Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978); McGhee v. Mata, 330 So. 2d 248 (Fla. 3d DCA 1976).¹

West Coast’s main argument here on appeal is that legally there cannot be an accord and satisfaction because West Coast and United did not mutually intend to effectuate a settlement of an existing dispute. As evidence, West Coast cites the testimony of its records custodian and office manager. By affidavit, he testified that:

I deposited the aforementioned check for $2,792.93 that was previously sent to our medical facility, because I believed that the Defendant [United] was issuing payment only for the May 29, 2010 through June 23, 2010 dates of service. I did not believe at the time, nor do I believe now, that the aforementioned check was full and final payment for all the dates of service previously billed. Considering all the paperwork sent by Defendant [United], namely the Explanation of Benefits and the PIP Pay-Out Log, I was led to believe that the check in the amount of $2,792.93 was not an accord and satisfaction for all the dates of service previous [sic] billed.

Leaving aside the reasonableness of the custodian’s beliefs given all the pertinent facts here, the relatively early case of Miller-Dunn Co. v. Green, 16 So. 2d 637, 638 (Fla. 1944) addresses this issue. Green convincingly states:

On the point of whether or not there was an accord and satisfaction the record shows that Miller-Dunn Company delivered to Green its check for $419.63, bearing the legend, ‘settlement in full’. Green objected to the check and returned it to appellant but later accepted and cashed it under conditions delivered to him. Green says that he accepted it under protest but we understand the law to be that when a claim in controversy is open and unliquidated and the party to whom it is due accepts payment in full it will operate as an accord and satisfaction even though the party to whom paid declares that he takes it only in part satisfaction. Sanford v. Abrams, 24 Fla. 181, 2 So. 373; Hand Lumber Co. v. Hall, 147 Ala. 561, 41 So. 78.

We are not unmindful of the fact that whether or not there was an accord and satisfaction involves a question of intent which is a question of fact to be determined by transactions and reasonable inferences therefrom. The circumstances under which the check in question was taken would seem to preclude any question that as a matter of law every element of an accord and satisfaction was present.

Succinctly, we view Green to stand for the proposition that a party’s mere saying that it did not intend for a transaction to constitute an accord and satisfaction is of no moment when the undisputed facts indicate that one has taken place as a matter of law; that is, when a party, for example, cashes a check with limiting language, as was the instant matter. Given the July 1, 2010 letter denying any further payments and the later check’s limiting language, an accord and satisfaction was legally created when the check was subsequently cashed. Simply not cashing the check would have avoided this legal ramification.

With respect to the issue of appellate attorney fees, United is entitled to its attorney fees pursuant to Florida Statute 768.79 (Offer of Judgment) and Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D576c] (recognizing that the Offer of Judgment statute applies to appeals.) The case is therefore remanded to the lower court to determine the amount of a reasonable fee.

AFFIRMED, with further instructions to the Trial Court. (ARZOLA and SARDUY, JJ., concur.)

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¹West Coast argues that, in such cases, a letter advising a provider that no further benefits would be paid must be accompanied with the final check. We find no such “temporal” requirement in the law. West Coast also maintains the “full and final” language was not “conspicuous” as required by Florida Statute 673.3111(2). However, we do address this issue, as it was not properly preserved for appellate review.

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