23 Fla. L. Weekly Supp. 605a

Online Reference: FLWSUPP 2306NIXInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Summary judgment is entered in favor of medical provider on affirmative defense of common law accord and satisfaction where evidence shows that there was no mutual intent to effect settlement of existing dispute by entering into superseding agreement since parties were unaware of dispute prior to insurer’s issuance of check for partial payment of claim and insurer believed payment was full satisfaction of its obligation — Further, summary judgment is entered in favor of provider on defense of statutory accord and satisfaction where amount of claim was not subject to dispute prior to payment, claim paid by application of statutory fee schedule was liquidated, and insurer’s check did not contain conspicuous language to effect that it was tendered as full satisfaction of claim

MILLENNIUM RADIOLOGY LLC., (Ronnica Nix), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-20434 SP 23 (02). August 3, 2015. Caryn Schwartz, Judge. Counsel: Kathy Eikosidekas, Marks and Fleischer, PA, Fort Lauderdale, for Plaintiff. Sean Sweeney, Miami, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT REGARDINGDEFENDANT’S AFFIRMATIVE DEFENSE OFACCORD AND DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT RE:ACCORD AND SATISFACTION ANDREQUEST FOR 57.105 SANCTIONS

THIS CAUSE having come on to be heard before me on Plaintiff’s Motion for Summary Judgment Regarding Defendant’s Affirmative Defense of Accord and Satisfaction and Defendant’s Motion for Summary Judgment Re: Accord and Satisfaction and Request for 57.105 Sanctions and the Court having heard and considered the argument of counsel, having reviewed the file, including, but not limited to, the above-referenced Motions and Memorandum of Law (and attachments thereto), deposition transcripts, affidavits, record evidence, and applicable case law and Florida Statutes provided to the Court, being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment Regarding Defendant’s Affirmative Defense of Accord and Satisfaction is GRANTED and Defendant’s Motion for Summary Judgment Re: Accord and Satisfaction and Request for 57.105 Sanctions is DENIED for the reasons set forth below.

SUMMARY OF FACTUAL BACKGROUND

This case involves a claim for personal injury protection (“PIP”) benefits. On September 13, 2010, Plaintiff, MILLENNIUM RADIOLOGY LLC., (Ronnica Nix) [“Millennium”] provided a lumbar MRI to Ronnica Nix. Pursuant to an assignment of benefits, Plaintiff billed Defendant, UNITED AUTOMOBILE INSURANCE COMPANY [“United” or “UAIC”], $2,150.00 for the MRI provided to its insured, Ronnica Nix. In response, Defendant paid $981.28 for the lumbar MRI. This amount is equal to the fee schedule amount set forth in Fla. Stat. §627.736(5)(a)(2). In its explanation of review Defendant stated “all reductions are due to guidelines indicated in Senate Bill SB 1092.” See Affidavit of Roberta Kahana, filed in support of Plaintiff’s Motion. The Explanation of Review makes no mention of payment being tendered as a compromise to resolve a dispute or that acceptance of same was expressly conditioned on Plaintiff’s acquiescence to same. The “Pay to the Order” line of the check contained the following language, in the same type, font size and color:

MILLENNIUM RADIOLOGY, LLC.

aao RONNICA J. NIX for dos: 8/5/10 for full and final

pip benefits for dol: 2/3/10

See Affidavit of Roberta Kahana, filed in support of Plaintiff’s Motion. There was no other correspondence sent from Defendant to Plaintiff. Id. It is further undisputed there was no other communication between Defendant and Plaintiff with regard to the bill at issue: Id. See Plaintiff’s Notice of Filing Deposition Transcript of Monica Johnson, filed in support of Plaintiff’s Motion for Final Summary Judgment, page 15, lines 14-end; page 16, lines 1-5; page 18, lines 12-23; pages 21 – 22; page 24, lines 7-17, page 25, lines 12-21.

ANALYSIS WITH MORE DETAILED FACTS

Defendant alleges accord and satisfaction both under statutory and common law. The main issue to be decided by this Court is whether Defendant’s Explanation of Review combined with a check containing the phrase “full and final pip benefits” in the “Pay to the Order Of” line constitutes an accord and satisfaction as matter of law.

I. Statutory Accord & Satisfaction

A. Fla. Stat. §673.3111 provides:

673.3111 Accord and satisfaction by use of instrument. —

(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.

(3) Subject to subsection (4), a claim is not discharged under subsection (2) if either paragraph (a) or paragraph (b) applies:

(a) The claimant, if an organization, proves that:

1. Within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place; and

2. The instrument or accompanying communication was not received by that designated person, office, or place.

(b) The claimant, whether or not an organization, proves that, within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with subparagraph (a)1.

(4) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.

Thus, in order to invoke the defense of accord and satisfaction under the Uniform Commercial Code, Defendant must prove (1) it made a good faith tender; (2) the amount of the claim was unliquidated or subject to a dispute; and (3) that Plaintiff obtained payment of the instrument. This Court has previously addressed this legal issue with almost identical Facts in the case of BEST AMERICAN DIAGNOSTIC CENTER, INC., (Obdulia Romaguera), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s), Case No. 11-27641 SP 23 (02) October 17, 2013 — 21 Fla. L. Weekly Supp. 270c. The Court must analyze each of the above requirements to determine whether Defendant’s payment constituted an accord and satisfaction.

1)

Does there exist any genuine issue of material fact in determining whether the Defendant made a good faith tender of its check as full satisfaction of the claim under Fla. Stat. §673.3111(1)?

According to the deposition transcript of Monica Johnson, at page 24, Lines 7-25, Defendant believed its payment of $981.28 to Plaintiff in satisfaction of Plaintiff’s bill in the amount of $2150.00 was reasonable and satisfied the entire amount it owed. Ms. Johnson agreed (see pages 26-33 of her transcript) that the recommended allowance of $1,226.60 (the amount on which Defendant based its calculation of payment, after which other factors were considered to arrive at $981.28) is identical to the amount of 200% of Medicare Part B in the year and in the area in which the services were rendered, that there was no correspondence sent by United to Millennium or phone calls made by United to Millennium prior to issuing the check regarding the amount owed, that there was no correspondence in Ms. Johnson’s file showing that United sent Millennium a copy of the declarations page showing the policy form number, or showing that a copy of the policy was sent with the checks or that the specific portions of the policy upon which United relied to make payment were sent to Millennium. The Court also reviewed all other application portions of the deposition transcript. The Court has included facts above that also apply to A.2) below, to assist this Court in determining whether or not there was a good faith tender. However, since it is difficult to determine, based upon the evidence presented in this particular case, whether or not a good faith tender was made by the Defendant, there exists a genuine issue of material fact regarding a good faith tender of the check by Defendant in full satisfaction of Plaintiff’s claim.

2)

Does there exist any genuine issue of material fact in determining whether or not the amount of the claim was unliquidated under Fla. Stat. §673.3111(1)?

After considering all the evidence and Florida law presented, the Court finds no merit in Defendant’s contention that its payment was “unliquidated.” On January 1, 2008, the new No Fault statute became effective, which included permissive language allowing insurers to limit reimbursement of services pursuant to a “fee schedule” under Fla. Stat. §627.736(5)(a)(2). It has since been established that insurers are not permitted to reimburse medical services by applying Fla. Stat. §627.736(5)(a)(2) unless their policies provide language selecting this payment methodology. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d __ So. 3d __, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a]; DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc.(“Virtual I”), 79 So.3d 55, 58 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. The evidence in this case shows that despite Defendant’s failure to include any such language permitting reimbursement pursuant to Fla. Stat. §627.736(5)(a)(2), Defendant intended to pay an amount equivalent to the “fee schedule” amount. See Deposition Transcript of Monica Johnson, page 24, lines 7 — end and page 25, lines 1 – 11. An amount of an obligation that is ascertained by mere mathematical calculation or fixed by specific rule of law is, by definition, a liquidated claim. Watson v. Internet Billing Co., 888 So.2d 533 (Fla. 4th DCA, 2004) [29 Fla. L. Weekly D2141a]; Hill v. Murphy, 872 So.2d 919 (Fla. 2nd DCA, 2003) [28 Fla. L. Weekly D2145a]. The amount tendered by Defendant is a liquidated sum because the amount can be determined by an arithmetical calculation or by application of definite rules of law, specifically Fla. Stat. §627.736(5)(a)(2). See DYC Fishing, Ltd. v. Martinez, 994 So.2d 461 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2604a]. In Bowman v. Kingsland Dev. Inc., 432 So.2d 660 (Fla. 5th DCA, 1983), this Court considers the following language of that opinion which provides, in pertinent part:

Appellee, as maker, executed to appellant, as payee, a negotiable promissory note that contained a usual provision that the maker upon default in payment agreed “to pay all costs of collection, including reasonable attorney’s fees.” The issues are whether the claim for attorney’s fees in this case was for liquidated or unliquidated damages and the consequent notice requirements to be met with regard to a defendant after default.

Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law. Since every negotiable instrument must be “an unconditional promise or order to pay a sum certain in money” (see, e.g., §§ 673.104(1)(b) and 673.106, Fla. Stat. (1981)), actions for the sums directly due on negotiable instruments are, by definition, actions for liquidated damages. However, damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment. [Emphasis added]. Since the “reasonableness” of an attorney’s fee or other charge for services cannot be ascertained without the presentation of facts relating to the factors that must be considered in determining the reasonableness of a fee, every claim of damages for the reasonable value of services is a claim for unliquidated damages. See, e.g., Code of Professional Responsibility, DR 2-106, Fees for Legal Services; Cohen v. Cohen, 400 So.2d 463(Fla. 4th DCA 1981). [432 So.2d 663]

Accordingly, an item of damages for “a reasonable attorney’s fee,” is not liquidated. [A defaulting party has a due process entitlement to notice and opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages. Protection of this right is provided by Florida Rule of Civil Procedure 1.080(h)(1) and the last sentence in Rule 1.440(c). See Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980).]

We note with interest that section 673.106(1)(e) provides in effect that the sum payable in a negotiable instrument is a sum certain even though it is to be paid with costs of collection or an attorney’s fee or both upon default. The implication of this sentence is a recognition that while the principal and interest due under a negotiable instrument must be a sum certain and hence are liquidated as an item of damages, costs of collection and attorney’s fees are normally unliquidated. This statutory provision prevents that fact from causing a promissory note containing a provision for attorney’s fee to be non-negotiable.

Because the amount of payment reflected on Defendant’s check is calculated based upon the application of a statutory fee formula, then by definition the claim is “liquidated” and unless there was a previous dispute (which the Court finds, based upon the evidence presented, that there was not a previous dispute) then the payment of the liquidated amount cannot give rise to an accord and satisfaction. See St. Mary’s Hospital v. Schocoff, 725 So.2d 454 (Fla. 4th DCA, 1999) [24 Fla. L. Weekly D405a](Insurer’s payment and acceptance by the insured of an amount the insurer was obligated to pay in any event was not an accord and satisfaction where the letter accompanying payment indicated that it was the maximum amount it was obligated to pay.) Based upon the above analysis of the evidence presented and Florida law, the Court determines that the Plaintiff’s claim was unliquidated, as a matter of law, because there exists no genuine issue of material fact as to this issue. Therefore, Fla. Stat. §673.3111(1) was not invoked and Defendant’s failure to meet its burden of establishing that Plaintiff’s bills are “unliquidated” precludes the establishment of a statutory accord and satisfaction affirmative defense.

3)

Does there exist any genuine issue of material fact as to whether or not the amount of the claim was subject to a bona fide dispute in order to invoke Fla. Stat. §673.3111(1)?

In determining whether or not the elements of Fla. Stat. §673.3111(1) were met, this Court finds there is no genuine issue of material fact regarding a bona fide dispute between the parties. The Court finds that based upon the evidence presented and Florida law, the Plaintiff’s claim was not subject to a bona fide dispute, as a matter of law.

Prior to Defendant’s issuance of the check, there was no communication between the parties with regard to the bill. The evidence considered by the Court demonstrated Defendant intended to satisfy its full obligation under the policy by paying the fee schedule amount, and Defendant did not communicate any defenses to paying the claim. The Explanation of Review did not communicate the existence of a dispute, or that the payment was made as an offer to compromise. See Deposition Transcript of Monica Johnson, filed in support of Plaintiff’s Motion for Final Summary Judgment, page 15, lines 14-end; page 16, lines 1-5; page 18, lines 12-23; pages 21 – 22; page 24, lines 7-end, page 25, lines 1-21. See Also Plaintiff’s Affidavit of Roberta Kanana.

There must be unequivocal evidence that a dispute existed prior to the issuance of the payment by the Defendant. San Hueza v. National Foundation Life Ins. Co., 545 So.2d 321 (Fla. 3d DCA, 1989)(where insurer issued checks for payment of medical services in an amount for which there was no real dispute so that there was nothing to be compromised, the defense of accord and satisfaction fails). If neither side believes that the other is compromising or accepting less than what was legally enforceable, then there is no dispute.

Here, the Explanation of Review was completely silent as to the nature and extent of any dispute between the parties. There was no negotiation or contact between the parties prior to the issuance of the check. The Explanation of Review merely contained the unilateral pronouncement that “all reductions are due to guidelines indicated in Senate Bill SB 1092.” Defendant’s adjuster testified that the amount tendered was the full amount Defendant was obligated to pay based on the fee schedule. Plaintiff was not given any information as to whether Defendant’s policy allowed for the “fee schedule”.

Defendant intended to pay the fee schedule amount as the maximum reimbursement owed, despite having no provision in its policy which allows the application of the fee schedule. Pino v. Union Bankers Ins. Co., 627 So. 2d 535 (Fla. 3d DCA, 1993) (Insurer’s unilateral pronouncement accompanied by tender does not evolve into accord and satisfaction). Where the amount on the check is believed to satisfy the entire amount that is owed Fla. Stat. 673.3111 is unavailable to affect accord and satisfaction. Berman v. US Financial Acceptance Corporation, 669 So.2d 1116 (Fla 4th DCA, 1996) [21 Fla. L. Weekly D719b] Fla. Stat. 673.3111 does not apply to undisputed debt). Although the amount on the HCFA was greater than the “fee schedule,” there was no way of Plaintiff to know whether Defendant’s policy contained language which permitted Defendant to apply Fla. Stat. §627.736(5)(a)(2)(2008). Based on the evidence demonstrating the Explanation of Review was silent as to the existence of a dispute, that Defendant did not communicate that the payment was an offer to compromise, and Defendant intended to satisfy its complete obligation by paying the fee schedule amount, the Court concludes there was no dispute. Republic Funding Corp. of Florida v. Juarez, 563 So.2d 145 (Fla. 5th DCA, 1990)(In the absence of a dispute and a finding or admission that the parties intended to, and did, reach an accord and agreed to resolve that dispute by payment of an agreed amount, a partial payment of a legal obligation does not act to satisfy and discharge that obligation). See Id. Based upon the above analysis, the Court determines that there was no bona fide dispute.

B. The Court must determine, as a matter of law, whether or not the check and accompanying documentation contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim under Fla. Stat. §673.3111(2).

Although the Court found Defendant has not met at least two of the threshold requirements of Fla. Stat. §673.3111(1), the Court will still determine whether or not payment tendered to Plaintiff contained a “conspicuous statement” as required under §673.3111(2).

As stated in Paragraph IA., above, Fla. Stat. §673.3111(2) provides: “Unless subsection (3) applies, the claim is discharged if the person against whom 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.” Thus, in order to demonstrate an accord and satisfaction pursuant to Fla. Stat. §673.3111(2), Defendant must prove the check and accompanying document contained a conspicuous statement sufficient to provide notice that the instrument delivered was in full satisfaction of the claim.

Florida Statute §671.201(10) defines the term “conspicuous” as follows:

(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” is a decision for the court. 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.

Whether the face of a check contains a “conspicuous statement” that the check is presented as full and final satisfaction of Plaintiff’s entire claim is a question of law under Fla. Stat. 627.201(10); Atlantic Acu Medical Center Corp. a/a/o Guillaume Baptiste v. United Automobile Insurance Company, 16 Fla L. Weekly Supp. 781a (County Ct Broward Judge Merrigan, May 25, 2009). Further, conspicuousness is judged by the relationship of the “warning” to the color, size, and type of the print surrounding it. O’Connell v. Norwegian Carribean Lines, Inc., 639 F.Supp 846 (ND, Ill., 1986). The purported “conspicuous” language in the check does not comply with the statute and does not operate to affect an accord and satisfaction. The language contained in the “Pay To The Order Of” section was the same size as the surrounding text and was not in a type, font, or color in contrast to the surrounding text of the same size. See Orange Motors of Coral Gables, Inc. v. Dade County Dairies, Inc., 258 So.2d 319 (Fla. 3d DCA, 1972)(Statute requiring conspicuous language excluding or modifying implied warranties of merchantability not satisfied where language on disclaimer in the same color, size, and type used for other provisions); Osborne v. Genevie, 289 So.2d 21 (Fla. 2d DCA, 1974)(Statute requiring conspicuous language excluding or modifying implied warranties not satisfied where language on disclaimer in the same color, size, and type used for other provisions and was not otherwise distinguishable); Gonzalez v. Associates Live Insurance Company, 641 So.2d 895 (Fla. 3d DCA, 1994)(Terms of medical insurance policy which were required to be conspicuous were unenforceable as text was printed in same color, style, and size of type as the remainder of the page); See also Hirsch v. Klosters Rederi, 521 So.2d 316 (Fla. 3d DCA, 1988). Atlantic Acu Medical Center Corp. (Guillaume Baptiste) v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp 781a (Broward County Court Judge Merrigan, May 25, 2009); Complete Rehab and Medical Centers of Plantation, Inc. (M. Martinez) v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 1171a (Broward County Court, Judge Lee, October 12, 2009); Michael J. Delesparra DC, PA (Petit-Jean, Michelle) v. United Automobile Insurance Company, 19 Fla. L. Weekly Supp. 214a (Broward County Court, Judge Lee, December 8, 2011); Ann K Medical Office, Inc. (Rosa Delgado) v. United Automobile Insurance Company, 17 Fla. L. Weekly Supp. 684a (Miami-Dade County Court, Judge Lehr, May 21, 2010); Best American Diagnostic Center (Georgina Perez) v. United Automobile Insurance Company, Case No. 11-27626 SP 23 (05) (Miami-Dade County, Judge Charles Johnson, October 5, 2012) [20 Fla. L. Weekly Supp. 163b]. Defendant’s failure to tender an instrument with conspicuous language as required by the statute cannot create an accord and satisfaction.

C. Court distinguishes, under Fla. Stat. §673.3111, the facts and the ruling in UNITED AUTOMOBILE INSURANCE COMPANY, Appellant v. BRIAN M. SILVER., D.C., P.A. a/a/o CHRISTINA RODRIGUEZ, Appellee, 20 Fla. L. Weekly Supp. 491a. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami Dade County, Case No. 10-437 AP, 11-020 AP.L.T. Case No. 08-17040 SP 23, March 4, 2013 from the facts of this case.

1. The following facts in the Brian Silver case are undisputed:

a) Mrs. Rodriguez was involved in a motor vehicle accident on October 29, 2007. She made a claim for PIP benefits pursuant to another person’s insurance policy, whose insurer is UNITED AUTOMOBILE INSURANCE COMPANY (“UAIC”). Rodriguez first reported the claim to UAIC on November 2, 2007. On November 15, 2007, UAIC requested Rodriguez to submit to an independent medical examination (“IME”). The IME was conducted by Dr. Marvin Merrit, D.C., on December 6, 2007. On December 20, 2007, UAIC sent a letter to Mrs. Rodriguez’ attorney informing her that Dr. Merritt determined that further chiropractic treatment would not be reasonable, related, or medically necessary. Consequently, the letter suspended benefits for all chiropractic services rendered after December 6, 2007.

(b) Subsequent to the December 6th letter suspending benefits, UAIC received four sets of bills from Plaintiff. The first two sets of bills were received on December 24, 2007, for dates of treatment rendered from November 9, 2007 through December 18, 2007. The third set was received on January 7, 2008 for dates of treatment rendered on January 2, 2008 and January 3, 2008. The fourth set was received on January 14, 2008, for dates of treatment rendered on January 4, 2008 through January 10, 2008.

(c) On January 22, 2008, UAIC sent an explanation of benefits (EOB) to Plaintiff along with a check for $1,143.52. The EOB included an itemized specification showing all charges submitted by Plaintiff for treatment rendered to Christina Rodriguez which had been considered for payment by UAIC. It also stated that the IME physician who examined Ms. Rodriguez advised UAIC that any further chiropractic treatment on or after 12/6/07 would not be reasonable, related or medically necessary and that any services rendered by a chiropractor or diagnostic tests referred to by a chiropractor would not be reasonable, related or medically necessary and therefore not payable. The EOB also stated that enclosed was a draft in the amount of $1,143.52. The check stub stated that the payment was for “FULL & FINAL PAYMENT OF PIP BENEFITS FOR CHRISTINA RODRIGUEZ, DOS 11/5/2007-1/3/2008.” [Emphasis added].

The check memo specifically stated the dates of service up to January 3, 2008. The check enclosed did not pay the entire amount for medical bills that accrued during the time period reflected on the check memo, however, Plaintiff cashed the check and did not file suit for the balance due for dates of service 11/5/2007-1/3/2008.

(d) Thereafter, Plaintiff submitted six more sets of bills for dates of service rendered January 14, 2008 through February 19, 2008 and UAIC refused to pay them. On May 2, 2008, Plaintiff filed suit on the unpaid bills for services rendered on January 4, 2008 through February 19, 2008. As an affirmative defense, UAIC raised accord and satisfaction, and pled as follows:

“As and for its affirmative defense, Defendant states that the medical bills on behalf of Claimant, CHRISTINA RODRIGUEZ, were paid on demand, drafts were issued by the Defendant, said drafts were cashed and payment was accepted by the medical provider in accord and satisfaction of full and final settlement of the PIP benefits for the subject claim, 943384. As a result, Defendant states that it is not liable for any further or additional payments, and the payment of said bills is not overdue.”

2. In the Brian Silver case, the Court ranted Rodriguez’s Motion For Summary Judgment, case went to trial, Court granted Plaintiff’s Motion for Directed Verdict, and then the Defendant appealed.

Rodriguez moved for summary judgment on this issue of accord and satisfaction, and the trial court granted Plaintiff’s motion for summary judgment because the trial court found, as a matter of law, that the cause of action in the Brian Silver case was for dates of service and claims submitted subsequent to January 3, 2008, which were not included in the check for $1143.52. Therefore, the trial court determined that the affirmative defense of accord and satisfaction did not apply to this case. The trial court found that there was no genuine issue of material fact because the defense improperly asserted the defense of accord and satisfaction for full and final payment of PIP benefits by check to Plaintiff for Christina Rodriguez WHICH SAID CHECK STATED THAT IT WAS FULL AND FINAL PAYMENT FOR DATES OF SERVICE FROM 11/5/2007 — 1/3/2008. The case proceeded to trial on the issue of whether the bills were reasonable, related or necessary. The court entered a directed verdict for Plaintiff. Thereafter, final judgment was entered for Plaintiff in the amount of $4,212.22. UAIC appealed and the Circuit Court, 11th Judicial Circuit (Appellate) had not determined that accord and satisfaction actually occurred. What they found was that the dispute regarding the intent of the parties, and the question of whether the check was an accord and satisfaction of specific bills, or of all bills relating to the accident, creates a genuine issue of material fact. The Appellate Court found that the trial court should have denied the summary judgment especially where the possibility of a genuine issue of material fact exists. (THIS COURT SHALL ADDRESS THE STANDARD FOR GRANTING SUMMARY JUDGMENT IN PARAGRAPH III, BELOW).

Defense cited the case of United Auto. Ins. Co. v Palm Chiropractic Center, Inc. a/a/o Joyce Thomas, 51 So. 3d 506 (Fla. 4th DCA 2011) [35 Fla. L. Weekly D2686a] for the proposition that there is accord and satisfaction for the dates of service rendered by Plaintiff from January 14, 2008 through February 19, 2008, However, the facts in Palm are clearly distinguishable from the facts in Brian Silver, as will be discussed further below.

II. Common Law Accord and Satisfaction

A. Analysis of law and facts of this case to determine if there is a genuine issue of material fact regarding whether there has been an accord and satisfaction under Florida case law.

An affirmative defense of accord and satisfaction requires (1) proof of preexisting dispute as to the nature and extent of obligation between parties, (2) their mutual intent to effect settlement of that dispute by superseding agreement, and (3) the obligor’s subsequent tender and obligee’s acceptance of performance of new ageement in full satisfaction and discharge of prior disputed obligation. St. Mary’s Hospital, Inc. v. Schocoff, 725 So.2d 454 (Fla. 4th DCA, 1999) [24 Fla. L. Weekly D405a]. There must be unequivocal evidence that a dispute existed prior to the issuance of the payment by the Defendant. See San Hueza v. National Foundation Life Ins. Co., 545 So.2d 321 (Fla. 3d DCA, 1989)(where insurer issued checks for payment of medical services in an amount for which there was no real dispute defense of accord and satisfaction fails).

In this case, the evidence presented demonstrates Defendant communicated no dispute prior to tendering the check. See Id. Defendant contends its payment of a lesser amount than the billed amount is sufficient to communicate a dispute. An insurer, however, cannot create a dispute by making a payment in an amount it contends will fully satisfy its obligation. Pino v. Union Bankers Ins. Co., 627 So.2d 535 (Fla. 3d DCA 1993). Here, the Defendant intended to pay the full amount of its obligation and it did not believe that the amount paid was a compromise of what Defendant owed. See Deposition Transcript of Monica Johnson, filed in support of Plaintiff’s Motion for Final Summary Judgment, page 15, lines 14-end; page 16, lines 1-5; page 18, lines 12-23; pages 21 – 22; page 24, lines 7-end, page 25,lines 1-21. See Also Plaintiff’s Affidavit of Roberta Kahane.

Both parties must intend to enter into a new agreement in which the party, against whom the accord and satisfaction is asserted, is taking less than he believes was legally entitled. See Chassan Professional Wallcovering v. Victor Frankel, 608 So. 2d 91 ( Fla. 4th DCA 1992); Republic Funding Corp. of Florida v. Juarez, 563 So.2d 145, 146 (Fla App. 5 Dist., 1990). If neither side believes that the other is compromising or accepting less than what was legally enforceable, then there is no meeting of the minds that issuing or cashing the check results in an accord and satisfaction. Based on the evidence presented and considered, there is no evidence a dispute existed prior to Defendant’s payment. Defendant intended to satisfy its full obligation under the policy by paying the fee schedule amount and communicated no defenses to payment. Because the Explanation of Review was silent as to the Defendant’s reimbursement obligation and the nature of a dispute, and Plaintiff was not provided any information regarding Defendant’s obligation under the policy, it is this Court’s holding that no dispute was communicated that would result in an accord and satisfaction.

B. Court distinguishes, under Common Law Accord and Satisfaction, the facts and the ruling in UNITED AUTOMOBILE INSURANCE COMPANY, Appellant v. BRIAN M. SILVER, D.C., P.A. a/a/o CHRISTINA RODRIGUEZ, Appellee, 20 Fla. L. Weekly Supp. 491a, Circuit Court, l1th Judicial Circuit (Appellate) in and for Miami Dade County, Case No. 10-437 AP, 11-020 AP.L.T. Case No. 08-17040 SP 23, March 4, 2013 from the facts of this case.

In the case of Martinez v. South Bayshore Tower, LLLP, 979 So.2d 1023 (Fla. 3d DCA 2008) [33 Fla. L.Weekly D655a], citing Rudick v. Rudick, 403 So.2d 1091,1094 (Fla. 3d DCA 1981). The Martinez Case involved pre-construction contracts where the purchasers gave the developer deposits (10% of the purchase price) and the developer later abandoned the project. The developer returned the deposits to the purchasers with a letter stating that the cashing of the check would serve as an accord and satisfaction, terminating the parties’ rights and obligations under the contract. All the purchasers cashed their checks. The Third District affirmed the summary judgment granted by the trial court and found that the cashing of the checks satisfied the elements of accord and satisfaction — the clear intent to effectuate a settlement and actual performance of the new agreement.

In the Brian Silver case, the letter enclosing the check did not create a new agreement between the parties. The letter did not even offer to create a new agreement. The letter merely provided an explanation of the amount of the benefits paid, and why no future payments would be forthcoming, so as to avoid overdue payments. The letter strictly complied with Section 627.736(4)(b)2, Florida Statutes, which states:

If an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined te pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge if this does not limit the introduction of evidence at trial. The insurer must also include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.

In the Brian Silver case, there was no mention of a settlement and nothing to indicate that the cashing of the check would satisfy all past and future claims for the October 29, 2007 date of loss. As a result, cashing the check could not have constituted performance of a new agreement. There is no genuine issue of material fact to be determined by the fact finder. The insurer simply compiled with the above-referenced statute and provided the requisite letter according to law. See Pino v. Union Bankers Ins. Co., 627 So.2d 535 (Fla. 3d DCA 1993) (a letter sent in compliance with the law, advising of rescission, does not constitute a basis for accord and satisfaction when the insured deposits the refunded premiums check).

Moreover, while it may be argued that accord and satisfaction occurred for the claims for service prior to and including January 3, 2008, the Brian Silver case is not based on claims made for those dates of service. It is based on dates of service and claims submitted subsequent to January 3, 2008. After the above referenced check was tendered and cashed, six more sets of bills were submitted for dates of service rendered January 14, 2008 through February 19, 2008.

In Personal Injury Protection (PIP) cases, each set of bills creates a new cause of action which is due and payable as loss accrues. Section 627.736(4) (b)1, Florida Statutes. Therefore, the subsequent set of bills, for dates of services rendered after January 3, 2008, must be treated as a wholly distinct claim. Payment constitutes an accord and satisfaction only as to an existing dispute. Martinez v. South Bayshore Tower, L.L.L.P., 979 So. 2d 1023 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D655a]. The only existing dispute in Brian Silver case pertains to the claims for benefits arising subsequent to January 3, 2008. Therefore, the affirmative defense of accord and satisfaction resulting from the previously cashed check cannot apply to the claims made subsequent to the check. The letter did not say that depositing the check would result in an accord and satisfaction of the claim, and if it had, it could be argued that such a statement would vitiate the PIP statute by preventing the prompt payment of benefits, and should result in the tendered payment being considered an overdue payment if not cashed. The letter strictly complied with the statute; did not mention “settlement;” did not mention “accord and satisfaction;” and the check previously tendered and cashed was for claims in a specific date range. Therefore, claims for subsequent bills cannot possibly be precluded. When United Auto refused to pay the subsequent bills, Plaintiff had a right to file the instant suit on the unpaid bills for services rendered from January 4, 2008 through February 19, 2008. Id. The Brian Silver suit does not involve payment of the prior claims. The suit involves payment for the subsequent claims. Therefore, Defendant could not validly plead accord and satisfaction as an affirmative defense in the instant case.

The facts of this case are distinguishable from those in Palm (the case relied upon by the majority) in that the check memo in the Palm case clearly stated that the payment was for “full and final payment of PIP benefits,” without specifying the specific dates of service. However, the case does not need to be distinguished. While this Court is bound by the opinions of the 4th DCA, (unless it conflicts with the 3rd DCA), the portion of the opinion in the Palm case that pertains to the issue in this case is dicta, and the opinion clearly fails to take into consideration the pertinent Fonda Statutes pertaining to PIP.

III. In this case the Court can grant Plaintiff’s Motion For Summary Judgment on the issue of Accord and Satisfaction.

To analyze summary judgment properly, the appellate court must determine: (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, LP., 760 So.2d 126, 130 (Fla. 2000) [25 Fla L. Weekly S390a]. A motion for summary judgment is appropriate when the moving party has shown that there are no issues of material fact, and that all that is left is a question of law. Dade County Sch. Bd. v. Radio Station JVOBA, 731 So. 2d 638, 643 (Fla. 1999) [24 Fla. L. Weekly S71a].

It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Pennco, Inc. v. Meritor Sav., 617 So. 2d 739, 739 (Fla. 2nd DCA 1993). Thus, non-existence of a genuine issue of material fact is required to grant summary judgment. Holl v. Talcott, 191 So. 2d 40,43 (Fla. 1966). The issue of whether an accord and satisfaction occurred is factual. Hannah v. James A. Ryder Corp., 380 So. 2d 507, 509 (Fla. 3d DCA 1980). HOWEVER, WHERE THE FACTS REGARDING ACCORD AND SATISFACTION ARE UNDISPUTED, THE COURT MAY GRANT SUMMARY JUDGMENT AS A MATTER OF LAW. The “defense of accord and satisfaction involves the issue of whether the parties mutually intended to effect a settlement of an existing dispute by entering into a superseding agreement.” Id. Thus, the issue of whether an accord and satisfaction occurred “is one of fact which may not properly be resolved by summary judgment.” Id. Whether there was an accord and satisfaction involves a question of intent which is a question of fact to be determined by reviewing the transactions of the parties, and reasonable inferences deriving therefrom. Miller-Dun Co. v. Green, 154 Fla. 72,16 So. 2d 637,638 (1944). Once again, applying the common law regarding accord and satisfaction, where the evidence clearly shows that there was no mutual intent to effect a settlement of an existing dispute by entering into a superceding agreement, as is the case in the instant case, and where the evidence shows, after reviewing transactions of the parties, that there was no intent, as is the case in the instant case, the court may grant summary judgment as a matter of law.

As the court stated above in the Court’s analysis under Fla. Stat. §673.3111, this Court finds there is no genuine issue of material fact regarding a bona fide dispute between the parties. The Court finds that based upon the above analysis of the evidence presented and Florida law, the Plaintiff’s claim was not subject to a bona fide dispute, as a matter of law. In addition, based upon the above analysis of the evidence presented and Florida law, the Court determines that the Plaintiff’s claim was unliquidated, as a matter of law, because there exists no genuine issue of material fact as to this issue.CONCLUSION

Based upon the evidence presented, through depositions, affidavits and other evidence the court considered, in addition to attachments thereto, there was clearly NO mutual intent to effectuate an accord and satisfaction of all claims relating to the subject accident when the check was tendered and cashed. Thus, there exists NO genuine issue of material fact and summary judgment may be granted. Therefore, based upon the undisputed facts, the Plaintiff is entitled to summary judgment regarding Defendants defense of Accord and Satisfaction as a matter of law. Accordingly, Plaintiff’s Motion for Summary Judgment Regarding Defendant’s Affirmative Defense of Accord and Satisfaction is GRANTED and Defendant’s Motion for Summary Judgment Re: Accord and Satisfaction and Request for 57.105 Sanctions is DENIED.