23 Fla. L. Weekly Supp. 208a
Online Reference: FLWSUPP 2303CHAVInsurance — Personal injury protection — Affirmative defenses — Tender — Error to enter summary judgment in favor of medical provider where insurer raised affirmative defense of tender, and alleged tender was ambiguous — On remand, insurer has burden to prove that it made absolute and unconditional delivery of payment for five bills at issue and did not make non-payment of bills for other dates of service a condition of acceptance of payment
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. HIALEAH WELLNESS AND REHAB CENTER, INC., a/a/o JORGE CHAVARRIA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-464 AP. L.T. Case No. 09-3551 SP 25. May 18, 2015. An appeal from the County Court for Miami-Dade County. Counsel: Lara J. Edelstein, for Appellant. Marlene S. Reiss, for Appellee.
(Before HENDON, MILLER, REBULL, JJ.)
(REBULL, Judge.) The issue in this appeal is whether United Automobile Insurance Company’s (“United Auto”) delivery of a check to Hialeah Diagnostic constituted a valid tender, as a matter of law, thus serving as a defense to the instant action. Because we find that the check and accompanying documents are susceptible to more than one interpretation, a genuine issue of material fact precludes the entry of summary judgment and we reverse the lower court order entering summary judgment in favor of Hialeah Diagnostic.
On March 27, 2007, Hialeah Diagnostic mailed five different Health Insurance Claim Form 1500s to United Auto. Each form represented a bill for services provided by Hialeah Diagnostic to Jorge Chavarria for five dates of service from March 6, 2007 through March 9, 2007. On March 29, 2007, United Auto received the five forms.
Following receipt of the HEALTH INSURANCE CLAIM FORMs, United Auto issued an Explanation of Benefits (“EOB”) dated April 23, 2007. This EOB is set forth below in its entirety: [Editor’s Note: We have published only the body of the EOB below.]
Included with the EOB in the transmission from United Auto to Hialeah Wellness was the following draft (or check):
It appears from the record on appeal that this check had attached to it the following check stub: [Editor’s Note: Policy and claim number eliminated]
In response to the EOB and check it received, Hialeah Diagnostic returned the check to United Auto with the following letter: [Editor’s Note: Only the body of the letter is published below]
United Auto never reissued the check, or any other form of payment, for the five forms, and Hialeah Diagnostic never received any other payment for the services reflected on the forms. Hialeah Diagnostic sued United Auto for payment of the five forms.1
Although not the subject of the dispute in this action, it is important to note that Hialeah Diagnostic billed United Auto for services it provided after March 9, 2007, and United Auto paid those bills without incident. The later checks differed, in that United Auto noted both the payee and the relevant dates of service for which “full and final payment of PIP benefits” was being made:
The sole issue on appeal is whether United Auto validly tendered payment for the five forms through the submission of the April 12, 2007 check and accompanying April 23, 2007 EOB. United Auto moved below for summary judgment based on its tender defense. Hialeah Diagnostic filed a cross-motion for summary judgment, seeking payment for the unpaid services rendered in the amount of $567.20. The trial court denied United Auto’s motion for summary judgment, and granted summary judgment in favor of Hialeah Diagnostic.Analysis
A tender is “an unconditional offer of payment consisting of the actual production of a sum not less than the amount due on a particular obligation . . . .” Ismark v. W.G. Mills, Inc., 899 So. 2d 1213, 1214 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D987a] (quoting 28 Williston on Contracts § 72:27, 72:29 (4th ed. 2003). “However, a tender of sums due on a date certain under a contract will stop the accrual of prejudgment interest only when the tender is absolute and unconditional.” Id. (emphasis added). A tender “more precisely is stated as an offer of payment that is coupled either with no conditions or only with conditions upon which the tendering party has a right to insist.” 28 Williston on Contracts § 72:27 (4th ed.) (citations omitted).2
In the instant case, the alleged tender was clearly ambiguous. Indeed, Hialeah Diagnostic correctly acknowledges such ambiguity in its answer. Answer Brief at 18. United Auto argues that the $567.20 check was only intended to be payment of the bills for the dates of service set forth in the accompanying EOB. Hialeah Diagnostic argues that, on the other hand, United Auto intended to make that $567.20 check full and final payment for any service to ever be provided by Hialeah Diagnostic to the insured related to the car crash at issue; or, at a minimum, that the check was ambiguous because it omitted dates of service from the payee line, which were included in later checks.
Having decided that the alleged tender was ambiguous, we must next decide the legal effect of that ambiguity. Both sides below filed cross motions for summary judgment. United Auto argued that the undisputed facts established a valid tender as a matter of law. Hialeah Diagnostic argued, on the other hand, that what United Auto did was not — as a matter of law — a valid tender. In sum, each side is arguing what they assert is their reasonable interpretation of the writings (EOB and draft) delivered by United Auto to Hialeah Diagnostic.
Florida jurisprudence recognizes that if the language of an instrument or instruments, considered together, “lends itself to more than one reasonable interpretation, it creates such an ambiguity as to preclude the entry of a summary judgment for either party.” See 49 Fla. Jur 2d Summary Judgment § 30 (2015), and numerous cases cited therein. As a result, the summary judgment entered in favor of Hialeah Diagnostic must be reversed.
On remand, as the party asserting the affirmative defense of tender, United Auto will have the burden of proving to the finder of fact, by the greater weight of the evidence, that it tendered to Hialeah Diagnostic the amounts sought in this action. Specifically, United Auto carries the burden to prove that it made an absolute and unconditional delivery to Hialeah Diagnostic of the sums due. Hialeah Diagnostic may of course present evidence tending to show that United Auto’s delivery of the funds was not “unconditional,”3 such as the evidence of later checks which contained the dates of service to which they applied. This is analogous to the situation addressed in instruction 416.18 of the Florida Standard Jury Instructions in Contract and Business Cases, regarding interpretation of disputed terms of a contract by how the parties acted before and after the disputed terms, in other words, their course of conduct.
The parties in this case each cite to the opinion in United Automobile Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So. 3d 506 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a], in support of their respective positions. In that case, the appellate court decided that second tier certiorari relief was not available, and it denied the petition. In its opinion, however, the court noted that:
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.
United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So. 3d 506, 509 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2686a](emphasis added).4 In this case, it is not at all clear from United Auto’s check and accompanying letter whether United Auto was taking the position that it was not going to be paying for any other medical bills if Hialeah Diagnostic deposited the $567.20 check.
Indeed, this case is more like an opinion not cited by either side, but distinguished by the court in Palm Chiropractic, that is, St. Mary’s Hospital, Inc. v. Schocoff, 725 So. 2d 454 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a]. In Schocoff, the trial court entered summary judgment for the insurance company on its defense of accord and satisfaction. The appellate court reversed because “there remained a genuine factual issue on the parties’ intent, an essential element of the defense . . . .” See id. at 455. The court held that the evidence in the record on appeal did not establish accord and satisfaction as a matter of law, and it remanded for the finder of fact to decide whether the insurer had carried is burden of proof on this defense. Similarly, in this case, on remand the insurer must carry its burden of proving that it was only tendering payment for the five bills at issue, and not making it a condition of such acceptance that it would not pay for any more bills for any other dates of service.
Reversed and remanded for proceedings consistent with this opinion. (JJ. MILLER AND HENDON, concurring.)
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1This appeal only involves non-payment of the five forms discussed above.
2See generally Crisp Analytical Lab, LLC v. Jakalam Properties, Ltd., 422 S.W. 3d 85 (Tex.App.-Dallas 2014); Pavlow v. Jensen, 2005 WL 3310015 (Tex.App.-Houston 2005).
3This is in keeping with Hialeah Diagnostic’s argument that United Auto was essentially requiring it to accept — as a condition of depositing the $567.20 — that it was in full and final payment for “in excess of $2,500 in medical bills . . . .” (Ans. Brief at 2).
4The opinion indicates that United Auto’s letter advised that, “based on an independent medical examination, further chiropractic treatment was not necessary and that it would not pay further benefits.” See id. at 507. Such a letter, accompanying a check with “FULL AND FINAL PAYMENT OF PIP BENEFITS” language, is pretty clear as to the insurer’s intent.
