24 Fla. L. Weekly Supp. 841c
Online Reference: FLWSUPP 2410NUNEInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Insurer’s check for reduced payment of bill with notation that it was for full and final PIP benefits did not effect common law accord and satisfaction where there was no communication between medical provider and insurer indicating existence of dispute or that payment was made as offer to settle — Insurer cannot create accord and satisfaction by tendering amount it contends will fully satisfy its obligation — Statutory accord and satisfaction was not effected where evidence does not establish that check was good faith offer; there is no evidence that dispute existed prior to payment; and markings on check in same size as surrounding text and not distinguished by contrasting type, font or color did not amount to a conspicuous statement
BEST AMERICAN DIAGNOSTIC CENTER, INC. (Tomas Nunez), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-27617 SP 23. January 15, 2017. Diana Vizcaino, Judge.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR FINAL SUMMARYJUDGMENT AS TO AFFIRMATIVE DEFENSEOF ACCORD AND SATISFACTION
THIS CAUSE came before the Court for hearing on Plaintiff’s Motion for Summary Judgment as to Defendant’s Affirmative Defense of Accord and Satisfaction and the Defendant’s cross motion for Summary Judgment regarding same. The Court having considered the motions, heard argument of all counsel, reviewed applicable legal authority, and being otherwise fully advised, finds as follows:
FACTUAL AND PROCEDURAL BACKGROUND
This is an action for personal injury protection (PIP) benefits under an automobile insurance policy issued by the Defendant, for medical services rendered to Tomas Nunez, arising out of an automobile accident on May 6, 2011. Plaintiff submitted its bills to Defendant for services rendered to Mr. Nunez for a total amount of $1,750.00. Defendant submitted a check in the amount of $981.28 which included the language: “for Full and Final PIP Benefits for Bill ID 7777-H-153659” contained in the “Pay to the Order Of” section of the check. Plaintiff then instituted the instant action seeking damages for unpaid benefits. The Defendant has filed an answer raising the following sole affirmative defense:
“Defendant states that Plaintiff has received and cashed the monies of Defendant presented by Defendant in full and final satisfaction of the claims at issue. Plaintiff is therefore barred from bringing or maintaining the present cause of action under the doctrine of accord and satisfaction. Specifically, as and for its First Affirmative Defense Defendant states that Plaintiff has received negotiable instrument(s)/check(s) sent by the Defendant, in good faith, to Plaintiff. The negotiable instrument(s)/check(s) sent by Defendant to Plaintiff contained a conspicuous statement to the effect that the negotiable instrument(s)/check(s) were presented as full and final satisfaction of Plaintiff’s entire claim. At the time the negotiable instrument(s)/check(s) were received by Plaintiff, Plaintiff’s claim against Defendant was the subject of a bona fide dispute. Moreover, the negotiable instrument(s)/check(s) were received by the person designated by Plaintiff for receipt of same. Plaintiff then negotiated/cashed the negotiable instrument(s)/check(s) and never tendered repayment. Plaintiff and Defendant thereby intended to and did effectuate resolution of a bona fide dispute via (1) Defendant’s act of presenting the negotiable instrument(s)/check(s) with conspicuous language as to their effect and (2) Plaintiff’s act of cashing and retaining the negotiable instrument(s)/check(s) with conspicuous language as to their effect. These events and actions establish Accord and Satisfaction via either statute or common law and Plaintiff is therefore forever barred from bringing or maintaining the present cause of action pursuant to the legal doctrine of Accord and Satisfaction.”
Both parties seek summary judgment under common law accord and satisfaction and under §673.3111, Florida Statutes. Therefore, the issue before the Court is whether Defendant’s Explanation of Review (EOR) and check with the language “for Full and Final PIP Benefits” in the “Pay to the Order of” line, submitted to and cashed by Plaintiff constitutes accord and satisfaction.
SUMMARY JUDGMENT STANDARD
In a motion for summary judgment the movant must demonstrate that no genuine issue exists as to any material fact, and the Court must draw every possible inference in favor of the party opposing summary judgment. Bowman v. Barker, 172 So.3d 1013 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2091b]; citing Moore v. Morris, 475 So.2d 666 (Fla. 1985). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. The burden is on the movant to demonstrate conclusively that the non-movant cannot prevail. It is an exacting test, for if the record reflects the existence of any genuine 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. Bellamy v. Ameri Pride Inc., 157 So.3d 1053 (Fla. 2nd DCA 2014) [39 Fla. L. Weekly D1206a]. In order to grant a summary judgment motion, the trial court must find by competent evidence that no genuine issue of material fact is in dispute and, thus, the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510.
ANALYSISCOMMON LAW ACCORD AND SATISFACTION
The affirmative defense of accord and satisfaction requires proof of a (1) pre-existing dispute as to the nature and extent of an obligation between the parties; (2) their mutual intent to effectuate settlement of that dispute by a superseding agreement; and (3) the obligor’s subsequent tender and the obliges acceptance of performance of the new agreement in full satisfaction and discharge of the prior disputed obligation. St. Mary’s Hospital, Inc. v. Schocoff, 725 So.2d 454 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a]. 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. Martinez v. South Bayshore Tower LLLP, 979 So.2d 1023 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D655a].
Based on the evidence presented, the Court finds there was no communication between the parties, other than the tender of the check, which would have indicated monies owed to the Plaintiff or a mutual intent to effect a settlement of an existing dispute. Plaintiff was acting in its normal course of business by submitting charges to the Defendant. The submission of the charges does not create a dispute nor does the payment of these charges. Additionally, the Court finds the Explanation of Review submitted by the Defendant did not communicate the existence of a dispute, or that the payment was made as an offer to settle or compromise. An insured cannot create accord and satisfaction by making a payment in the amount it contends will fully satisfy its obligation. See Pino v. Union Bankers Insurance Company, 627 So.3d 535 (Fla. 3rd DCA 1993). Therefore, Defendant cannot create a dispute, where none exists by the tendering of a check in an amount less than what the Plaintiff demands.
STATUTORY ACCORD AND SATISFACTION
Florida Statute §673.3111 provides in pertinent part:
(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.
In order to invoke the defense of accord and satisfaction under Florida Statute §673.3111, 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.
The only evidence presented to the Court to establish a “good faith tender” was the affidavit of John A. O’Hara, the litigation adjuster for Defendant. “Good faith” is defined in the notes of §673.3111(1), as “not only honesty in fact, but the observance of reasonable commercial standards of fair dealing.”
Mr. O’Hara was only able to testify as the records custodian of the file. With regard to the payment of the medical bills in this matter, he stated in affidavit form:
“7. On or about July 11, 2011, United Auto provided Best American Diagnostic Center with an explanation of review of it bill and $981.28 in PIP benefits. The draft read: BEST AMERICAN REHAB. CENTER, INC. F/A/O TOMAS NUNEZ for Full & Final PIP Benefits for Bill ID 7777-H-153659.”
Mr. O’Hara offers no explanation as to how the $981.28 figure was reached, and the EOR submitted by the Defendant merely stated that “all reductions are due to guidelines indicated in Senate Bill SB 1092”. No testimony was offered to the Court to explain the Defendant’s decision to make such a reduction. The evidence submitted by the Defendant simply does not establish whether the tendered check constitutes a good faith offer by Defendant as full satisfaction of Plaintiff’s claim.
Second, the Court looks to whether a bona fide dispute existed between the parties. As noted above, the record evidence presented to the Court establishes that prior to Defendant’s issuance of the check, there was no communication between the parties with regard to the bill. The EOR did not communicate the existence of a dispute, or that the payment was made as an offer to compromise or settle. There was no negotiation, defenses raised, or contact between the parties prior to the issuance of the check.
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. 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). Based on the record evidence submitted, the Court finds there was no bona fide dispute.
Lastly, the Court considers whether the markings on the check are a conspicuous statement pursuant to §627.3111, Florida Statutes. The term “conspicuous” is defined by §671.201(10) 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 to the effect that the instrument is tendered as full and final satisfaction of the claim” is a question of law. Conspicuousness is judged by the relationship of the “warning” to the color, size, and type of the print surrounding it. O’Connell v. Norwegian Caribbean Lines, Inc., 639 F. Supp 846 (ND, Ill., 1986). 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).
In the instant case the purported “conspicuous” language in the check tendered by the Defendant does not comply with the statute, and does not support to a defense of accord and satisfaction as a matter of law. 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. The term conspicuous has been defined as “1: obvious to the eye or mind: plainly visible. . . 2: attracting or tending to attract attention by reason of size, brilliance, contrast, station.” See Gonzalez v. Associates Life Ins. Co., 641 So.2d 895 (Fla. 3d DCA 1994). The Court finds that the language at issue here is not conspicuous
CONCLUSION
The Court finds the elements defined in both common law and statutory accord and satisfaction have not been met. Based on the foregoing, it is hereby:
ORDERED and ADJUDGED:
Plaintiff’ 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 is DENIED.
