24 Fla. L. Weekly Supp. 74a
Online Reference: FLWSUPP 2401GONZInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Insurer has not complied with statutory requirements for accord and satisfaction where neither check nor accompanying explanation of review and cover letter contained conspicuous statement that check was tendered as full satisfaction of claim — Insurer’s defense of common law accord and satisfaction fails where there was no pre-existing dispute between parties before payment and no indication that payment was intended as compromise or settlement of claim
COASTAL RADIOLOGY LLC., (JORGE GONZALEZ), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-02421 SP 23 (04). February 25, 2016. Jason Emilios Dimitris, Judge. Counsel: Rowena Racca, Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Rashad El-Amin, United Automobile Insurance Company, Miami, for Defendant.
PROPOSED ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT REGARDINGDEFENDANT’S AFFIRMATIVE DEFENSE OF ACCORDAND SATISFACTION AND DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT RE:ACCORD AND SATISFACTION ANDREQUEST FOR 57.105 SANCTIONS
On Tuesday, January 26, 2016, this Court heard Plaintiff’s Motion for Summary Judgment Regarding Defendant’s Affirmative Defense of Accord and Satisfaction and Memorandum of Law and Defendant’s Motion for Final Summary Judgment Re: Accord and Satisfaction and Request for 57.105 Sanctions. The Court having heard and considered the argument of counsel, having reviewed the above-referenced motions and Memorandum of Law (and attachments thereto), deposition transcript, affidavits, legal authority provided by the parties, this Court GRANTS Plaintiff’s Motion for Summary Judgment and DENIES Defendant’s Motion for Final Summary Judgment Re: Accord and Satisfaction and Request for 57.105 Sanctions for the reasons set forth below.
Factual Background
On April 27, 2011, Plaintiff, COASTAL RADIOLOGY, LLC, provided a Lumbar MRI to Jorge Gonzalez for injuries sustained in a motor vehicle accident on January 1, 2011. Pursuant to an assignment of benefits, Plaintiff billed Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, $2,180.00 for the MRI provided to its insured, Jorge Gonzalez. In response, Defendant mailed the following (1) a cover letter, (2) an Explanation of Review (“EOR”) reflecting an allowed amount of $1,226.60 for the MRI, (3) a check for PIP benefits in the amount of $981.28, and (4) a check for PIP interest in the amount of $7.26 (did not contain “full/final” reference). The “Pay to the Order” line of the check for PIP benefits contained the following text:
COASTAL RADIOLOGY
F/A/O JORGE GONZALEZ
for Full and Final PIP Benefits for Bill ID 7777-H-141325
The text on the PIP check is single-spaced exactly as printed above. The reference to “Full and Final” is not written in a contrasting color, not in bold text, and the font is not different. The cover letter contained the following statement in relevant parts:
Having notified you of our ongoing claims investigation, the enclosed draft(s) are hereby tendered as advanced consideration for unverified treatments. Any payment for medical treatment that is excessive, unrelated, unreasonable, unnecessary or unlawful is an unintended overpayment and expressly disputed. Any such disputed overpayment is not intended to be gratuitous in nature and subject to reimbursement.
“UAIC” hereby advises that it does not, either by sending this letter or processing this payment advance at this time, waive any existing rights or defenses, including rights or defenses discovered during future review, investigation or discovery. Any and all such rights and defenses are specifically reserved; including, but not limited to claims for reimbursement and any defenses listed below, including our enclosures.
The second page of the EOR contained the following statement in relevant parts:
Unless otherwise noted, all reductions are due to guidelines indicated in Senate Bill SB 1092.
Kindly notify us in writing within 5 days of any dispute or we will assume that our response is satisfactory. Nothing in this letter waives any rights or defenses under the policy or law. All such rights and defenses are specifically reserved.
Defendant’s adjuster testified that the subject cover letter and EOR are not different from any other cover letters or EORs Defendant routinely sends out to medical providers, except for any specific patient information and/or defenses that may be added on the bottom of the cover letter. This Court notes that the Defendant’s cover letter and EOR that were mailed with the check make no mention of any full and final language nor that benefits had been withdrawn, suspended or capped. It also does not provide any information regarding the Defendant’s reimbursement obligation under the policy. The EOR merely contained the unilateral and cryptic pronouncement that “all reductions are due to guidelines indicated in Senate Bill SB 1092.” It does not state whether Defendant was offering to pay a lesser amount than the policy promises to reimburse. Basically, Plaintiff submitted a bill and Defendant had approved an amount that they thought should be paid which is an amount equal to the fee schedule amount set forth in Fla. Stat. §627.736(5)(a)(2). Defendant did not contact the Plaintiff prior to making the payment. Plaintiff cashed the check, and thereafter, filed suit for breach of contract seeking the difference between the amount paid by the Defendant and 80% of the Plaintiff’s bill. As an affirmative defense, Defendant asserted accord and satisfaction, both under statutory and common law.
Issue
The issue to be decided by this Court is whether the check containing the language “Full and Final” in the “Pay to the Order” line accompanied by Defendant’s cover letter, Explanation of Review, and another check without full and final language constitutes an accord and satisfaction as a matter of law.
Analysis of Statutory Accord and Satisfaction
Florida Statute Section 673.3111(2), reads in pertinent part, “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 in full satisfaction of the claim.” (emphasis added). Thus, in order to demonstrate an accord and satisfaction pursuant to Fla. Stat. §673.3111(2), Defendant must prove that the check and accompanying documents 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 whom 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 in a size equal to or larger than that of the surrounding text or in a type, font, or color in contrast to the surrounding text of the same or lesser size; and
(b) Language in the body of a record or display in a type larger than that of the surrounding text; in a type, font, or color in contrast to the surrounding text of the same size; or set off from the 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. See Fla. Stat. § 627.201(10). Further, conspicuousness is judged by the relationship of the text 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). Applying the factors in the statute, this Court finds that the language “Full and Final,” taken not in isolated sense but in relation to the whole of the instrument, is not conspicuous. See Rudy’s Glass Construction Co. v. E.F. Johnson Co., 404 So.2d 1087, 1089-90 (Fla. 3rd DCA 1981). The text contained in the “pay to the order line” is not larger in size than the surrounding text, and is not in contrasting type, font or color. There is nothing in the surrounding text, symbols, or other marks that would call attention to the language. Further, the cover letter and the EOR do not contain any statement to the effect that the payment was made in full satisfaction of the claim. Based on a careful review of the check and the accompanying documents, this Court finds that the “Full and Final” language on the check is not a conspicuous statement sufficient to provide notice that the instrument delivered was in full satisfaction of the claim.
This Court is also persuaded by the orders entered by other trial courts in finding specifically that a similar text on a check is not conspicuous as a matter of law. See Millennium Radiology, LLC v. United Auto Ins Co., Case No. 12-20434 SP 23 (02) (Miami-Dade Cty. Ct., Judge Schwartz, August 3, 2015) [23 Fla. L. Weekly Supp. 605a]; Doctor Rehab Center, Inc. v. United Auto Ins. Co., Case No. 11-1888 SP 26 (03) (Miami-Dade Cty. Ct., Judge Gonzalez-Paulson, January 9, 2013); New Medical Group v. United Auto Ins. Co., Case No. 11-00131 SP 26 (04) (Miami-Dade Cty. Ct., Judge King, August 31, 2015); Best American Diagnostic Ctr. v. United Auto Ins. Co., 21 Fla. L. Weekly Supp. 270c (11th Cir. Cty. 2013); Best American Diagnostic Ctr. v. United Auto Ins. Co., 20 Fla. L. Weekly Supp. 163b (11th Cir. Cty. 2012); Complete Rehab and Medical Centers of Plantation, Inc. v. United Auto Ins. Co., 16 Fla. L. Weekly Supp. 1171a (17th Cir. Cty. 2009); Dr. Alan R. Freedman v. United Auto Ins. Co., 22 Fla. L. Weekly Supp. 397a (17th Cir. Cty. 2014). Thus, this Court finds that the “Full and Final” language on Defendant’s check did not effectuate a statutory accord and satisfaction of the Plaintiff’s claim.
Analysis of Common Law Accord and Satisfaction
An affirmative defense of accord and satisfaction results only when the creditor accepts payment tendered on the express condition that its receipt is deemed to be a complete satisfaction of a disputed issue. St. Mary’s Hospital, Inc., v. Schocoff, 725 So.2d 454 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a].
In this case, the undisputed evidence presented was that the Plaintiff billed the Defendant and the Defendant made a payment towards the bill. There was no dispute communicated by the Defendant to the Plaintiff prior to making the payment. Further, prior to the issuance of the check there were no conversations or correspondences with the Defendant advising the Plaintiff that the payment was intended as a compromise or settlement of the Plaintiff’s claim. The cover letter and the EOR that accompanied the payment did not mention that the cashing of the check would result in settlement, accord and satisfaction, or complete satisfaction of the claim. In fact, the cover letter clearly stated that the investigation of the claim was still ongoing, and the payment was not intended to be final but it is an “advance consideration” and “subject to reimbursement.” Thus, this Court finds that the Defendant’s “Full and Final” language on the check without any reference to the language on the accompanying letter and EOR does not effectuate a common law accord and satisfaction.
Therefore, based upon the undisputed facts, the Plaintiff is entitled to summary judgment regarding Defendant’s 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.
