24 Fla. L. Weekly Supp. 701b
Online Reference: FLWSUPP 2409ALFOInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Language on PIP benefits check stating that it was “full and final” satisfaction of claim did not effectuate statutory accord and satisfaction where text was contained in “Pay to Order” line of check in same size, style and color as surrounding text — Common law accord and satisfaction was not effectuated where insurer believed that it was paying full amount of its obligation when it tendered check, and there was no mutual intent to effect settlement of a dispute — No merit to insurer’s argument that it is entitled to jury trial on issue of common law accord and satisfaction — Provider’s motion for summary judgment on affirmative defense is granted
MILLENNIUM RADIOLOGY, LLC, d/b/a MILLENNIUM OPEN MRI, a/a/o Daniela Alfonzo, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-14790SP23(04). September 20, 2016. Jason Emilios Dimitris, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDING DEFENDANT’SAFFIRMATIVE DEFENSE OF ACCORD ANDSATISFACTION AND DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENTRE: ACCORD AND SATISFACTION
On January 22, 2016, this Court heard competing Motions for Summary Judgment on the issue of Defendant’s Affirmative Defense of Accord and Satisfaction. Specifically Plaintiff’s January 19, 2016 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. 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 and being otherwise advised in the premises, finds that there are no material issues of fact in dispute and GRANTS Plaintiff’s Motion for Summary Judgment and DENIES Defendant’s Motion for Final Summary Judgment Re: Accord and Satisfaction.
FACTS
On March 10, 2010, Plaintiff, MILLENIUM RADIOLOGY LLC, provided a lumbar MRI to Daniela Alfonzo for injuries related to her December 9, 2009 Motor Vehicle Accident. Pursuant to an assignment of benefits, Plaintiff billed Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, $2,150.00 for the MRI provided to its insured, Daniela Alfonzo. Accompanying the submission was an Assignment of benefits which provided the following with regard to “Disputes:”
Disputes: The insurer is directed by the provider and the insured not to issue any checks or drafts in partial settlement of a claim that contain or are accompanied by language releasing the insurer or its insured/patient from liability unless there has been a prior written settlement agreed to by the health provider (specifically the office manager) and the insurer as to the amount payable under the insurance policy. The insured and the provider hereby contests and objects to any reductions or partial payments Any partial or reduced payment, regardless of the accompanying language, issued by the insurer and deposited by the provider shall be done so under protest, at the risk of the insurer, and the deposit shall not be deemed a waiver, accord, satisfaction, discharge, settlement or agreement by the provider to accept a reduced amount as payment in full. The insurer is hereby placed on notice that this provider reserves the right to seek the full amount of the bills submitted. . . . Any effort by the insurer to pay a disputed debt as full satisfaction must be mailed to the address above, after speaking with the office manager, and mailed to the attention of the Office Manager. See Fla. Stat. §673.3111.
In response, Defendant provided an Explanation of Review (“EOR”) reflecting an allowed amount of $1,154.98 for the MRI, a check for PIP benefits in the amount of $923.98, and a check for PIP interest in the amount of $6.68 (did not contain “full/final” reference). The “Pay to the Order” line of the check for PIP benefits contained the following text:
MILLENNIUM RADIOLOGY LLC
A/A/O DANIELA ALFONZO DOS: 3/10/10 FULL AND FINAL
PIP BENEFIT PAYMENT OFR DOL:12/9/09
The text with the words “full and final” is contained in the body of the check following the heading PAY TO THE ORDER OF and is single spaced exactly as printed above. The reference to “Full and Final” is not written in a contrasting color compared with the surrounding test, not in bold text compared to the surrounding text, and the font is not identical to the words preceding and following it.
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.
It is undisputed that the EOR language and amount paid are not different from any other EORs Plaintiff has routinely received from Defendant and which Defendant routinely sends out to medical providers, except for any specific patient information. This Court notes that the Defendant’s EOR that was mailed with the check makes no mention of any dispute, 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. Defendant paid all that they believed they owed and that they did not believe the Plaintiff was compromising the amount to which it was entitled or that they were paying anything less than what they owed. Simply stated, Plaintiff submitted a bill and Defendant had approved an amount to 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. Defendant did not notify the Plaintiff of any dispute before or after the payment. Moreover, Defendant ignored the specific settlement procedures that Plaintiff had demanded prior to Defendant making payment. Finally, Defendant did not mail the payment to the “Attention of the Office Manager.”
Plaintiff cashed the check, and thereafter, submitted a Demand Letter for the additional sums owed. In its response to the Demand Letter the Defendant did not claim “accord and satisfaction” or that it considered to the claim “settled.” To the contrary it advised the opposite:
“UAIC” hereby advises that it does not, either by sending this letter or processing this claim 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.
Thereafter plaintiff 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 Explanation of Review, and another check without full and final language constitutes an accord and satisfaction as a matter of law.
ANALYSIS OF STATUTORY ACCORDAND 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, 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 isolation, 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. In fact it is in the exact size and type font as the surrounding body of text. There is nothing in the surrounding text, symbols, or other marks that would call attention to the language. Further, the EOR does not contain any statement to the effect that the payment was made in full satisfaction of the claim or even begin to suggest that there is any dispute that this payment seeks to resolve. 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 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.
ANAYLYSIS OF COMMON LAWACCORD AND SATISFACTION
An affirmative defense of accord and satisfaction requires: (1) proof of a preexisting dispute as to the nature and extent of the obligation between the parties; (2) their mutual intent to effect settlement of that dispute by a superseding agreement; and, (3) the obligor’s subsequent tender and obligee’s acceptance of performance of a 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].
In this case, the indisputable evidence presented demonstrates Defendant communicated no dispute prior to sending the check. Further, prior to the issuance of the check there were no conversations or correspondence by the Defendant advising the Plaintiff that the payment was intended as a compromise or settlement of the Plaintiff’s claim. Defendant argued at the hearing that 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 vs. Union Bankers Ins. Co., 627 So. 2d 535 (Fla. 3d DCA, 1993); St. Mary’s supra. Here, the facts indicate and the Court finds that the Defendant believed that it was paying the full amount of its obligation and it did not believe that the amount paid was a compromise of what Defendant owed or to what Plaintiff was otherwise entitled. In short, the Court finds there was no mutual intent to effect a settlement of a dispute.
Following the Court announcing its ruling in open court, Defendant moved for reconsideration based upon the holding in United Auto v. Brian Silver D.C. P.A. a/a/o Christina Rodriguez 20 Fla. L. Weekly Supp. 491a (11th Cir. App. March 4th, 2013). Defendant argued that this case entitled it to a jury trial on the issue of common law accord and satisfaction. The Court disagrees and finds that the Silver case is distinguishable from the facts of this Case. See Millennium Radiology LLC a/a/o Ronica Nix vs. United Auto 23 Fla. L. Weekly Supp. 605a. (Dade Cty. Ct. August 34rd, 2015)(J. Schwartz).
Therefore, based upon the undisputed facts, and the law, the Plaintiff is entitled to summary judgment regarding Defendant’s defense of Accord and Satisfaction. 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 is DENIED.
