24 Fla. L. Weekly Supp. 82a
Online Reference: FLWSUPP 2401FUENInsurance — 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 contained conspicuous statement that check was tendered as full satisfaction of claim — Insurer’s defense of common law accord and satisfaction fails where there is no evidence that there was pre-existing dispute between parties before issuance of payment
OAKLAND PARK MRI, INC., d/b/a DPI OF FORT LAUDERDALE, (a/a/o Niurka Fuentes), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-12484(52). July 28, 2015. Giuseppina Miranda, Judge.
ORDER ON COMPETING MOTIONS FORSUMMARY JUDGMENT ON THE ISSUE OFACCORD AND STATISFACTION
THIS CAUSE came before the Court for hearing of the Plaintiff’s Motion for Final Summary Judgment and Motion for Sanctions Pursuant to Fla. Stat. §57.105 dated July 31, 2014 and the Defendant’s Motion for Summary Judgment dated July 30, 2014. The single issue relevant to this Court’s ruling is Defendant’s Affirmative Defense of Accord and Satisfaction.
The Defendant argues that it has met the requirements of common law Accord and Satisfaction and that it has complied with the statutory requirements of Accord and Satisfaction pursuant to Fla. Stat. §673.3111.
The Court having reviewed the Motions and supporting affidavits and deposition testimony; the entire Court file; the relevant legal authorities; and having heard argument; and having been sufficiently advised in the premises, the Court FINDS as follows:
1. The check in question reads, in pertinent part, as follows:
Pay to the Order Of:
OAKLAND PARK OPEN MRI f/a/o Niurka Fuentes Amador acc#170341as full & final payment of PIP benefits
The wording on the check is single spaced exactly as printed above. The reference to “full & final payment” is not written in bold and the font is not different. The words are written in lower case letters and do not stand out from any of the other words contained in the caption. It is also squeezed into the space on the check is that normally only contains the name of the payee.
2. The Explanation of Review (which accompanied the check) contained the follow statement on the second page of a two page document (in fine print):
“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 right and defenses are specifically reserved.”
There is no reference to “full and final payment” contained anywhere within the Explanation of Review.
3. Fla. Stat. §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 as full satisfaction of the claim. (emphasis added).
4. Fla. Stat §671.201(10) provides the Court with the necessary guidance to determine if the wording on the check in question rises to the level of statutory Accord and Satisfaction. “Conspicuous” is defined 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.
5. Based on a review of the check and the Explanation of Benefits, the Court finds that Defendant’s Affirmative Defense of Accord and Satisfaction does not comply with Fla. Stat. §673.3111 because the instrument or an accompanying written communication did not contained a conspicuous statement to the effect that the instrument tendered as full satisfaction of the claim.
6. Defendant’s claim of common law Accord and Satisfaction also fails for the following reasons.
7. “An 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.” See Best American Diagnostic Center, Inc., v. United Automobile Insurance Company, 20 Fla. L. Weekly Supp. 447a (January 4, 2013) affirmed 22 Fla. L. Weekly Supp. 210c (October 4, 2014) citing St. Mary’s Hospital, Inc., v. Schocoff, 725 So.2d 454 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a].
8. Plaintiff filed the deposition of Defendant’s corporate representative to establish that no preexisting dispute existed.
See specifically:
Page 12, lines 5 and 6: Q. “When was the bill received?” A. “On October 30, 2009.”
Page 15, lines 21 and 22: The Witness: “No. Payment was issued prior to the demand.”
Page 17, lines 7 through 22: Q: “Does your filed reflect whether there was any communication between United Automobile and anyone at Oakland Park Prior to issuing payment in response to their October 23rd, 2009 bill?” A. “No.” Q. “Prior to issuing payment for the October 23rd 2009 date of service, does your file reflect whether there was any type of negotiation that took place between United Automobile and Oakland Park MRI for their bill? A. “There are no notes within the file which reflect any communication with Oakland Park MRI. There are no documents in the file apart from the explanation of review and a copy of the draft statement that was sent to Oakland Park MRI that reflect any communication with Oakland Park MRI.”
page 20, lines 10 and 11: The Witness: “We did not know that there was a dispute. . .It wasn’t until three years later. . .that we were aware of any dispute.”
page 24, line 6: A. “. . .there was no contact with Oakland Park MRI.”
Defendant must then set forth evidence that there was a preexisting dispute in order to defeat summary judgment. Defendant’s deposition testimony and affidavit fail to create a genuine issue of material fact sufficient as to whether there was a preexisting dispute between the parties to effect an accord and satisfaction.
Accordingly, it is hereby ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED. The Court reserves as to the motion for sanctions.
Due to the reference in Plaintiff’s Motion that there are no other issues in dispute and the Defendant’s comment on page 15, line 25 and page 16, line 1 of the deposition that “we are not contesting reasonableness”, the parties shall inform the Court if this Court’s ruling disposes of this matter.
