24 Fla. L. Weekly Supp. 177a

Online Reference: FLWSUPP 2402DORInsurance — Personal injury protection — Affirmative defenses — Medical provider’s agreement to waive right to be paid by claimant for unpaid balance of medical bills did not waive its right to be paid by, or to sue, insurer that was not party to agreement or effect accord and satisfaction of dispute between provider and insurer

PLANTATION OPEN MRI, LLC, a/a/o James Dor, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-014200, Division 54. August 28, 2015. Stephen J. Zaccor, Judge. Counsel: Matthew W. Emanuel, Todd Landau, P.A., Hallandale Beach, for Plaintiff. Marni Rogalsky, Dutton Law Group, P.A., Tampa, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND GRANTING THEPLAINTIFF’S CROSS-MOTION FORSUMMARY JUDGMENT AS TO THE DEFENDANT’STHIRD AFFIRMATIVE DEFENSE OF WAIVERAND ACCORD/SATISFACTION

This cause came before the court on August19, 2015 on Defendant’s Motion for Summary Judgment and the Plaintiff’s Cross-Motion for Summary Judgment as to the Defendant’s Third Affirmative Defense of Waiver and Accord and Satisfaction. After reviewing the pleadings, the record, the relevant legal authority, and after hearing argument of counsel, the court finds no issue of material fact and hereby grants Summary Judgment in favor of the Plaintiff as to the Defendant’s third affirmative defense.

ANALYSIS AND FINDINGS OF FACT

Both parties agree there are no factual disputes. “When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla. 1952).

Plantation Open MRI, LLC (hereinafter the Plaintiff), as an Assignee of James Dor (hereinafter the Claimant), sued State Farm Mutual Automobile Insurance Company (hereinafter the Defendant) for breach of a contract of personal injury protection benefits under the Florida’s No Fault law. The Defendant’s policy required the Defendant to pay 80% of all reasonable expenses and the claimant to pay the remaining 20%. The Plaintiff billed $1,850 for the MRI in question. The Defendant received the bill, paid it based on 200% of the Participating Level of Medicare Part B, and not 80% of the billed amount. The amount rendered by the Defendant was not accepted as payment in full by the Plaintiff who, after serving a demand letter on April 1, 2012, sued the Defendant for breach of contract for the balance on July 12, 2012.

On May 23 2012, after the demand letter was sent but before suit was filed, the Claimant’s attorney sent a letter to the Plaintiff which read in pertinent part:

Dear Sir/Madam

It is my understanding that your outstanding balance for the above-referenced patient is $567.26.¹ We are having great difficulty obtaining a fair settlement for our client’s bodily injury claim and would request that you consider waiving the sum of $567.26 on this account, in order to assist us in obtaining a fair settlement on behalf of our client. . .

The Plaintiff agreed to waive the Claimant’s balance by signing the above letter and returning it to the attorney.

The Defendant’s third affirmative defense alleges:

THIRD AFFIRMATIVE DEFENSE

Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, states that Plaintiff is not entitled to an award of Personal Injury Protection (PIP) benefits because Plaintiff entered into a superseding agreement with the Assignor’s attorney that effectively extinguished any dispute regarding the medical bill at issue and discharged any further payment obligation by Defendant for said bill. Specifically, on May 24, 2012, Plaintiff executed a document (dated May 23, 2012) finished by the Assignor’s attorney, in which it agreed to waive the outstanding balance on the Assignor’s account and/or agreed to accept the monies already received by Defendant on the outstanding balance of the Assignor’s account as full and final payment for same. Likewise, the Explanation of Benefits (EOB) form that accompanied payment of the bill in question clearly shows that the amount paid differed from the amount billed. Nevertheless, Plaintiff accepted and deposited payment, and held said monies for a period of more than ninety (90) days. As such, based on the foregoing grounds, there has been an accord and satisfaction of the medical bill at issue and Plaintiff waived its right to sue upon the medical bill at issue, which again, is evidenced by Plaintiff’s execution of the aforementioned document (dated May 23, 2012).

The Defendant maintains that the Plaintiff waived its right to collect any sums due and owing from the Defendant because it waived the Claimant’s balance and due to an accord and satisfaction.

WAIVER

The elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right.” Zurstrassen v. Stonier, 786 So. 2d 65, 70 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1275a]; quoting Leonardo v. State Farm Fire & Cas. Co., 675 So.2d 176, 178 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1165a]. The Plaintiff’s rights originate from the assignment from the Claimant, which provides:

I, the undersigned patient/insured knowingly, voluntarily and intentionally assign the rights and benefits of my health insurance and automobile insurance, also known as Personal Injury (P.I.P.) and Medical Payment policy of Insurance to the above health care provider. I understand it is the intention of the provider to accept this assignment of benefits in lieu of demanding payment at the time services (sic) are rendered and that this document will allow the provider to file suit against an insurance company for payment of the insurance benefits.

I agree to pay any applicable deductible, co-payments, for services rendered after the policy of insurance exhausts, and for any other services unrelated to the automobile accident.

Pursuant the assignment, the Plaintiff had the right to obtain payment directly from the Defendant in an amount equal to 80% of a reasonable charge for the services rendered. The Plaintiff clearly had knowledge of that right as documented by the assignment. Whether or not he intended to relinquish that right depends on the letter from the claimant’s attorney.

The letter became a binding agreement between the Plaintiff and the Claimant once it was executed. The Defendant is not a party to that agreement. The Plaintiff clearly intended to relinquish the right to be paid by the Claimant. Therefore, the elements of waiver are met as to the Claimant’s balance. As the Defendant was not a party to the agreement, the Plaintiff did not have the intent to relinquish the right to be paid directly by, or sue, the Defendant. Therefore, the elements of waiver cannot be established by the Defendant.ACCORD AND SATISFACTION

“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. S. Bayshore Tower, L.L.L.P., 979 So. 2d 1023, 1024 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D655a]. The letter waiving the Claimant’s balance was between the Clamant and the Plaintiff. The Plaintiff and the Defendant never entered into a superseding agreement, therefore the first element is not satisfied and there is no accord and satisfaction.

Accordingly, the Defendant’s Motion for Summary Judgment is hereby DENIED, and the Plaintiff’s Cross-Motion for Summary Judgment as the third affirmative defense is GRANTED.

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¹$567.26 represents the balance after 20%, or $370, (the Claimant’s responsibility) is subtracted from $912.74 (the amount the Plaintiff claims the Defendant owes).