26 Fla. L. Weekly Supp. 342a
Online Reference: FLWSUPP 2605GPERInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Where insurer sent check for partial payment of claim with explanation of benefits that made no reference to payment being tendered with intent to settle dispute or that those were terms for cashing check, genuine issue of fact regarding parties’ intent to settle precluded entry of summary judgment — Reversed and remanded
WESTCHESTER REHAB CENTER, (a/a/o Gretter Perez), Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2016-034-AP. L.T. Case No. 2014-391-SP-26. June 14, 2018. An appeal from a decision by the County Court in and for Miami-Dade County, Florida, Lawrence D. King, Judge. Counsel: Marlene S. Reiss, Marlene S. Reiss, Esq., P.A., for Appellant. Michael J. Neimand, for Appellee.
(Before VENZER, WALSH, and HERSCH, J.J.)
(HERSCH, J.) This matter comes before the Court upon Appellant’s appeal of the trial court’s Order Granting Defendant’s Final Summary Judgment Regarding Accord and Satisfaction. United Automobile Insurance Company (“Appellee”) was the insurer of Gretter Perez (“Perez”) who was injured in an automobile accident in 2009. Perez was treated for injuries related to the accident by Westchester Rehab Center. (“Appellant”). Perez assigned all rights regarding payment of her medical bills to Appellant.
Appellee submitted a bill for their services to Appellee. On May 4, 2010 Appellee sent Appellant an Explanation of Benefits Letter (“Letter”) explaining that $1,701.79 was being paid by Appellee, of the $5,733.00 billed by Appellant. The letter noted “[i]f you would like further information or wish to dispute our assessment, please do not hesitate to contact the undersigned.” The Letter included a check for $1,701.79, the check was made out to “EITE [sic] MEDICAL SERVICES, INC D/S/A WESTCHESTER REHAB A/A/O GRETTER PEREZ FOR FULL AND FINAL PAYMENT OF PIP BENEFITS FOR ALL SERVICES RENDERED.” The Appellant cashed the check and subsequently filed its Complaint against Appellee. Appellee filed an Answer and Affirmative Defenses, raising the affirmative defense of accord and satisfaction. Subsequently, Appellee filed a Motion for Final Summary Judgment Regarding Accord and Satisfaction. Appellee alleged that the check was sent as a settlement offer and that Appellant accepted and negotiated the draft, constituting accord and satisfaction. Appellee filed the affidavit of its adjuster in support of their motion. Appellant filed the affidavit of its billing clerk and records custodian in opposition, which stated that Appellant did not intend to effect a settlement. Appellant also filed a cross-motion for summary judgment. The trial court granted Appellee’s motion for summary judgment and denied Appellant’s cross-motion for summary judgment.
The standard of review used by this Court in reviewing the trial court’s granting of summary judgment is de novo. Garcia v. First Cmty. Ins. Co., 43 Fla. L. Weekly D671[a] (Fla. 3d DCA 2018) (citing Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]). “Summary judgment may be granted only where the facts are so crystallized that nothing remains but questions of law.” Vander Voort v. Universal Prop. & Cas. Ins. Co., 127 So. 3d 536, 538 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2544a]. In this case, because there remain genuine factual issues, including the parties’ intent to settle, which is an essential element of the defense of accord and satisfaction, we reverse. See St. Mary’s Hosp., Inc. v. Schocoff, 725 So. 2d 454, 455 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a]. The Explanation of Benefits letter that accompanied the check made no reference to the payment being made with the intent to settle a dispute or that those were the terms for cashing it. The issue of whether parties have reached an accord and satisfaction is generally a question of fact and it does not appear on the record before this Court that the parties entered into an accord and satisfaction as a matter of law. See Myers v. Miller, 581 So. 2d 904, 905 (Fla. 2d DCA 1991). “An accord and satisfaction results as a matter of law only when the creditor accepts payment tendered on the expressed condition that its receipt is deemed to be a complete satisfaction of a disputed issue.” St. Mary’s Hosp., Inc., 725 So. 2d at 456. That is not present in this case.
Therefore, the trial court’s decision is REVERSED and this matter is REMANDED. Accordingly, Appellee’s Motion for Attorney’s Fees is DENIED. Appellant’s Motion for Attorney’s fees is conditionally granted, conditioned upon a successful outcome in the trial court case. (VENZER and WALSH, J.J. concur.)
