20 Fla. L. Weekly Supp. 438a
Online Reference: FLWSUPP 2004BUREInsurance — Personal injury protection — Accord and satisfaction — Explanation of Review combined with check containing, among other language, the phrase “Full and Final Payment of PIP Benefits” in the “Pay to the Order” line did not constitute accord and satisfaction — Insurer cannot simultaneously assert common law and statutory accord and satisfaction defenses — Accordingly, common law defense must yield to statute — Insurer failed to establish requisite elements of statutory accord and satisfaction where presented no evidence that it made a “good faith” tender when it calculated claim by applying fee schedule reductions, although policy required payment of 80% of all medically necessary expenses — Further, evidence did not show that plaintiff’s claim was unliquidated, as required for statutory accord and satisfaction, and insurer offered no evidence of a “bona fide” dispute existing between the parties — Finally, insurer provided no evidence that payment tendered contained a conspicuous statement, as required by statute — Court notes, that while moot, disputed issues of material fact exist that would also preclude finding of common law accord and satisfaction as a matter of law — Defendant’s motion for summary judgment based on accord and satisfaction denied
