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TO FILE REHEARING MOTION,
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1N THE CIRCUIT COURT OF THE
THE ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR MIAMI-DADE COUNTY,
FLORIDA
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CASE NUMBER I0 437 AP ll 020 AP
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Lower Case N0.: 08-17040 SP 23 ~.
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BRIAN M. SILVER, D.C., P.A.
a/a/0 CHRISTINA RODRIGUEZ,
Appellee.
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HEARING ON: October 24, 2012.
Opinion filed}/lfidla ‘@020/&
On Appeal from the County Count for Miami-Dado County, Florida, Caryn Schwartz, Judge.
Thomas L. Hunker, United Automobile Insurance Company Office of the General Counsel,
for Appellant.
Dean A. Mitchell, for Appellee.
Before, KARLAN, WARD, and ARECES, JJ.
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WARD, J.
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Defendant/Appellant, United Automobile Insurance Company (“UAIC”) appeals a partial
summary judgment regarding UAIC’s affirmativc defense of “accord and satisfaction” entered in
favor of Plaintiff/Appellee, Brian M. Silver, D.C. P. A. (“Claimant”) a/a/0 Christina Rodriguez
(“Rodriguez”). This appeal hinges on an understanding of the principle of “accord and satisfaction”
as an affirmative defense, whether such defense applies to a case regarding separate bills relating to
the same PIP benefits, and whether this issue can be disposed of on summary judgment.
Mrs. Rodriguez was involved in a motor vehicle accident on October 29, 2007. She made a
claim for personal injury protection (“PIP”) benefits pursuant to another person’s insurance policy,
whose insurer is UAIC. Rodriguez first reported the claim to UAIC on November 2, 2007. On
November 15, 2007, UAIC, through a third-party vendor, requested Rodriguez to submit to an
independent medical examination (“IME”). The IME was conducted by Dr. Marvin Merrit, D.C.,
on December 6, 2007. On December 20, 2007, UAIC sent a letter to Mrs. Rodriguez’ attorney
informing her of the results of the IME. According to Dr. Merrit, further chiropractic treatment
would not be reasonable, related, or medically necessary.
Consequently, the letter suspended
benefits for all chiropractic services rendered after December 6, 2007.
Subsequent to the December 6th letter suspending benefits, UAIC received four sets of bills
from Plaintiff.
The first two sets of bills were received on December 24, 2007, for dates of
treatment rendered from November 9, 2007 through December 18, 2007. The third set was received
on January 7, 2008 for dates of treatment rendered on January 2, 2008 and January 3, 2008. The
fourth set was received on January 14, 2008, for dates of treatment rendered on January 4, 2008
through January 10, 2008.
'
On January 22, 2008, UAIC sent an explanation of benefits (BOB) to Plaintiff along with a
check for $1,143.52. The BOB, stated in pertinent part:
2
On 12/6/07 the above-noted claimant was examined by Dr. Marvin Merritt,
DC. The Independent Medical Examination (IME) physician has advised
us that in his/her opinion, any further chiropractic treatment on or after
l2/6/07 would not be reasonable, related or medically necessary. Any
services rendered by a chiropractor or diagnostic tests referred by a
chiropractor are not reasonable, necessary or related and therefore not
payable.
"Taking the above-stated issues under advisement, attached please find a
draft in the amount of $1,143.52.
The check stub stated that the payment was:
FULL & FINAL PAYMENT OF PIP BENEFITS FOR CHRISTINA RODRIGUEZ,
DOS ll/5/2007-I/3/2008.
Plaintiff cashed the check.
Thereafter, Plaintiff submitted six more sets of bills for dates of service rendered January 14,
2008 through February 19, 2008 and UAIC refused to pay them.
On May 2, 2008, Plaintiff filed suit on the unpaid bills for services rendered on January 4,
2008 through February 19, 2008. As an affirmative defense, UAIC raised accord and satisfaction,
and pled as follows:
,
As and for its affirmative defense, Defendant states that the medical bills on
behalf of Claimant, CHRISTINA RODRIGUEZ, were paid on demand,
drafts were issued by the Defendant, said drafts were cashed and payment
was accepted by the medical provider in accord and satisfaction of full and
final settlement of the PIP benefits for the subject claim, 943384. As a
result, Defendant states that it is not liable for any further or additional
payments, and the payment of said bills is not overdue.
.
Plaintiff Rodriguez moved for summary judgment on this issue. On April 28, 2010, the trial
court granted Plaintiffs motion for summary judgment on accord and satisfaction. The trial court
ruled:
This cause having come on to be heard on Plaintiffs motion for summary
judgment on accord and satisfaction, and the court having heard argument of
counsel, and being otherwise advised in the Premises, it is hereupon Ordered
and Adjudged that: The parties agreed to this hearing date. Plaintiffs motion
is hereby granted. Accord and satisfaction is not a defense any longer.
Plaintiff’ s 57.105 claim is denied.
3
The case proceeded to trial on the issue of whether the bills were reasonable, related or
necessary. The court entered a directed verdict for Plaintiff. Thereafter, final judgment was entered
for Plaintiff in the amount of $4,212.22.
Plaintiffs attorneys were awarded approximately
$80,076.23 in attorneys’ fees and costs. This appeal follows.
The standard of review applicable to srnnmary judgment is de novo, and requires the
appellate court to view the evidence in the light most favorable to the non—moving party. Sierra v.
Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). To analyze summary judgment properly, the
appellate court must determine: (1) whether there is a genuine issue of material fact, and (2)
whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond
Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). A motion for summary judgment is appropriate when
the moving party has shown that there are no issues of material fact, and that all that is left is a
question of law. Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999).
It is well established that summary judgment should only be granted if the moving party
demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable
inferences drawn in favor of the opposing party. Moore v. Morris, 475 So; 2d 666, 668 (Fla. 1985).
If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if
the record raises even the slightest doubt that an issue might exist, summary judgment is improper.
Pennco, Inc. v. Meritor Sav., 617 So. 2d 739, 739 (Fla. 2d DCA 1993). Thus, non-existence of a
genuine issue of material fact is required to grant summary judgment. Holl v. Talcott, I91 So. 2d
40, 43 (Fla. 1966).
The issue of whether an accord and satisfaction occurred is factual. Hannah v. James A.
Ryder Corp., 380 So. 2d 507, 509 (Fla. 3d DCA 1980). The "defense of accord and satisfaction
involves the issue of whether the parties mutually intended to effect a settlement of an existing
4
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dispute by entering into a superseding agreement." Id. Thus, the issue of whether an accord and
satisfaction occurred "is one of fact which may not properly be resolved by summary judgment." Id.
In Chassan Professional Wallcovering, Inc. v. Victor Frankel, Ina, 608 So. 2d 91, 93 (Fla.
4th DCA 1992), the court stated:
The affirmative defense of accord and satisfaction requires proof of (1) a
preexisting dispute as to the nature and extent of an 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 the
obligee's acceptance of performance of the new agreement in full
satisfaction and discharge of the prior disputed obligation. Republic
Funding Corp. v. Juarez, 563 So. 2d 145 (Fla. 5th DCA 1990).
Whether there was an accord and satisfaction involves a question of intent which is a
question of fact to be determined by reviewing the transactions of the parties, and reasonable
inferences deriving therefrom. Miller~Dun Co. v. Green, 154 Fla. 72, I6 So. 2d 637, 638 (I944).
Clearly, the parties in the instant case do not agree on whether there was a mutual intent to
effectuate an accord and satisfaction of all claims relating to the subject accident when the check
was tendered and cashed. Thus, there exists a genuine issue of material fact which precludes
summary judgment.
United Auto. Ins. Co. v. Palm Chiropractic Center, Inc. a/a/0 Joyce Thomas, S1 So. 3d 506
(Fla. 4th DCA 2011) is on point with the instant case. However, its analysis would support a
finding that accord and satisfaction occurred in this situation. In Palm, as in the instant case, UAIC
paid partial benefits on claims by sending a check to a chiropractic center with a letter advising that,
based on an independent medical examination, further chiropractic treatment was not necessary and
that it would not pay further benefits. As in the instant case, after UAIC tendered the check, the
chiropractic center cashed it, and then continued to render treatment. Again like in the instant case,
the chiropractic center in Palm submitted additional claims, even though a check was tendered and
cashed in accord and satisfaction of the previous claims. Likewise, as in the instant case, UAIC
refused to pay PIP benefits for the additional treatment and the chiropractic center sued for the
5
additional claims. Again like in the case presently before this Appellate Court, the trial court
granted the claimant’s motion for summary judgment even though UAIC claimed that the
chiropractic center’s acceptance of the check constituted accord and satisfaction. As in the instant
case, the chiropractic center contended that the accepted check was for partial payment for previous
services rendered and that the suit was for new claims.
When UAIC appealed the trial court in Palm, the circuit appellate court affirmed the
summary judgment in favor of the chiropractic center. UAIC then appealed to the Fourth District
Court of Appeal. The Fourth District Court of Appeal found that it was legal error for the Circuit
Appellate Court to affirm the summary judgment in favor of the chiropractic center because accord
and satisfaction occurred “as a matter of law.”
Despite this finding of legal error, the Fourth
District Court of Appeal stopped short of reversal because it was limited to the scope of second tier
certiorari review.
It was limited to determining whether the circuit appeilate court afforded
procedural due process and whether it departed from the essential requirements of the law which
requires a finding of more than a simple legal error. Nevertheless, the Fourth District Court of
Appeal found that accord and satisfaction occurred under facts that are similar to those present in
the instant case. In both Palm and the instant case, a scenario exists where the cover letter attached
to the check indicated the insurer’s position that no further benefits would be paid. Although the
finding related by the Fourth District Court is pure dicta, its existence is noteworthy given its
relevance to the instant case.
I_n the case presently before us, this Court has not determined that accord and satisfaction
actually occurred. What we do find is that the dispute regarding the intent of the parties, and the
question of whether the check was an accord and satisfaction of specific bills, or of all bills relating
to the accident, creates a genuine issue of material fact. Given the facts in this instance, the trial
6
court should have denied the summary judgment especially where the possibility of a genuine issue
of material fact exists.
For the foregoing reasons, this case is hereby REVERSED and REMANDED to the trial
court for proceedings consistent with this opinion.
KARLAN, J. concurs in the result.
ARECES, J., dissents.
I respectfully dissent from the majority’s reversal. Under the specific facts of this case
“accord and satisfaction” cannot be an affirmative defense and the trial court was correct in granting
summary judgment on this issue.
.
The following facts are undisputed:
1) On January 22, 2008, United Auto sent a check for $1,143.52 to Appellee.
2) The check stub stated that the payment was for “FULL & FINAL PAYMENT OF PIP
BENEFITS FOR CHRISTINA RODRIGUEZ, DOS ll/5/2007-1/3/2008.” The check
memo specifically stated the dates of service up to January 3, 2008.
3) The check enclosed did not pay the entire amount for medical bills that accrued during
the time period reflected on the check memo.
4) The letter enclosing the check states the following:
We have thoroughly reviewed the charges submitted by you for
payment under PIP coverage. Below please find an itemized
specification showing ail charges submitted by your facility for
treatment rendered to CHRISTINA RODRIGUEZ which have
been considered for payment by United Automobile Insurance
Company.
The following bills were presented for payment:
[Note: the letter included a 4 column table reflecting the provider,
dates ofservice, charge and allowed charge]
7
You have failed to submit a properly executed Disclosure and
Acknowledgement form. We hereby disallow any treatment
rendered on 11/5/07.
The charges submitted have been reviewed by a physician who
has opined that not all the charges are reasonable, related and/or
necessary. Please refer to the report attached hereto.
On 12/6/07 the above-noted claimant was examined by Dr.
Marvin Merritt, DC. The Independent Medical Examination
(IME) physician has advised us that in hislher opinion, any
further chiropractic treatment on or after 12/6/07 would not be
reasonable, related or medically necessary.
Any services
rendered by a chiropractor or diagnostic tests referred by a
chiropractor are not reasonable, necessary or related and
therefore not payable.
Taking the above-stated issues under advisement, attached please
find a draft in the amount of $1143.52.
If you would like further information or wish to dispute our
assessment, please do not hesitate to contact the undersigned.
5. This cause of action is for dates of service and claims submitted subsequent to January 3,
2008, not included in the check.
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. Compliance with the new agreement discharges the prior
obligations. Martinez v South Bayshore Tower, L.L.L.P, 979 So.2d 1023 (Fla. 3d DCA 2008),
citing Rudick v. Rudick, 403 So.2d 1091, 1094 (Fla. 3d DCA 1981).
The Martinez Case invoived
pre-construction contracts where the purchasers gave the developer deposits (10% of the purchase
price) and the developer later abandoned the project. The developer returned the deposits to the
purchasers with a letter stating that the cashing of the check would serve as an accord and
satisfaction, terminating the parties’ rights and obligations under the contract. All the purchasers
cashed their checks. The Third District affirmed the summary judgment granted by the trial court
and found that the cashing of the checks satisfied the elements of accord and satisfaction - - the
clear intent to effectuate a settlement and actual performance ofthe new agreement.
8
In the instant case, the letter enclosing the check did not create a new agreement between
the parties. The letter did not even offer to create a new agreement. The letter merely provided an
explanation of the amount of the benefits paid, and why no future payments would be forthcoming,
so as to avoid overdue payments. The letter strictly complied with Section 627.736(4)(b)2, Florida
Statutes, which states:
If an insurer pays only a portion of a claim or rejects a claim, the insurer shall
provide at the time of the partial payment or rejection an itemized specification of
each item that the insurer had reduced, omitted, or declined to pay and any
information that the insurer desires the claimant to consider related to the medical
necessity of the denied treatment or to explain the reasonableness of the reduced
charge if this does not limit the introduction of evidence at trial. The insurer must
also include the name and address of the person to whom the claimant should
respond and a claim number to be referenced in future correspondence.
There was no mention of a settlement and nothing to indicate that the cashing of the check
would satisfy all past and future claims for the October 29, 2007 date of loss. As a result, cashing
the check could not have constituted performance of a new agreement. There is no genuine issue of
material fact to be determined by the fact finder.
The insurer simply complied with the above-
referenced statute and provided the requisite letter according to law.
See Pino v Union Bankers
Insurance Co., 627 So.2d 535, 536 (Fla. 3d DCA 1993) (a letter sent in compliance with the law,
advising of rescission, does not constitute a basis for accord and satisfaction when the insured
deposits the refunded premiums check).
Moreover, while it may be argued that accord and satisfaction occurred for the claims for
service prior to and including January 3, 2008, the instant suit is not based on claims made for those
dates of service. It is based on dates of service and claims submitted subsequent to January 3, 2008.
After the above referenced check was tendered and cashed, six more sets of bills were submitted for
dates of service rendered January 14, 2008 through February 19, 2008.
9
In Personal Injury Protection (PIP) cases, each set of bills creates a new cause of action
which is due and payable as loss accrues. Section 627. 736(4)(b)1, Florida Statutes.
In Union American Insurance Company v Lee, 625 So. 2d 112 (Fla. 4th DCA 1993), the
parties settled a law suit for PIP benefits with a stipulated order of dismissal and a release
containing broad language typically used in the settlement of tort claims.
Subsequent to the
dismissal and release, the insured incurred additional expenses covered by PIP and filed another suit
to recover these benefits. The insurer used the release as a defense. The appellate court affirmed
the trial court’s determination that the release did not bar the claim against the insurer for
subsequent expenses covered by PIP.
Public policy suggests that a release in prior litigation
between insured and PIP insurer does not bar insured's subsequent claim against insurer for PIP
benefits. Id.
The subsequent set of bills, for dates of services rendered after January 3, 2008, must be
treated as a wholly distinct claim. Just as the release could not serve as a defense for subsequent
expenses, accord and satisfaction cannot serve as a defense in this case. Payment constitutes an
accord and satisfaction only as to an existing dispute. Martinez v. South Bayshore Tower, L.L.L.P.,
9'79 So. 2d 1023 (Fla. 3d DCA 2008). The only existing dispute in this case pertains to the claims
for benefits arising subsequent to January 3, 2008. Therefore, the affirmative defense of accord and
satisfaction resulting from the previously cashed check cannot apply to the claims made subsequent
to the check.
The letter did not say that depositing the check would result in an accord and
satisfaction of the claim, and if it had, it could be argued that such a statement would vitiate the PIP
statute by preventing the prompt payment of benefits, and should result in the tendered payment
being considered an overdue payment if not cashed.
The letter strictly complied with the statute; did not mention “settlement;” did not mention
“accord and satisfaction;” and the check previously tendered and cashed was for claims in a specific
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date range. Therefore, claims for subsequent bills cannot possibly be precluded.
When United
Auto refused to pay the subsequent bills, Plaintiff had a right to file the instant suit on the unpaid
bills for services rendered from January 4, 2008 through February 19, 2008. Id. The instant suit
does not involve payment of the prior claims. The suit involves payment for the subsequent claims.
Therefore, Defendant could not validly plead accord and satisfaction as an affirmative defense in
the instant case.
'
It can be argued that the facts of this case are distinguishable from those in Palm (the case
relied upon -by the majority) in that the check memo in the Palm case clearly stated that the payment
was for “full and final payment of PIP benefits,” without specifying the specific dates of service.
However, the case does not need to be distinguished. While this Court is bound by the opinions of
the 4"‘ DCA, (unless it conflicts with the 3“' DCA), the portion of the opinion in the Palm case that
pertains to the issue in this case is dicta, and the opinion clearly fails to take into consideration the
pertinent Florida Statutes pertaining to PIP.
For the foregoing reasons, based on the specific facts of this case, the lower court was
correct in granting summary judgment on the issue of accord and satisfaction in favor of the
Plaintiff and should be affirmed.
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