UNITED AUTOMOBILE INSURANCE COMPANY v. RIVERO DIAGNOSTIC CENTER, INC., A/A/O CARLOS BACALLAO ( 2021 )

Third District Court of Appeal
State of Florida
Opinion filed August 25, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-60
Lower Tribunal Nos. 12-9865 SP, 19-242 AP
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United Automobile Insurance Company,
Appellant,
vs.
Rivero Diagnostic Center, Inc., a/a/o Carlos Bacallao,
Appellee.
An Appeal from the County Court for Miami-Dade County, Elijah A.
Levitt, Judge.
Michael J. Neimand, for appellant.
A Able Advocates – Stuart L. Koenigsberg, P.A., and Stuart L.
Koenigsberg, for appellee.
Before EMAS, LINDSEY and GORDO, JJ.
EMAS, J.
INTRODUCTION
United Automobile Insurance Company (United Auto) appeals final
summary judgment entered in favor of Rivero Diagnostic Center, Inc. (Rivero
Diagnostic) on United Auto’s defense of accord and satisfaction. 1 We
reverse, and hold that the language displayed on the check issued by United
Auto satisfied the “conspicuous statement” requirement of Florida’s Accord
and Satisfaction statute, section 673.3111(2), Florida Statutes (2008), and
the trial court erred in finding to the contrary.
FACTS AND BACKGROUND
Carlos Bacallao was involved in an automobile accident on March 10,
2008. Bacallao received medical services from Rivero Diagnostic and later
assigned to the company his rights to personal injury protection (“PIP”)
benefits under a policy of insurance issued by United Auto. Rivero
Diagnostic submitted a claim to United Auto for PIP benefits, seeking
payment for medical services and treatment provided to Bacallao, and
United Auto issued a check on July 21, 2008, which Rivero Diagnostic
endorsed and cashed. Rivero Diagnostic claims that United Auto refused to
1
Following the order on appeal being issued, the case proceeded to jury trial
and the jury rendered a verdict in favor of Rivero. Final judgment was then
entered and this appeal followed. The only issue raised in this appeal is
whether the trial court erred in granting summary judgment on the accord
and satisfaction defense.
2
pay Rivero Diagnostic for all medical treatment and services provided to
Bacallao, and in May 2012, filed a breach of contract claim against United
Auto. In its amended answer, United Auto raised the affirmative defense of
accord and satisfaction, asserting the check issued to Rivero Diagnostic
contained conspicuous language that the check was in “FULL & FINAL
PAYMENT OF PIP BENEFITS,” and that the check was endorsed and
cashed by Rivero Diagnostic. Below is the check sent to Rivero Diagnostic,
together with the statement (or stub) attached to the check:
3
Thereafter, Rivero Diagnostic filed a motion (later amended) for
summary judgment on United Auto’s accord and satisfaction defense.
Rivero Diagnostic conceded that United Auto issued the above check and
statement to Rivero Diagnostic and that Rivero Diagnostic cashed the check.
However, Rivero Diagnostic contended the “full and final” language was not
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“conspicuous” as required by Florida law, and therefore United Auto could
not establish the defense of accord and satisfaction. Following a hearing,
the trial court granted Rivero Diagnostic’s motion for summary judgment on
United Auto’s accord and satisfaction defense, concluding that the “full and
final” language was not conspicuous. This appeal follows, and we review de
novo the trial court’s order granting summary judgment. See Volusia Cnty.
v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 125, 130 (Fla. 2000); Sierra
v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000).
ANALYSIS AND DISCUSSION
Although the defense of accord and satisfaction was recognized at
common law, see Hannah v. James A. Ryder Corp., 380 So. 2d 507 (Fla. 3d
DCA 1980), that common law concept has largely been supplanted by
Florida’s adoption of the Uniform Commercial Code, chapters 670-680.
Relevant to the instant case, Chapter 673 generally addresses negotiable
instruments and, in particular, section 673.3111—entitled “Accord and
satisfaction by use of instrument”—provides in pertinent part that a claim may
be discharged by way of an accord and satisfaction
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.
§ 673.3111(2), Fla. Stat. (2008) (emphasis added).
5
Additionally, Chapter 671 contains general provisions and definitions,
including the definition of “conspicuous,” as that term is used in the accord
and satisfaction context:
(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.
§ 671.201(10), Florida Statutes (2008) (emphasis added).
The Uniform Commercial Code comment relevant to the definition of
“conspicuous,” provides:
[The definition of the term “conspicuous”] is intended to indicate
some of the methods of making a term attention-calling. But the
test is whether attention can reasonably be expected to be called
to it.
In the instant case, the payee line on the check at issue contains the
language “FULL & FINAL PAYMENT OF PIP BENEFITS.” The check also
contains the policy number, claim number, assignor/patient, and the date of
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service (DOS). In like fashion, the attached statement or check “stub”
contains the identical information in a virtually identical format.
The question is whether the above language was “conspicuous”—that
is, whether it is “so written, displayed, or presented that a reasonable person
against which it is to operate ought to have noticed it.” § 671.201(10). We
hold that the language is conspicuous, and that the trial court erred in
determining otherwise.
We reject the argument that the language cannot be deemed
“conspicuous” because it does not satisfy any of the examples described in
the definitional section 671.201(10). A plain reading of the statute reveals
that these are simply examples of conspicuousness, and that they are not
the exclusive manner by which a statement or term can be deemed
conspicuous. Indeed, and as noted earlier, the official Uniform Commercial
Code comment provides, the definition of “conspicuous” is “intended to
indicate some of the methods of making a term attention-calling,” but
instructs that the ultimate test is simply “whether attention can reasonably be
expected to be called to it.” This is also consistent with the Uniform
Commercial Code comment that follows section 673.3111’s accord and
satisfaction provision, which observes:
[The accord and satisfaction statute] requires a “conspicuous”
statement that the instrument was tendered in full satisfaction of
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the claim. “Conspicuous” is defined in Section [671.201](10). The
statement is conspicuous if “it is so written that a reasonable
person against whom it is to operate ought to have noticed it.” If
the claimant can reasonably be expected to examine the
check, almost any statement on the check should be noticed
and is therefore conspicuous.
§ 673.3111, Fla. Stat. (2020), cmt. 4.
Additionally, we find guidance in the comments to section 1-201 of the
Uniform Laws Annotated of the Uniform Commercial Code 2, which provide,
inter alia:
10. “Conspicuous.” Derived from former Section 1-201(10). This
definition states the general standard that to be conspicuous a
term ought to be noticed by a reasonable person. Whether a term
is conspicuous is an issue for the court. Subparagraphs (A) and
(B) set out several methods for making a term conspicuous.
Requiring that a term be conspicuous blends a notice function
(the term ought to be noticed) and a planning function (giving
guidance to the party relying on the term regarding how that
result can be achieved). Although these paragraphs indicate
some of the methods for making a term attention-calling, the
test is whether attention can reasonably be expected to be
called to it. The statutory language should not be construed
to permit a result that is inconsistent with that test.
2
Florida’s Uniform Commercial Code (UCC) accord and satisfaction defense
was adopted verbatim from the Uniform Laws Annotated of the UCC, section
1-201. In such situations, Florida courts often rely upon the Code and its
comments for guidance. See e.g., Corfan Banco Asuncion Paraguay v.
Ocean Bank, 715 So. 2d 967, 971 (Fla. 3d DCA 1998) (noting: “Although the
commentary to the UCC is not controlling authority, we are persuaded by the
expressed intent of the drafters” (internal citations omitted); Allen v. Coates,
661 So. 2d 879, 882 (Fla. 1st DCA 1995) (noting, “we are guided by the
official comments of the Uniform Commercial Code adopted in Florida.”)
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U.C.C. §1-201, cmt. 10 (emphasis added).
Finally, and in the absence of any case law in Florida, “where a Florida
statute is patterned after a statute of another state, we may look to the judicial
interpretation of the other state as persuasive authority in interpreting the
Florida statute.” Dunn v. Doskocz, 590 So. 2d 521, 523 (Fla. 3d DCA 1991).
See also In re Grubbs Constr. Co., 319 B.R. 698, 712 (M.D. Fla.) (noting:
“Since the UCC has been adopted by all 50 states, and given the uniformity
purpose of the UCC, decisions from other states are relevant” in interpreting
the UCC in a particular state) (quotations omitted).
A number of states have adopted the identical version of Florida’s
statutory accord and satisfaction provision, as well as the definition of
“conspicuous” used in that context. See, e.g., § 42a–3–311(b), Conn. Stat.
Ann. (2021) (“Accord and Satisfaction by Use of Instrument” statute
provides, in language identical to Florida’s section 673.3111(2), that “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”); § 336.3-311(b), Minn. Stat. Ann. (2021) (same); §
8.3A-311(b), Virginia Code (2021) (same); § 3311(b), California Uniform
Commercial Code (2021) (same); § 28-3-310(2), Idaho Code (2021) (same).
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Decisions from those jurisdictions have held that the language used in this
case, displayed on the face of a check in the same or similar manner,
satisfies the “conspicuous statement” requirement for purposes of the
statutory accord and satisfaction defense. See, e.g., Brouillard v. Reid, No.
CV065001851, 2009 WL 455520 (Conn. Super. Ct. January 22, 2009)
(holding words “FULL BALANCE DUE (RENT)” written in upper left corner
of check satisfied “conspicuous statement” requirement under Connecticut’s
“Accord and satisfaction by use of an instrument” statute); Newman v.
Marcus, No. A07-1165, 2008 WL 4224402 at *2-3 (Minn. Ct. App. September
16, 2008) (affirming trial court’s determination that the words “Final Payment
Settlement” displayed in the memo area on front of the check satisfied
“conspicuous” requirement under statute); Brucato v. Ezenia!, Inc., 351 F.
Supp. 2d 464, 469 (E.D. Va. 2004) (holding statement at top of
accompanying letter that the enclosed check “represented payments for
outstanding commission” was adequately conspicuous); Woolridge v. J.F.L.
Electric., 117 Cal. Rptr. 2d 771 (Cal. App. Dep’t Super. Ct. 2002) (holding
where check bore the notation “For full and final settlement of your injury,”
on the front of the check such statement was conspicuous and satisfied the
accord and satisfaction statute); Holley v. Holley, 915 P.2d 733, 740 (Idaho
Ct. App. 1996) (holding that check satisfied conspicuous statement
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requirement where it said “Paid in Full plus int. & late ch.” in the
memorandum section). See also Soares v. Langlois, 934 A. 2d 806, 810-11
(R.I. 2007) (concluding that although the statement on the check—
”SETTLEMENT FOR INJURY SUSTAINED FROM AUTO ACCIDENT ON 8-
4-00”—was “not in bold print, it was conspicuous on the front of the check”
and satisfied Rhode Island’s common law requirement that the language
must be “printed in such a way as to be likely to come to the attention of the
party receiving it”); Auto Glass Express, Inc. v. Hanover Ins. Co., 912 A.2d
513, 518 (Conn. App. 2006)(affirming comment 4 to § 42a-03-311 of
Connecticut’s accord and satisfaction law which, in language identical to
Florida’s comment, notes: “If the claimant can reasonably be expected to
examine the check, almost any statement on the check should be noticed
and is therefore conspicuous.”)
CONCLUSION
We hold that the “FULL AND FINAL PAYMENT OF PIP BENEFITS”
language, displayed on the payee line on the front of the check, satisfied the
“conspicuous statement” requirement of Florida’s Accord and Satisfaction
statute in that it was “so written, displayed, or presented that a reasonable
person against which it is to operate ought to have noticed it.” § 671.201(10),
Fla. Stat. We therefore reverse the summary judgment entered in favor of
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Rivero Diagnostic on United Automobile’s accord and satisfaction defense,
and remand for further proceedings consistent with this opinion.
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