UNITED AUTOMOBILE INSURANCE COMPANY

v.

RIVERO DIAGNOSTIC CENTER, INC., A/A/O CARLOS BACALLAO

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

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). 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 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 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 Code², 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.

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 Rivero Diagnostic on United Automobile’s accord and satisfaction defense, and remand for further proceedings consistent with this opinion.