UNITED AUTOMOBILE INS CO

v.

HIALEAH WELLNESS AND REHAB CENTER, INC

REBULL, Judge. The issue in this appeal is whether United Automobile Insurance Company's ("United Auto") delivery of a check to Hialeah Diagnostic constituted a valid tender, as a matter of law, thus serving as a defense to the instant action. Because we find that the check and accompanying documents are susceptible to more than one interpretation, a genuine issue of material fact precludes the entry of summary judgment and we reverse the lower court order entering summary judgment in favor of Hialeah Diagnostic. On March 27, 2007, Hialeah Diagnostic mailed five different Health Insurance Claim Form 1500s to United Auto. Each form represented a bill for services provided by Hialeah Diagnostic to Jorge Chavarria for five dates of service from March 6, 2007 through March 9, 2007. On March 29, 2007, United Auto received the five forms. Page 10f8 [*2] Following receipt of the HEALTH INSURANCE CLAIM FORMs, United Auto issued an Explanation of Benefits ("EOB") dated April 23, 2007. This EOB is set forth below in its entirety: 'Unfted ..7iutomobi{e '1nsurance C011!Pany RO. Box 600580 • Miami, FL 33160 30S-9!jO-7299 • 954-462-6803

EXPLANATION OF BENEFITS

April 23, 2007

HIALEAH DIAGNOSTIC, INC

1991 W 60 ST IIIALEAI'I, FL 33012 Rc; Insured: Clo,inl NUJubcr:

JORGE CHAVAR

0000918558 I>>>tc of Loss: PoUcy N'uluber: 2/25/07 C:=>C:>\. c::>\ I UAU 00]020986 -

PAP DROP

[)ear Sir/Madan1: \Vo have thoyough1y reviewed the charges subrnitted by you for paYll1cnt under PIP coverage,. Below please find nn itetnizcd specification shovv-ing ull charges suhlnittcd by your facility for treattncnt J'cndCTcd tv JORGE CHA V AR which have been considered for payn1:cnt by United AUt0010bilc Insurance Company. The following bins 'l.vere presented for puytTIcnt: Cbarge- Provider Dutes of Service

H IALEAU

3/6/07 - 30'1"'9"':;;0""7c-+--'S"1"',"'7""0"'9 DIAGNOSTIC, INC Allowed . "_~_~_~!.!]l~. __ SI,709 - $)000 DED =$709 @80 0/o ................. ____ .• ___ . __ .. _. ________ --'~ ______ ---'-_..;.="'S:=5'_'6'"'7..!.."'"Z"'O _ _J Taking the above-stated issues unde,. udviscIT\cnt. atta.ched pleusc find a draft in the mnount of$567.20. Taking the above-stated issues under a.dvisClncnt~ the bills have been applied to the deductible. If you would like further in1bnnntion or wish to dispute our ussC'ssJncnt, please do not hesitate to contact the undersigned. SinccrcJy~

KEV AUN HINDS

ClaiIlls Adjuster - .. Included with the EOB in the transmission from United Auto to Hialeah Wellness was the following draft (or check): Page² of 8 [*3] ,I I Ii I \ I . , • UNITE\) .. ACCOUNT. • . . . ~ . . ':, (I I',..)~, "~ ''':~::' :~ .. > " ., ' ... ' .... Pay 10 the . HIALBAH . Order Of--",~~= 1l'0 H.& 5 ~ 1,11" '~:i:J& H 10 ~ ~ 5.: ao?'l'lI,DD 1& l&?a' ...... ..... '1 A8S8C8a. ... u.a.MTUlTMAlllMuca .... 'ftlRlDIIICoUDCMaI(.~M1Itft'_MlIIIINTID'MINtwI1'SIHInM!DIIC .. WlU.ClllWPURWMI!IIII.IIIIWDOII_ ---~---------.~--... -.-. ..... - ---_.- It appears from the record on appeal that this check had attached to it the following check stub: - UNITED AUTOMQel\.E INSURANCE COMPANY

DETACH AND RETAIN THIS STATEMENT

DATE: 4/12/07 CHBCKI: 0166514 POLICY.: UAU -001020986 PAYEE: CHECK AMOUNT: $ ········567.20 IN POLL AND

FINAL PAYMENT OF PIP BENEFITS

CLAIM I. 0000918558 Unit # : 001 - U~4 MITS GJ\lJ\NT ES REASON: HIALlWl DIAGNOSTIC CBNTBR 1991 II 60 ST.

HIALEAH

PL 33012 Claimant: 001 - JORGS E CHAVIIRRIA Coverage, PID - PIP 1000 DED Page 3 of8 [*4] , , In response to the EOB and check it received, Hialeah Diagnostic returned the check to United Auto with the following letter: . .. .. '. Hialeah Wellness & Rehab Center II's your lut ....... be Ihere .... lthy •• • ••• • • •• o • '.0 •• •• April 30, 2007 United AutOJJlobile Insurance 3909 NE 163'" Street 'N'MI8IIIi'Seaeh,:FL 33160 Attention: Kevaun Hinds Re: Jorse Cbavar .. _ \ CiaimNOO00918SS8 ..-C::X=:>\ -O~ • DOA: 02125107 •• . . Policy N: UAU 001020986 • • •• P~be advised, our office "';11 not accept check 1I0166S14 as fUll & finaJ payment f"or services rendered on 03106/07 through 03/09107 due to the full and final printed on the el\eCtt. Even though on the BOB the date range is stated, we "';11 not accept the check as it is. lf~ou ""ould like it can be reissuec:l vvith the date range stated on the check:. If'you Nl'\MAny questions, please contact the undersigned. • •• •• • ... .. • ••• • Sincerely, ... , Vanessa Hojas Billins Depanmenl Hialeah Diagnostic, Inc. Enclosures as stated above, I ~FF'S IBfT United Auto never reissued the check, or any other form of payment, for the five forms, and Hialeah Diagnostic never received any other payment for the services reflected on the forms, Hialeah Diagnostic sued United Auto for payment of the five forms.l I This appeal only involves non·payment of the five fonns discussed above. Page 4 of8 [*5] Although not the subject of the dispute in this action, it is important to note that Hialeah Diagnostic billed United Auto for services it provided after March 9, 2007, and United Auto paid those bills without incident. The later checks differed, in that United Auto noted both the payee and the relevant dates of service for which "full and final payment of PIP benefits" was being made: -- $. ..... ·+t-··Sf²,r?O, The sole issue on appeal is whether United Auto validly tendered payment for the five forms through the submission of the April 12, 2007 check and accompanying April 23, 2007 EOB. United Auto moved below for summary judgment based on its tender defense. Hialeah Diagnostic filed a cross-motion for summary judgment, seeking payment for the unpaid services rendered in the amount of $567.20. The trial court denied United Auto's motion for summary judgment, and granted summary judgment in favor of Hialeah Diagnostic. Analysis A tender is "an unconditional offer of payment consisting of the actual production of a sum not less than the amount due on a particular obligation .... " Ismark v. w.G. Mills, Inc., 899 So. 2d 1213, 1214 (Fla. 2d DCA 2005) (quoting 28 Williston on Contracts § 72:27, 72:29 (4th ed. 2003). "However, a tender of sums due on a date certain under a contract will stop the accrual of prejudgment interest only when the tender is absolute and unconditional." Id. (emphasis added). A tender "more precisely is stated as an offer of payment that is coupled either with no conditions or only with conditions upon which the tendering party has a right to insist." 28 Williston on Contracts § 72:27 (4th ed.) (citations omitted).² Jakalam Properties, Ltd., 422 S.W. 3d 85 (Tex.App.- Dallas 2014); Pavlow v. Jensen, 2005 WL 3310015 (Tex.App.-Houston 2005). Page 5 of8 [*6] the $567.20 check was only intended to be payment of the bills for the dates of service set forth in the accompanying EOB. Hialeah Diagnostic argues that, on the other hand, United Auto intended to make that $567.20 check full and final payment for any service to ever be provided by Hialeah Diagnostic to the insured related to the car crash at issue; or, at a minimum, that the check was ambiguous because it omitted dates of service from the payee line, which were included in later checks. Having decided that the alleged tender was ambiguous, we must next decide the legal effect of that ambiguity. Both sides below filed cross motions for summary judgment. United Auto argued that the undisputed facts established a valid tender as a matter of law. Hialeah Diagnostic argued, on the other hand, that what United Auto did was not - as a matter of law - a valid tender. In sum, each side is arguing what they assert is their reasonable interpretation of the writings (EOB and draft) delivered by United Auto to Hialeah Diagnostic. Florida jurisprudence recognizes that if the language of an instrument or instruments, considered together, "lends itself to more than one reasonable interpretation, it creates such an ambiguity as to preclude the entry of a summary judgment for either party." See 49 Fla. Jur 2d Summary Judgment § 30 (2015), and numerous cases cited therein. As a result, the summary judgment entered in favor of Hialeah Diagnostic must be reversed. On remand, as the party asserting the affirmative defense of tender, United Auto will have the burden of proving to the finder of fact, by the greater weight of the evidence, that it tendered to Hialeah Diagnostic the amounts sought in this action. Specifically, United Auto carries the burden to prove that it made an absolute and unconditional delivery to Hialeah Diagnostic of the sums due. Hialeah Diagnostic may of course present evidence tending to show that United Auto's delivery of Page 6 of8 [*7] the funds was not "unconditional,"3 such as the evidence of later checks which contained the dates of service to which they applied. This is analogous to the situation addressed in instruction 416.18 of the Florida Standard Jury Instructions in Contract and Business Cases, regarding interpretation of disputed terms of a contract by how the parties acted before and after the disputed terms, in other words, their course of conduct. The parties in this case each cite to the opinion in United Automobile Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So. 3d 506 (Fla. 4th DCA 2010), in support of their respective positions. In that case, the appellate court decided that second tier certiorari relief was not available, and it denied the petition. In its opinion, however, the court noted that: At the time the check was tendered in this case, there were sessions for which United Auto was not offering to pay. The check and the cover letter clearly indicated the insurer's position that no further payments would be made. United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So. 3d 506, 509 (Fla. 4th DCA 2010)(emphasis added).4 In this case, it is not at all clear from United Auto's check and accompanying letter whether United Auto was taking the position that it was not going to be paying for any other medical bills if Hialeah Diagnostic deposited the $567.20 check. Indeed, this case is more like an opinion not cited by either side, but distinguished by the court in Palm Chiropractic, that is, St. Mary's Hospital, Inc. v. Schocoff, 725 So. 2d 454 (Fla. 4th DCA 1999). In Schocoff, the trial court entered summary judgment for the insurance company on its defense of accord and satisfaction. The appellate court reversed because "there remained a genuine factual issue on the parties' intent, an essential element of the defense .... " See id. at 3 This is in keeping with Hialeah Diagnostic'S argument that United Auto was essentially requiring it to accept - as a condition of depositing the $567.20 - that it was in full and final payment for "in excess of $2,500 in medical bills .... " (Ans. Brief at 2). 4 The opinion indicates that United Auto's letter advised that, "based on an independent medical examination, further chiropractic treatment was not necessary and that it would not pay further benefits." See id.at 507. Such a letter, accompanying a check with "FULL AND FINAL PAYMENT OF PIP BENEFITS" language, is pretty clear as to the insurer's intent. Page 7 of8 [*8] , . ' 455. The court held that the evidence in the record on appeal did not establish accord and satisfaction as a matter of law, and it remanded for the finder of fact to decide whether the insurer had carried is burden of proof on this defense. Similarly, in this case, on remand the insurer must carry its burden of proving that it was only tendering payment for the five bills at issue, and not making it a condition of such acceptance that it would not pay for any more bills for any other dates of service. Reversed and remanded for proceedings consistent with this opinion. JJ. MILLER AND HENDON, concurring, .. ~ J. /?J2v-Q -p ,

THOMAS J. REBULL