Accord & satisfaction; MCL 440.3311(1)(i)-(iii); “Good faith”; ”Conspicuous”; MCL 440.3311(2); MCL 440.1201; Fraud in the inducement; Failure to order defendants to produce a transcript of a phone call; Waiver; Uniform Commercial Code (UCC)

The court concluded there was no genuine issue of material fact whether an accord and satisfaction was created. And plaintiff’s fraudulent inducement argument failed because she did not establish, by clear and convincing evidence, that defendants-Calcotes’ insurer intentionally made a false representation. Finally, she waived her claim that the trial court abused “its discretion by not entering an order compelling defendants to produce a transcript of” a phone call between plaintiff and their insurer. Plaintiff filed this auto negligence suit after cashing a check from the Calcotes’ insurer. The trial court granted defendants summary disposition, finding an “Advice of Payment accompanying the check was adequate to create a valid accord and satisfaction.” On appeal, the court held that all the requirements of MCL 440.3311(1) were met. Notwithstanding the factors were met, plaintiff argued “that there was, at least, a genuine issue of material fact concerning whether her claim was discharged.” She contended that the check and the Advice of Payment were “insufficient to establish an accord and satisfaction.” She further claimed there was “no accord and satisfaction because there was no ‘meeting of the minds’ in that plaintiff did not know or intend that the check would serve as a settlement of her claims.” The court found that her arguments were contrary to the UCC. Plaintiff was “correct that the check itself contains no language indicating that it is a full and final settlement of plaintiff’s claims. However, MCL 440.3311(2) explicitly states that a claim can be validly discharged if it is accompanied by a written communication with a conspicuous statement that the tender is in full satisfaction of the claim.” The court concluded “that the Advice of Payment contained such a conspicuous statement.” It determined “that the statement in the Advice of Payment was ‘set off from surrounding text by symbols or other marks’ such that a reasonable person ought to have noticed it, and therefore meets the definition of ‘conspicuous’ under MCL 440.1201(j).” Further, it found that the Advice of Payment contained “sufficiently detailed language to satisfy MCL 440.3311(2).” Given that “the Advice of Payment accompanying the check contains sufficient information to discharge plaintiff’s claim under MCL 440.3311(2), the trial court did not err by finding that an accord and satisfaction had been created.” Affirmed.