X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Rickman, Presiding Judge. This appeal concerns a personal injury action arising from an automobile accident involving Stephan Duwayne White and Walter Cheek. White appeals from the trial court’s denial of his motion to enforce a settlement. White contends that the trial court erred by holding that oral communications on White’s behalf constituted a counter-offer, and thus an enforceable settlement agreement was never formed between the parties. For the reasons that follow, we affirm. We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the Appellant’s case. Thus, we view the evidence in a light most favorable to the nonmoving party. (Citation and punctuation omitted.) Pritchard v. Mendoza, 357 Ga. App. 283, 283-284 (850 SE2d 472) (2020). So viewed, the record shows that Cheek filed suit against White alleging that while he was a passenger in a automobile driven by White, White lost control of the automobile and caused a collision that resulted in injuries to Cheek. GEICO was White’s liability insurance carrier. On January 10, 2019, Cheek’s counsel sent GEICO a letter containing an offer of compromise governed by OCGA § 9-11-67.1.[1] The offer provided in pertinent part: 1. The time period within which the material terms pursuant to OCGA § 9-11-67.1 (a) must be accepted is thirty-five (35) days from your receipt of this offer; 2. The amount of monetary payment is GEICO’s liability policy limit of $25,000. . . .; 3. The party that Mr. Cheek will release is Stephan D. White; 4. The type of release that Mr. Cheek will provide to Mr. White is a General Release that releases “all personal and bodily injury claims of Mr. Cheek,” . . .; 5. The claims to be released by Mr. Cheek pursuant to a General Release are “all personal and bodily injury claims of Mr. Cheek,” . . .; Pursuant to OCGA § 9-11-67.1 (b), acceptance of the material terms made pursuant to OCGA § 9-11-67.1 (a) is to be made by providing written acceptance of the material terms outlined immediately above pursuant OCGA § 9-11-67.1 (a) in their entirety. Providing written acceptance of the material terms outlined immediately above pursuant to OCGA § 9-11-67.1 (a) in their entirety is necessary to form a binding settlement contract, but it is not sufficient to form a binding settlement contract. In addition to the above . . . the following ACTS are material to acceptance and must be completed to form a binding settlement contract, and completion of each and every one of the following ACTS without a variance of any sort is required as a material term of this written offer of compromise in addition to the material terms stated above pursuant to OCGA § 9-11-67.1 (a): 1. Pursuant to OCGA § 9-11-67.1 (g), payment is required within fifteen (15) days after the written acceptance of this offer of compromise. . . . . 2. Your insured must provide a sworn and notarized statement that there is no other insurance coverage available to him that could pertain to this loss. . . . 3. All communications to this firm initiated by or on behalf of your insurance company or your insured relating to this offer of compromise must be made in writing. If a communication to this firm relating to this offer of compromise is initiated by or on behalf of your insurance company or your insured in any form other than writing, that will be a rejection of this offer of compromise. . . . Any offer to resolve this case by Mr. Cheek will be made in writing. Any acceptance of this offer must be made through performance of the acts required in this offer of compromise in addition to written acceptance of the material terms of this offer made pursuant to OCGA § 9-11-67.1 (a) in order for this firm and Mr. Cheek to agree that a binding agreement has been formed. Specifically, this offer of compromise cannot be accepted by a mere statement of unconditional acceptance of this offer; instead acceptance of this offer requires full performance of all ACTS required herein without variance of any sort in addition to written acceptance of the material terms of this offer made pursuant OCGA § 9-11-67.1 (a). If any condition or requirement is not met by the specified deadline or if any additional terms, conditions, or representatives are requested of Mr. Cheek or included in the release by GEICO, then there has been no acceptance and no agreement, and this offer will be immediately and automatically withdrawn. 4. Since GEICO will require Mr. Cheek to sign a release of its insured, that release must fully comply with each and every term and condition of this offer. . . . (Emphasis in original). The letter containing the offer of compromise also stated that, “in the unlikely event that GEICO needs any additional information regarding liability or damages to complete its evaluation of this claim, please contact me in writing to let me know. I will do my best to answer any questions you could possibly have.” Despite the requirement in the offer for all communications from GEICO to Cheek’s counsel relating to the offer be in writing, on January 18, 2019, Cheek’s counsel received the following voicemail: Hey this is . . . with GEICO insurance, I was calling regarding your client . . . Cheek. Just wanted to let you know that I was the new bodily injury adjuster, it looks like there is a question of liability on our insured driver . . . White. I am just calling to se if you guys will be able, if you would allow, recorded statements for Mr. Cheek. My phone number is . . ., claim number is . . . Thank you. Five days after leaving the first voicemail, Cheek’s counsel received another voicemail from GEICO: Hi this is . . . with GEICO . . . calling you regarding . . . Cheek. A liability claim has been established and assigned to me. It appears that you sent us a notice of policy limits demand, seeking a claim against our insured . . . White. I just wanted to call and let you know that the claim for liability investigation has been assigned to me for handling, we’d like to try to secure [a] recorded interview from Mr. Cheek. Our investigation at this point indicates this was a hit and run, so I’m a little confused as to where the liability rests with Mr. White. So maybe if you could shed some light on that. I can be reached at . . ., our claim number to reference . . . Thank you. Thereafter, Cheek’s counsel sent a letter to GEICO explaining that he had received GEICO’s voicemail “relating to the offer of compromise I sent on Mr. Cheek’s behalf on January 10, 2019. . . . [and stating that] [o]bviously, your call makes it clear that GEICO has chosen to reject Mr. Cheek’s offer of compromise.” Less than a month later, GEICO’s counsel sent a letter stating that it was accepting Cheek’s January 10, 2019 settlement demand letter and all of its terms. That letter included a $25,000 check payable to Cheek. In May 2019, Cheek’s counsel responded by sending a written reply stating that GEICO declined Cheek’s offer of compromise by failing to comply with the terms of the offer and returning GEICO’s $25,000 check. Thereafter, White filed a motion to enforce a settlement. Following a hearing, the trial court issued an order denying White’s motion. The trial court held that a condition of acceptance of Cheek’s offer was that GEICO could only communicate with Cheek’s counsel regarding the offer in writing and that by failing to comply with that condition, GEICO failed to establish an enforceable settlement agreement. White contends that the trial court erred by holding that an enforceable settlement agreement was never formed between the parties. Pursuant to OCGA § 9-11-67.1, (a) Prior to the filing of a civil action, any offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants shall be in writing and contain the following material terms: (1) The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of the offer; (2) Amount of monetary payment; (3) The party or parties the claimant or claimants will release if such offer is accepted; (4) The type of release, if any, the claimant or claimants will provide to each releasee; and (5) The claims to be released. (b) The recipients of an offer to settle made under this Code section may accept the same by providing written acceptance of the material terms outlined in subsection (a) of this Code section in their entirety. . . . (d) Upon receipt of an offer to settle set forth in subsection (a) of this Code section, the recipients shall have the right to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts. An attempt to seek reasonable clarification shall not be deemed a counteroffer. . . . When interpreting provisions of a statute, such as OCGA § 9-11-67.1, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would…. [I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end. (Citation and punctuation omitted). Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013). “Additionally, all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law.” (Citation and punctuation omitted.) Grange Mut. Cas. Co. v. Woodard, 300 Ga. 848, 852 (2) (A) (797 SE2d 814) (2017). “In enacting OCGA § 91167.1, the General Assembly acted against the backdrop of a large body of law on contract formation generally and settlement formation specifically.” Woodard, 300 Ga. at 852 (2) (A). “As part of that existing law, settlement agreements must meet the same requirements of formation and enforceability as other contracts.” (Citation and punctuation omitted.) Id. “There is no enforceable settlement between parties absent mutual agreement between them.” Id. Accordingly, an answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort. A purported acceptance of a plaintiff’s settlement offer which imposes conditions will be construed as a counteroffer to the offer to settle for the policy limits. (Citation and punctuation omitted.) Id. “These basic contract law principles find their origin in the common law.” Woodard, 300 Ga. at 853 (2) (A). “[I]t is also a fundamental principle of contract law that “an offeror is the master of his or her offer, and free to set the terms thereof.” (Citation and punctuation omitted.) Woodard, 300 Ga. 848 at 853 (2) (A). “This principle also finds its origin in the common law.” Id. “The commonlaw rules are still of force and effect in this State, except where they have been changed by express statutory enactment or by necessary implication.” (Citation and punctuation omitted.) Id. at 854 (2) (B). Accordingly our Supreme Court has concluded that “the plain language of OCGA § 91167.1 does not expressly or by necessary implication contravene these common law principles.” Id. Under OCGA § 9-11-67.1 (d), White was permitted to seek reasonable clarification “regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts” and “[a]n attempt to seek reasonable clarification shall not be deemed a counteroffer.” Nothing in the plain language of OCGA § 9-11-67.1, however, limited Cheek’s ability as the offeror to require that a request for clarification be in writing. See Woodard, 300 Ga. at 854-855 (2) (B) (“[OCGA § 9-11-67.1 (a)] does not expressly limit PreSuit Offers to allow only the five terms listed therein; it reasonably can be read to require merely that every PreSuit Offer include, at a minimum, those five terms. Given that under the common law an offeror is free to set the terms of his of her offer, we read subsection (a) in this fashion, in harmony with the existing law: every PreSuit Offer must contain the five enumerated terms, but additional terms are not prohibited.”). Cheek unambiguously stated in his offer that “[a]ll communications to this firm initiated by or on behalf of your insurance company or your insured relating to this offer of compromise must be made in writing” and Cheek invited a request for clarification, if necessary, if it was in writing. White violated this requirement when GEICO representatives left a voicemail for Cheek that expressly mentioned receiving the offer, questioned liability, and sought further information about the claim. Because White’s representatives violated the express terms of the offer, the parties did not reach a binding settlement agreement.[2] Accordingly, we affirm the trial court’s denial of the White’s motion to enforce settlement. See Pritchard, 357 Ga. App. at 289 (reversing a grant of a motion to enforcement settlement under OCGA § 9-11-67.1 where the offeree “did not perform an act that was required for acceptance of . . . the offer, and the parties did not reach a binding settlement agreement.”); see generally Kemper v. Brown, 325 Ga. App. 806, 808 (1) (754 SE2d 141) (2014) (“A purported acceptance of an offer that varies even one term of the original offer is a counteroffer.”).[3] Judgment affirmed. Senior Appellate Judge Herbert E. Phipps, concurs and McFadden, C. J., concurs specially. In the Court of Appeals of Georgia

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

General Counsel Conference East 2021

September 22, 2021 - September 23, 2021
New York, NY

GCC East addresses General Counsel trends in regulatory, data protection, tech management, legal operations, and leadership.


Register

New Jersey Legal Awards 2021

September 23, 2021
Virtual, NJ

New Jersey Law Journal honors lawyers leaving a mark on the legal community in New Jersey with their dedication to the profession.


Register

Women Influence & Power in Law Awards 2021

October 07, 2021
Washington, DC

Women Influence & Power in Law Awards honors women lawyers who have made a remarkable difference in the legal profession.


Register

UNIVERSITY/ LIFE SCIENCES/TECHNOLOGY TRANSACTIONS

Boston, Massachusetts, United States

Premier research university seeks 7+ year attorney with strong background drafting and negotiating complex contracts to partner with busines...


Apply Now ›

Partner

Boston, Massachusetts, United States

Prominent Boston firm seeks partners with moderate billings for a variety of practice groups. Outstanding opportunity to join a collegial fi...


Apply Now ›

Commercial Real Estate Transactional Associate

Boston, Massachusetts, United States

Large firm with Boston office seeks associate with three to seven years experience to join its real estate practice group. Qualified candid...


Apply Now ›

JAVERBAUM WURGAFT HICKS

09/20/2021
NJLJ Web

JAVERBAUM WURGAFT HICKS mourn the passing of our Co-Founding Partner, collegue, and friend.


View Announcement ›

BARTON GILMAN LLP

09/14/2021
CLT Web

Barton Gilman Expands Into Connecticut


View Announcement ›

BARTON GILMAN LLP

09/14/2021
TLI Web

Barton Gilman LLP is excited to announce that its expansion into Philadelphia


View Announcement ›