Georgia Court of Appeals
Patrick v. Kingston
2024 WL 566609 (Ga. Ct. App. Feb. 13, 2024)
Judge Dillard
Topics: Settlement Offers
Full Take: This case is about whether a presuit settlement offer was binding.
Two grieving parents and the Estate of Jennifer L. Patrick (“Plaintiffs”), sued Megan Kingston, seeking damages arising from a motor-vehicle accident that resulted in Jennifer's death. Kingston was drunk, and she had been driving the wrong way, heading east in a westbound lane, when she crashed into Patrick’s car, killing her. Defendant Kingston’s defense was handled by Progressive, her insurer.
Plaintiffs made a pretrial offer of settlement under a version of OCGA § 9-11-67.1 that was in effect prior to 2021 amendments to that statute. The offer of compromise was conditioned on being accepted “unequivocally and without variance of any sort.” It provided that the offer must be accepted within 35 days, that Progressive would pay the bodily injury liability policy limit of $25,000, and that the Plaintiffs would not grant a full release to Defendant Kingston; rather, the release would be limited to still allow Plaintiffs to seek recovery from any other insurance coverage that may be available. The claims to be released were all claims by the parents for the wrongful death of Jennifer Lee Patrick and all claims of the Estate of Jennifer Lee Patrick for pain and suffering and the funeral, medical, and other necessary expenses resulting from the injury and death of Jennifer Lee Patrick,” but no other kinds of claims were to be released. The offer required written acceptance and performance of specific actions including payment being received by the attorney’s office within 10 days of written acceptance, specifying that timely payment was a material condition of acceptance. If payment had to be to a specific payee, the offer demanded that payment be made to “Charles Patrick, Martha Davis, the Estate of Jennifer Lee Patrick, and Morgan & Morgan Atlanta, PLLC.” The demand expressly cautioned that if Progressive sent any document that included any terms, conditions, descriptions, or representations that are not permitted in the release, it would constitute a counteroffer and rejection of Plaintiff’s settlement offer.
Finally, and importantly, the offer advised that it had supplied all information necessary to evaluate the offer of compromise; however, if you believe some additional information is necessary to evaluate this offer of compromise, “any request for additional information must be made as soon as possible and at least ten (10) days before the deadline for written acceptances so that we will have a reasonable opportunity to try to obtain the requested information.”
On February 25, 2021, Progressive sent a response letter to Plaintiffs’ counsel, noting that it was accepted “unconditionally, unequivocally and without variance accepting the terms and conditions of your offer of settlement.” The letter further indicated that Progressive would “send the payment and release to your office within the time period set forth in your offer of settlement.” And on March 2, 2021, Progressive sent Plaintiffs’ counsel a check and a release. The check was in the amount of $25,000.00 and was made out to “CHARLES PATRICK MARTHA DAVIS THE ESTATE OF JENNIFER LEE AND MORGAN AND MORGAN ATLANTA PLLC.”
The general release sent by Progressive, however, included terms that did not appear in the offer, particularly a release of all types of insurance coverage except uninsured motorist coverage. The check also stated that it had to be cashed within 90 days or it would not be honored.
On March 30, 2021, Plaintiffs’ counsel sent a letter to Progressive, returning the $25,000.00 check. In the correspondence, Plaintiffs’ counsel noted that Progressive had rejected the offer of settlement by sending “an invalid release that included multiple terms, conditions, and representations that were not offered.” The letter then concluded that, given the failure to settle the matter, Plaintiffs would be filing suit in the near future. About five months later, Plaintiffs filed a complaint against Kingston and two Athens area taverns—the second of which was added in an amendment to the complaint—that allegedly served alcoholic beverages to Kingston despite her being noticeably intoxicated.
Progressive filed a motion to enforce a settlement agreement, and the trial court granted her motion. Because more than 90 days passed, the trial court ordered that Progressive issue a new check. The Complaint was dismissed. The Plaintiffs appealed. Plaintiffs argued on appeal that because the insurer's purported acceptance was not identical to their offer, the offer had been rejected. Plaintiffs also argued that the trial court exceeded its jurisdiction by requiring specific performance from the insurer.
The standard of review for an order on a motion to enforce settlement agreement is de novo. The trial court either got it right or wrong; there is no discretion. The Court notes that the standard is “analogous to those in a motion for summary judgment” in that a movant seeking an order to enforce settlement agreement has the burden to show, by documents, affidavits, depositions and other evidence in the record, that there is no evidence sufficient to create a jury issue on at least one essential element of the Appellant's case. The evidence is viewed in “a light most favorable to the nonmoving party.”
The Georgia Court of Appeals agreed with the Plaintiffs that the trial court erred in ruling that Progressive's acceptance materially complied with the terms of their offer and that the settlement was binding. An offeror is the master of his or her offer and free to set any terms. Here, substantial acceptance was not good enough. The offer expressly stated—take all of our terms or there is no deal. And then Progressive tried to change the terms of the release. So they rejected the offer. The Court even found that putting language on the check requiring that it had to be cashed within 90 days constituted an added term that invalidated the settlement. The law did not require that banks refuse checks after 90 days. (They do have the option to refuse checks after 180 days, though they are not required to do so). The trial court tried to get cute and ordered Progressive to reissue the check, as it was now more than 90 days old. But the Court could not do that because there was no binding settlement. REVERSED AND REMANDED