If you make an offer to settle your accident, does the acceptance of that offer have to be identical to make it binding?
A motorist was involved in a motor vehicle accident, and he (the plaintiff) sued the other driver (the defendant) for injuries arising out of that car crash. The defendant claimed that the parties reached a pre-suit settlement. But the plaintiff asserted that there wasn’t a settlement and moved for summary judgment on the question. The defendant moved to enforce settlement. The trial court denied the plaintiff’s motion and granted the defendant’ motion to enforce settlement. The plaintiff appealed.
After the February 2021 accident, the plaintiff made a written pre-suit offer to the defendant’s insurer to settle his personal-injury claim. The detailed offer letter required the payment of $25,000 (the bodily injury coverage limit) and noted that the insurance company must accept the terms of the offer in writing within 31 days. The offer letter further dictated that any payment requiring the name of a payee must be made out to the law firm and that, “[a]s an act necessary to accept this offer,” payment had to “be received 15 days after the insurance company’ written acceptance of th[e] offer.” Also included in the offer letter was the following statement:
As an act necessary to accept this offer, the settlement payment and all other documents sent by the insurance company must not include any terms, conditions, descriptions, expirations, or restrictions that are not expressly permitted in this offer.
Finally, the offer letter cautioned that
[m]ultiple cases demonstrate the hazards of attempting to negotiate agreements without terms and conditions for acceptance being clear, and we want to be clear that this offer must be accepted exactly as stated and that any variance at all from any terms or conditions of acceptance or any variance at all from the quoted language above, even if accidental, will be a rejection of this offer.
Just days later, the insurance company responded that the insurer authorized him to accept the plaintiff’s offer. Their letter was accompanied by the settlement check and a limited release. The settlement check was made out to the plaintiff’s law firm and included a notation that it was “void after 180 days.” In subsequent correspondence, the plaintiff explained to the insurance company that its purported acceptance was not identical to the offer and that the plaintiff was rejecting the insurer’s counteroffer. The plaintiff subsequently filed this action against the defendant for negligence and negligence per se, alleging that his medical expenses totaled nearly a million dollars. The defendant contended that there had been an accord and satisfaction of the plaintiff’s claims.
In his subsequent motion for summary judgment on that defense, the plaintiff claimed that there was no settlement agreement between the parties and, thus, that the defense failed as a matter of law. The plaintiff argued that counsel for the insurance company had only indicated that she was authorized to accept the offer, not that she was actually accepting the offer. As to the terms of the offer, the plaintiff argued:
- The insurance company failed to supply the settlement check 15 days after their written acceptance as stated in the offer;
- The settlement check itself violated the terms of the offer by including a provision that it would be void after 180 days; and
- The insurance company failed to properly name the payee on the settlement check by failing to include a necessary comma.
In response, the defendant argued that he complied with the five material statutory terms required by OCGA § 9-11-67.1 and that their acceptance didn’t vary from the terms of the plaintiff’s offer. Specifically, he argued that it was “utterly absurd” that the plaintiff was complaining that he’d received the settlement check earlier than the required 15 days, that the expiration of the check was dictated by law, and that the plaintiff had failed to demonstrate that the missing comma was material to whether the check was negotiable. In his reply, the plaintiff pointed out that the defendant admitted that its acceptance wasn’t identical to his offer.
After a hearing, the trial court agreed with the defendant that he’d complied with the material terms of OCGA § 9-11-67.1 The trial court also sided with the defendant on whether he’d complied with other terms of the plaintiff’s offer. The judge found that, because the offer letter “utilized the passive voice” — by saying that “payment must be received 15 days after the insurance company’ written acceptance of this offer” — it merely required that the plaintiff receive the settlement 15 days after acceptance rather than requiring the insurance company to deliver the settlement 15 days after acceptance. In short, the trial court concluded that this condition imposed no duty on the insurance company and reasoned that because the plaintiff “received payment at the time it received the insurance company’ written acceptance,” the plaintiff “therefore … also received payment 15 days after the insurance company’ written acceptance.”
The trial court also explained that the expiration notation on the check didn’t constitute a variance from the offer because OCGA § 11-4-404 doesn’t require a bank to pay on a check that’s presented more than six months after its date. Finally, as to the missing comma, the trial court held that it didn’t change the payee or alter the right to payment; in fact, the trial court concluded that a comma “is not language” and, thus, its absence didn’t constitute a “variance” in the language required by the offer.
Did the Comma Really Matter?
Quoting a 2021 appellate decision, Judge John A. Pipkin of the Georgia Court of Appeals wrote that
There is no enforceable settlement between the parties absent mutual agreement between them. That existing law includes the fundamental principle that an offeror is the master of his or her offer and free to set the terms thereof. An offeror may include terms of acceptance establishing a unilateral contract, whereby an offer calls for acceptance by an act rather than by communication. If an offer calls for an act, it can be accepted only by the doing of the act. If the recipient of a pre-suit offer fails to perform the act required to accept the offer, then the parties do not have a meeting of the minds.
Judge Pipkin said it was clear that the defendant’s purported acceptance “failed to comply with the requirements of the offer as to the performance to be rendered.” Indeed, the trial court didn’t conclude that the defendant’s performance mirrored the terms of the offer. Instead, the order merely explained how or why the defendant may have failed in that task. Likewise, the defendant’s claim on appeal was only that he satisfied the material conditions of the plaintiff’s pre-suit demands and that the plaintiff was attempting to enforce “immaterial and inconsequential details.” In short, Judge Pipkin said there can be no dispute that the defendant failed to comply with one or more “of the precise terms of acceptance of the settlement offer.” Nonetheless, the defendant maintained that this should not bar the conclusion that the parties have an agreement.
Was this a Unilateral Contract?
Relying on general principles of contract law, the defendant argued that a contract is created when parties “agree on the material terms which define their rights and obligations” and that parties need not “necessarily agree on non-material matters for a contract to form.” While this may be typically true of bilateral contracts — in which parties create a contract by expressing their mutual intent to be bound— the type of contract at issue here is “a unilateral contract, whereby an offer calls for acceptance by act rather than by communication[.]” And if an offer calls for an act, it can be accepted only by the doing of the act, the judge explained. The acceptance by act must be “identical” and “without variance of any sort,” Judge Pipkin wrote. Thus, the defendant’ argument that the parties need not agree on “non-material” matters lacked merit.
As the Georgia Supreme Court has explained, this provision “shows that prompt payment may be a term of settlement in a Pre-Suit Offer, as long as the offeror gives the recipient of the offer at least 10 days from the time of written acceptance to make the payment.” (Emphasis supplied). Here, there was no question that the plaintiff’s offer complied with this requirement and afforded the defendant at least 10 days from the date of written acceptance to make payment. But the defendant contended that demanding payment on “15th day after acceptance” isn’t the same as “requiring payment within a specified period.” But, other than that 10-day time frame, OCGA § 9-11-67.1(g) doesn’t prescribe a “specified period” and, absent such a mandate, an offeror remains free to set their own terms. In any event, a day is a period of time — it is a span of 24 hours, a fact the defendant didn’t address.
Indeed, if a party fails to deliver payment in the manner specified in the offer, then that party did not accept the offer, the Judge Pipkin and the Court concluded. Where, like here, “the recipient of a pre-suit offer fails to perform the act required to accept the offer, then the parties do not have a meeting of the minds.” Instead, the purported acceptance of the offer is a counteroffer rather than an acceptance, and no contract is formed. Accordingly, there was no formation of a settlement agreement here, and the trial court erred when it concluded otherwise. For these reasons, the judgment of the trial court was reversed. Pierce v. Banks, 2023 Ga. App. LEXIS 347 (Ga. App. June 28, 2023).
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