Does Acceptance of an Auto Insurance Release Need to be EXACTLY the Same as the Offer?

The administrators of the estate of a car accident victim (“the plaintiffs”) sued another motorist, seeking damages arising from an accident that resulted in the death of the victim. The defendant filed a motion to enforce a settlement agreement, which the trial court granted. On appeal, the plaintiffs argued the trial court erred in granting the motion because the insurer’s acceptance wasn’t identical to their offer.


Shortly after midnight on September 19, 2020, the victim was driving westbound on State Route 316 just outside of Athens. About the same time, several other motorists saw the defendant’s vehicle turn onto the westbound lane of 316, but heading eastbound into oncoming traffic. The motorists honked and flashed their headlights to try to alert her, but they were unsuccessful. And not long after that, the defendant’s vehicle collided with the victim’s, resulting in her suffering fatal injuries.

At the time of the accident, the defendant had liability insurance coverage through Progressive Insurance. And on February 11, 2021, the attorney representing the estate administrator and the victim’s parents sent Progressive a time-limited settlement offer, via mail, in accordance with the version of O.C.G.A. § 9-11-67.1 applicable at the time. The offer of compromise was conditioned on being accepted “unequivocally and without variance of any sort.”

On February 25, 2021, Progressive sent a response letter to the plaintiffs’ counsel, noting that it was “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 the plaintiffs’ counsel a check and a release. The check was in the amount of $25,000.00.

On March 30, 2021, the plaintiffs’ counsel sent a letter to Progressive, returning the check, noting that Progressive had rejected the offer of settlement by, among other things, 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, the plaintiffs would be filing a lawsuit, and a few months later, they filed a complaint against the defendant and two Athens area taverns that allegedly served alcoholic beverages to the defendant despite her being noticeably intoxicated.

In response, the defendant filed a motion to enforce settlement, arguing the acceptance to the plaintiffs’ offer of compromise was unequivocal, unconditional, and identical and, thus, a binding agreement was formed. The plaintiffs argued that both the release and the payment varied in several respects from the terms of the offer and, as a result, amounted to a counteroffer at best.

After a hearing on the matter, the trial court granted the defendant’s motion, ruling that Progressive’s release and payment materially complied with the terms of the plaintiffs’ offer. They appealed, claiming that the trial court erred in ruling that Progressive’s acceptance materially complied with the terms of their offer, thus forming a settlement agreement.

The Decision of the Court of Appeals

Presiding Judge Stephen Dillard of the Georgia Court of Appeals wrote that settlement agreements must “meet the same requirements of formation and enforceability as other contracts,” quoting an earlier decision.

Importantly, there’s no enforceable settlement between parties without mutual agreement. That includes the “fundamental principle that an offeror is the master of his or her offer and free to set the terms thereof.” And along those lines, an offeror may include terms of acceptance establishing a “unilateral contract, whereby an offer calls for acceptance by an act rather than by communication.” As such, if an offer “calls for an act, it can be accepted only by the doing of the act.” And 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.”

Here, the plaintiffs argued that the insurance company’s release and payment varied from the terms of their offer in several ways. For example, the plaintiffs asserted that Progressive’s check that said it was “VOID IF NOT PRESENTED WITHIN 90 DAYS” varied from the requirement in their offer that the settlement payment not “include any terms, conditions, descriptions, or representations that are not permitted in the release.” The trial court sided with the defendant that this variance was immaterial and that all financial institutions, under O.C.G.A. § 11-4-404, impose such restrictions on the amount of time checks are negotiable. However, the Court of Appeals found this argument lacking in merit.

The statute cited by the defendant and the trial court, O.C.G.A. § 11-4-404, provides that “a bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than six months after its date, but it may charge its customer’s account for a payment made thereafter in good faith.” And rejecting the argument that an 180-day expiration period on a payment by check—double the length of the expiration period on Progressive’s check here—was required and not at variance from the offer, the Court held in a 2023 decision that the “plain language of that provision does not dictate … that a check is automatically void after 180 days. Instead, that provision merely provides that a bank is under no obligation to pay a check that’s presented 180 days after its date but may do so in good faith. Furthermore, the defendant and Progressive “could have chosen a number of other means to provide payment to the plaintiffs, yet they elected a payment method that … could not have satisfied the terms of the offer.”

When, 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.” And because a purported acceptance of an offer that varies even one term of the original offer is a counteroffer, it was unnecessary to discuss the other instances in which the plaintiffs argued that Progressive’s release and payment varied from the terms of the offer. Indeed, Judge Dillard found that, in light of these circumstances, there was no formation of a settlement agreement, and the trial court erred in granting the defendant’s motion to enforce settlement. The judgment was reversed. Patrick v. Kingston, 2024 Ga. App. LEXIS 53 (Ga. App. February 13, 2024).

Contact Us

Every victim deserves to be represented by an experienced personal injury attorney Atlanta residents trust. To have the best chance of a successful outcome, you should consult with a reputable Atlanta personal injury attorney. Our attorneys have worked with victims all across the state and offer FREE consultations to all prospective clients. Contact an Atlanta personal injury attorney at Tobin Injury Law 24 hours a day, seven days a week by calling 404-JUSTICE (404-587-8423) or by using our online contact form.