Can a Settlement Agreement Be Enforced if An Insurer Doesn’t “Unequivocally and Identically” Accept an Accident Victim’s Offer?
A motorcyclist sued the driver of a vehicle, along with others, seeking damages arising from a motor vehicle collision that resulted in injuries to the plaintiff. Subsequently, the defendant filed a motion to enforce a settlement agreement, which the trial court granted after a hearing, dismissing the claims against the defendant with prejudice.
On appeal, the plaintiff argued that the trial court erred in granting the motion because the defendant’s insurer didn’t unequivocally and identically accept his offer of compromise.
Background
On April 23, 2022, the plaintiff was injured when the motorcycle he was riding collided with the car the defendant was driving as she attempted to make a left turn from Cobb Parkway onto a side street.
The defendant had liability insurance coverage through Liberty Mutual. In a December 2023 letter, the plaintiff’s attorney sent an offer of compromise to the insurance company pursuant to O.C.G.A. § 9-11-67.1, which governs offers to settle tort claims for personal injury, bodily injury, or death arising from a motor vehicle collision. The offer—which was conditioned on being accepted “unequivocally and without variance of any sort”—provided, in part, as follows:
Though written acceptance is necessary to form a binding settlement contract, it is not sufficient to form a binding settlement contract. Rather, … these ACTS must be performed in addition to written acceptance:
Under O.C.G.A. § 9-11-67.1(g), payment for your entire insured’s individual bodily injury policy limits of $25,000 must be received by this firm no later than 40 days after receipt of this written offer. If Liberty Mutual does not perform the act of delivering a payment that complies with each and every condition of this offer, the offer has not been accepted, and there is no agreement.
The offer also included a footnote that stated pursuant to O.C.G.A. § 9-11-67.1(f), Liberty Mutual may pay by cash, money order, wire transfer, cashier’s check, bank check, or electronic funds transfer or other method of electronic payment. Also, regardless of the payment method chosen, the funds must be immediately available to the plaintiff. For example, if Liberty Mutual sends any type of check listed above, that check must have the ability to be immediately cashed for the benefit of the plaintiff. This is a material term of this offer due to the plaintiff’s need to immediately access these funds.
Liberty Mutual sent a response letter in January 2024 stating that it was “accepting the demand unequivocally and without variance of any sort.” The insurance company also sent the plaintiff’s attorney a check dated January 16, 2024, from Citibank. In a January 29, 2024 letter to Liberty Mutual, the attorney suggested that the purported acceptance failed to comply with the terms of the plaintiff’s demand because Liberty Mutual sent a check drawn from Citibank, an out-of-state bank, and the funds weren’t immediately available to the plaintiff. As a result, there was no acceptance under Georgia law.
The plaintiff then filed the underlying action that led to this appeal.
The plaintiff asserted that the trial court erred by granting the defendant’s motion to enforce the settlement agreement because Liberty Mutual never accepted the offer. Specifically, the insurance company failed to perform one of the acts the plaintiff argued was necessary for acceptance, paying with funds that were “immediately available.” The plaintiff contended the funds weren’t “immediately available” because the check was drawn on an out-of-state bank that had no branches in Georgia and required a hold at Truist Bank.
The applicable version of O.C.G.A. § 9-11-67.1(a) states:
(a) Prior to the filing of an answer, 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: (1) Shall contain the following material terms: (A) The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of the offer; (B) Amount of monetary payment; (C) The party or parties the claimant or claimants will release if such offer is accepted; (D) For any type of release, whether the release is full or limited and an itemization of what the claimant or claimants will provide to each releasee; and (E) The claims to be released.
The statute further provides that:
(b) (1) Unless otherwise agreed by both the offeror and the recipients in writing, the terms outlined in subsection (a) of this Code section shall be the only terms which can be included in an offer to settle made under this Code section. (2) 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.
The Court of Appeals
Judge J. Wade Padgett wrote that whether a settlement is an enforceable agreement is a question of law for the trial court to decide. Moreover, he said that the law favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced. The party asserting the existence of a contract has the burden of proving its existence and its terms. Finally, when a court considers the meaning of a statute, the judge wrote that we must presume that the General Assembly meant what it said and said what it meant.
The plaintiff argued that Liberty Mutual, by not providing payment that was “immediately available” to the plaintiff, failed to accept the offer. Judge Padgett and the Court of Appeals panel disagreed and concluded that Liberty Mutual did accept the offer.
The plaintiff expressly made the offer “pursuant to” the 2021 version of O.C.G.A. § 9-11-67.1. Consistent with the statute, he gave Liberty Mutual 30 days to accept the offer in writing, and 40 days to pay the policy limits. Also consistent with the statute, he said Liberty Mutual could elect any of the six means of payment expressly authorized by the statute. The insurance company delivered a timely, written acceptance of the offer, and it elected to pay with a check drawn on Citibank a means expressly authorized by the statute and which was among the payment options listed in the settlement offer that Liberty Mutual delivered to the plaintiff’s counsel 10 days before the deadline set in the plaintiff’s settlement offer.
When the plaintiff’s counsel received the settlement check 10 days before the deadline set by the offer, no attempt was made to present it for payment at the bank where the attorney had his trust account.
Instead, he waited 11 days and then told Liberty Mutual that he’d failed to accept the offer because his bank wouldn’t make funds “immediately available” on a Citibank check. The attorney explained that a bank policy stated that it wouldn’t make funds “immediately available” for any check drawn on any bank, even one drawn on the bank itself. If the plaintiff had presented the check promptly upon its delivery to his attorney, the bank would’ve made the funds available in the ordinary course of banking—well before the deadline for Liberty Mutual to make the settlement payment. Under these circumstances, the Court of Appeals concluded that a settlement agreement was reached and that Liberty Mutual’s performance met the terms addressed within the settlement agreement.
As such, the Court of Appeals affirmed the trial court’s order granting the defendant’s motion to enforce the settlement. Square v. Woods, 2025 Ga. App. LEXIS 185 (Ga. App. May 13, 2025).
Speak with us for a free consultation
Knowing the law and hiring a knowledgeable Georgia car accident lawyer makes a significant difference in determining if a settlement is equitable and addresses all your needs. Contact an experienced Atlanta personal injury lawyer Atlanta residents trust every day. Please know that every consultation with Tobin Injury Law is 100% confidential and 100% free. We’ve worked with accidents victims all across the state to success.
Contact an Atlanta personal injury lawyer at Tobin Injury Law 24 hours a day, seven days a week by calling 404-JUSTICE (404-587-8423) or reach out through our online contact form.