Can Acceptance of a Settlement Agreement Have Small Variances?
A Georgia hotel appealed the trial court’s denial of its motion to enforce a settlement agreement with a plaintiff who was attacked on the premises.
Hotel injury with Great Lakes Insurance as the Carrier
The plaintiff filed a personal injury action alleging that he was violently attacked at the hotel and sustained significant injuries. On July 17, 2025, the plaintiff sent the hotel a settlement offer, seeking $300,000, which represented the coverage limits in its insurance policy with Great Lakes Insurance. In the settlement offer, the plaintiff conditioned acceptance on, among other things, delivery of an “Affidavit of No Additional Insurance Coverage, attesting that there was no additional liability coverage available — whether primary, excess, umbrella, or otherwise — that applies to the subject incident or claim.” The offer provided that “the hotel’s failure to strictly comply with each of [the terms of the offer] within the time limits set forth herein will constitute a rejection of [the] offer” and that “[p]artial performance, untimely performance, or any proposed modification of the material terms will be deemed a counteroffer.”
The plaintiff didn’t provide a proposed affidavit to be signed, nor did he specify any particular language required in the affidavit. The deadline for the hotel to accept the offer was 21 days from the date of the letter, and the offer provided that “[p]ayment in full via certified funds must be paid within 10 days after acceptance.” The affidavit was to be delivered with the payment.
On August 7, 2025, the hotel accepted the offer and sent the settlement check to the plaintiff within the time period. In the written acceptance letter, the hotel explained that it would be providing an affidavit of no other insurance as required by the demand that would confirm that no additional liability coverage was available to the hotel in connection with the claim other than the $300,000 limit available under the Great Lakes policy. The hotel subsequently provided the plaintiff with the affidavit of the hotel owner. He attested that Great Lakes issued a policy to the hotel that provided coverage during the relevant time frame and that the hotel had sought coverage under the Great Lakes policy in connection with the incident involving the plaintiff. In addition, she stated that, other than the Great Lakes policy, she wasn’t aware of any insurance policies in effect on the date of the incident that provided coverage.
The plaintiff then told the hotel that the affidavit wasn’t sufficient for acceptance of the settlement offer. Specifically, he said that the hotel owner’s affidavit only indicated that the operator of the hotel was unaware of any other policy, but it didn’t confirm, on behalf of the owner of the property, that there was definitively no other coverage and that “all liability and casualty insurance issued by the recipient that provides coverage or that may provide coverage for the claim at issue has been disclosed’ to our client.” The hotel responded that it believed the affidavit was sufficient and requested assistance in crafting an affidavit that would satisfy the plaintiff. The plaintiff didn’t provide a proposed affidavit, and the hotel didn’t send an additional affidavit.
Ultimately, the plaintiff returned the funds that the hotel sent because it didn’t accept his July 17, 2025 settlement offer “in the manner it required.” The plaintiff pointed in particular to the nonconforming affidavit of no additional insurance coverage.
The hotel then filed a motion to enforce the settlement agreement. After a hearing, the trial court denied the hotel’s motion, finding that its affidavit wasn’t in compliance with an express condition of acceptance because “not aware of” is not equivalent to “there is no additional” insurance coverage. The trial court stated it was constrained to follow precedent requiring “exact literal compliance” in order to accept a settlement offer, citing the Court of Appeals’ decision in Wright v. Spearman (2025). In that case, the Court affirmed the trial court’s conclusion that the defendant’s alteration of the release document sent with the plaintiffs’ settlement offer constituted a counteroffer rather than an acceptance. Specifically, the defendant insurer’s inclusion of blank notary signature lines (under the space for the plaintiffs’ signatures in the release) constituted a counteroffer and not an acceptance of the plaintiffs’ settlement offer, as it imposed a new condition of notarization that varied from the precise terms of the offer.
Settlement Agreements are contracts
Judge Elizabeth Gobeil explained that settlement agreements must meet the same requirements of formation and enforceability as other contracts. There’s no enforceable settlement between the parties without mutual agreement between them. Existing law includes the fundamental principle that an offeror is the master of his or her offer and free to set its terms. An offeror may include terms of acceptance establishing a unilateral contract, where 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 don’t have a meeting of the minds.
An answer to an offer won’t amount to an acceptance, so as to result in a contract, unless it’s unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without any variance. No contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means there’s no agreement to be enforced.
Judge Gobeil further explained that “an offeree’s failure to comply with the precise terms of an offer is generally fatal to the formation of a valid contract, and that “the unambiguous terms of a settlement agreement must be strictly enforced and cannot be modified by the trial court.” The party asserting the existence of a contract has the burden of proving its existence and its terms.”
Here, the plaintiff conditioned acceptance of his settlement offer on, among other things, receipt of an affidavit from the hotel attesting that there was no other additional liability coverage available that applied to the subject incident or claim—in other words, the affirmative non-existence of a fact. However, the hotel didn’t provide an affidavit that affirmatively stated that there wasn’t any other available insurance, but rather avowed only that the hotel owner wasn’t aware of any other insurance that might “provide coverage in connection with the incident.” Judge Gobeil said that this wasn’t “identical” and “without variance of any sort” to the plaintiff’s offer. The hotel’s affidavit didn’t provide the specific assurance that there was no other insurance, but rather provided a confirmation of the owner’s present lack of awareness of a fact.
The Court of Appeals has held that an offeree must comply with even “stringent” or “petty” conditions imposed within an offer to settle, particularly where, as here, the offer explicitly states that the offeree’s “failure to strictly comply with each of these terms … will constitute a rejection” and that “any modification of the material terms will be deemed a counteroffer.” Furthermore, and despite differing perspectives on what ensued after the plaintiff told the hotel of an insufficient affidavit, the hotel didn’t provide an additional affidavit to correct the defects noted in the plaintiff’s letter.
As Judge McFadden expressed in his concurrence in Wright v. Nelson, “plaintiffs sometimes structure offers not to reach settlements, but rather to elicit rejections. In the end, we must rely on the terms of the offer, which in this instance — we are constrained to find — support affirming the trial court.
Here, the hotel didn’t show that there was acceptance without variance resulting in an enforceable settlement agreement. As such, the Court of Appeals affirmed the trial court’s denial of the hotel’s motion to enforce the settlement agreement. Glenwood Motel Enter., Inc. v. Martin, 2026 Ga. App. LEXIS 453 *; 2026 LX 544786; 2026 WL 2858301 (Ga. App. September 23, 2026).
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