Bennett v. Novas

364 Ga.App. 364

874 S.E.2d 871

BENNETT

v.NOVAS.

A22A0361

Court of Appeals of Georgia.

June 17, 2022

Robert Christopher Harrison, Marietta, Amanda Siegel Newquist, for Appellant.

Dustin Eugene Davies, Savannah, Jonathan Andrew Pope, Canton, for Appellee.

Miller, Presiding Judge.

In this interlocutory appeal, Luis Novas filed suit against Ronda Bennett for personal injuries he sustained from a vehicular accident caused by Bennett. Bennett appeals from the trial court's order denying her motion to enforce a settlement agreement, arguing that her insurance carrier's request for clarification of the terms in Novas’ offer did not constitute a counteroffer, and so a binding settlement agreement was reached between the parties. For the reasons that follow, we conclude that there was no binding settlement agreement between the parties, and we affirm the trial court's order denying Bennett's motion to enforce the settlement agreement.

We apply a de novo standard of review to a trial court's order on a motion to enforce a settlement agreement. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the Appellant's case. Thus, we view the evidence in a light most favorable to the nonmoving party.

(Citation omitted.) Yim v. Carr , 349 Ga. App. 892, 900 (2), 827 S.E.2d 685 (2019).

The facts of this case are largely undisputed. In the early evening hours of January 12, 2020, Novas was riding his motorcycle along E.E. Butler Parkway near Gainesville, Georgia. As Novas was traveling straight along the parkway, he stopped at a red traffic light. Bennett, who was traveling along E.E. Butler Parkway from the opposite direction, approached the same traffic light as Novas and moved into the left turn lane. When the traffic light turned green, Novas proceeded through the intersection and was struck by Bennett as she attempted to make a left turn. The impact of the collision threw Novas from his motorcycle onto the pavement, and he sustained injuries to his pelvis, bladder, ribs, lungs, and stomach.

At the time of the accident, Progressive Mountain Insurance Company ("Progressive Insurance") was the insurance provider for John Bennett, who was the named insured under the policy while Ronda Bennett was listed as a driver under the policy. On June 4, 2020, Novas sent a letter to Progressive Insurance, proposing to settle his claims against the company and Ronda Bennett. Specifically, the letter stated in part:

I would like to resolve my personal injury claim against Ronda Bennett and [Progressive Insurance]. I will give you thirty days from the date you receive this letter according to the green return receipt provided by the postal service to accept this offer. Your acceptance of this offer must be made in writing to me, Luis Melendez Novas[.] ... I seek the full $25,000.00 liability insurance policy limit. In exchange for the policy limit, I will release all claims I have against Ronda Bennett and [Progressive Insurance] subject to a limited liability release based on Georgia Code Section 33-24-41.1 that will allow me to pursue other insurance coverage from other insurance companies and policies if any exist. This offer is contingent upon execution of an affidavit by [Progressive Insurance] that there are no other insurance policies that provide coverage for this wreck. I am making this offer based on Georgia Code Section 9-11-67.1 .... Payment must be made to me within 10 days after your written acceptance of my offer to settle.

On June 10, 2020, Progressive Insurance sent a letter to Novas, acknowledging Novas’ offer to settle his claims against Bennett and Progressive Insurance. Progressive Insurance then stated in the letter that John Bennett was the insured under the policy, and posed the following question to Novas: "Could you please clarify if John F. Bennett can also be named on the limited liability release?" Novas did not initially respond to this letter. On July 7, 2020, Progressive Insurance sent Novas a letter "accepting" Novas’ offer, along with a check for $25,000 and an affidavit stating that there were no other policies that could provide coverage for the accident. Novas returned the check to Progressive Insurance and informed Progressive Insurance that it had failed to properly accept his offer because its request to add John Bennett to the release constituted a counteroffer.

Novas subsequently filed suit a negligence action against Bennett. Bennett answered the complaint and filed a motion to enforce the settlement agreement, arguing that a binding settlement agreement was reached between the parties. The trial court denied the motion after a hearing, concluding that Progressive Insurance's response letter to Novas requesting to add John Bennett to the release constituted a counteroffer. The trial court certified its ruling for immediate review, and this interlocutory appeal followed.

In her sole enumeration of error, Bennett argues that the trial court erred by denying her motion to enforce the settlement agreement because Progressive Insurance's response letter to Novas merely sought clarification of the terms of Novas’ offer in accordance with OCGA § 9-11-67.1 and that Novas’ offer was unequivocally accepted without variance. We conclude that Progressive Insurance's response letter constituted a counteroffer and that Novas’ offer was not unequivocally accepted.

(a) As to Bennett's claim that Progressive Insurance's response letter was an attempt to seek clarification, we first note that

[u]nder Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense. An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort. No contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means there is no agreement to be enforced. In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party's intention is deemed to be that meaning a reasonable person in the position of the other contracting party would ascribe to the first party's manifestations of assent.

(Citation omitted; emphasis supplied.) Wright v. Nelson , 358 Ga. App. 871, 874, 856 S.E.2d 421 (2021).

OCGA § 9-11-67.1 delineates the essential terms that must be present in an offer to settle, and they include:

(1) The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of the offer; (2) Amount of monetary payment; (3) The party or parties the claimant or claimants will release if such offer is accepted; (4) The type of release, if any, the claimant or claimants will provide to each releasee; and (5) The claims to be released.

OCGA § 9-11-67.1 (a) (1) - (5) (2013).¹ After receiving an offer to settle, "the recipients shall have the right to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts. An attempt to seek reasonable clarification shall not be deemed a counteroffer." OCGA § 9-11-67.1 (d) (2013). However, "[a] purported acceptance of a plaintiff's settlement offer which imposes conditions or attempts to release parties other than the named defendant-offeree will be construed as a counter-offer to the offer to settle for the policy limits. " (Emphasis supplied.) Herring v. Dunning , 213 Ga. App. 695, 698, 446 S.E.2d 199 (1994) ; see also Pritchard v. Mendoza , 357 Ga. App. 283, 288, 850 S.E.2d 472 (2020) ("A purported acceptance of an offer that varies even one term of the original offer is a counteroffer.") (citation omitted).

The facts of this case bear some resemblance to Yim v. Carr , 349 Ga. App. 892, 827 S.E.2d 685 (2019). There, the plaintiff offered to settle her claims against the defendant that arose from a traffic accident, and she sent the defendant a limited liability release stating that only he would be released from her claims. Id. at 900-901 (2), 827 S.E.2d 685. The defendant's insurance carrier then sent the plaintiff a letter purporting to accept the plaintiff's offer, but the letter also referenced the named insureds on the policy and requested that the plaintiff contact the insurance carrier to discuss the release as it pertained to the named insureds. Id. at 902 (2), 827 S.E.2d 685. On appeal, we reversed the trial court's order granting the insurance carrier's motion to enforce the settlement agreement and concluded that the insurance carrier "wanted to negotiate ... over the inclusion of [the named insureds] in the release." Id. at 905 (2), 827 S.E.2d 685.

Here, Novas sent a letter to Progressive Insurance offering to settle his claims against Bennett and Progressive Insurance for $25,000 in exchange for a limited liability release. In the offer letter, Novas twice identified the only two parties against which he wished to settle his claims: Bennett and Progressive Insurance. Specifically, Novas stated in the letter that he desired "to resolve [his] personal injury claim against Ronda Bennett and [Progressive Insurance]," and that in exchange for the policy limit, he would "release all claims [he] ha[d] against Ronda Bennett and [Progressive Insurance]."...