White v. Cheek

360 Ga.App. 557

859 S.E.2d 104

WHITE

v.CHEEK.

A21A0212

Court of Appeals of Georgia.

May 21, 2021

Reconsideration Denied July 12, 2021

Certiorari Denied February 1, 2022

Lee Malcolm Gillis Jr., Macon, Colin Dang Delaney, Edward H. Wasmuth Jr., Leah Ward Sears, Sasha Nina Greenberg, Atlanta, for Appellant.

Ben C. Brodhead III, Ashley Brooke Fournet, John Wesley Ingram Nichols, Atlanta, for Appellee.

Rickman, Presiding Judge.

This appeal concerns a personal injury action arising from an automobile accident involving Stephan Duwayne White and Walter Cheek. White appeals from the trial court's denial of his motion to enforce a settlement. White contends that the trial court erred by holding that oral communications on White's behalf constituted a counter-offer, and thus an enforceable settlement agreement was never formed between the parties. For the reasons that follow, we affirm.

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 and punctuation omitted.) Pritchard v. Mendoza , 357 Ga. App. 283, 283-284, 850 S.E.2d 472 (2020).

So viewed, the record shows that Cheek filed suit against White alleging that while he was a passenger in a automobile driven by White, White lost control of the automobile and caused a collision that resulted in injuries to Cheek. GEICO was White's liability insurance carrier. On January 10, 2019, Cheek's counsel sent GEICO a letter containing an offer of compromise governed by OCGA § 9-11-67.1.¹ The offer provided in pertinent part:

1. The time period within which the material terms pursuant to OCGA § 9-11-67.1 (a) must be accepted is thirty-five (35) days from your receipt of this offer;

2. The amount of monetary payment is GEICO's liability policy limit of $25,000 ....;

3. The party that Mr. Cheek will release is Stephan D. White;

4. The type of release that Mr. Cheek will provide to Mr. White is a General Release that releases "all personal and bodily injury claims of Mr. Cheek," ...;

5. The claims to be released by Mr. Cheek pursuant to a General Release are "all personal and bodily injury claims of Mr. Cheek," ...;

Pursuant to OCGA § 9-11-67.1 (b), acceptance of the material terms made pursuant to OCGA § 9-11-67.1 (a) is to be made by providing written acceptance of the material terms outlined immediately above pursuant OCGA § 9-11-67.1 (a) in their entirety.

Providing written acceptance of the material terms outlined immediately above pursuant to OCGA § 9-11-67.1 (a) in their entirety is necessary to form a binding settlement contract, but it is not sufficient to form a binding settlement contract. In addition to the above ... the following ACTS are material to acceptance and must be completed to form a binding settlement contract, and completion of each and every one of the following ACTS without a variance of any sort is required as a material term of this written offer of compromise in addition to the material terms stated above pursuant to OCGA § 9-11-67.1 (a) :

1. Pursuant to OCGA § 9-11-67.1 (g), payment is required within fifteen (15) days after the written acceptance of this offer of compromise.....

2. Your insured must provide a sworn and notarized statement that there is no other insurance coverage available to him that could pertain to this loss....

3. All communications to this firm initiated by or on behalf of your insurance company or your insured relating to this offer of compromise must be made in writing . If a communication to this firm relating to this offer of compromise is initiated by or on behalf of your insurance company or your insured in any form other than writing, that will be a rejection of this offer of compromise.... Any offer to resolve this case by Mr. Cheek will be made in writing. Any acceptance of this offer must be made through performance of the acts required in this offer of compromise in addition to written acceptance of the material terms of this offer made pursuant to OCGA § 9-11-67.1 (a) in order for this firm and Mr. Cheek to agree that a binding agreement has been formed. Specifically, this offer of compromise cannot be accepted by a mere statement of unconditional acceptance of this offer; instead acceptance of this offer requires full performance of all ACTS required herein without variance of any sort in addition to written acceptance of the material terms of this offer made pursuant OCGA § 9-11-67.1 (a). If any condition or requirement is not met by the specified deadline or if any additional terms, conditions, or representatives are requested of Mr. Cheek or included in the release by GEICO, then there has been no acceptance and no agreement, and this offer will be immediately and automatically withdrawn.

4. Since GEICO will require Mr. Cheek to sign a release of its insured, that release must fully comply with each and every term and condition of this offer....

(Emphasis in original). The letter containing the offer of compromise also stated that, "in the unlikely event that GEICO needs any additional information regarding liability or damages to complete its evaluation of this claim, please contact me in writing to let me know. I will do my best to answer any questions you could possibly have."

Despite the requirement in the offer for all communications from GEICO to Cheek's counsel relating to the offer be in writing, on January 18, 2019, Cheek's counsel received the following voicemail:

Hey this is ... with GEICO insurance, I was calling regarding your client ... Cheek. Just wanted to let you know that I was the new bodily injury adjuster, it looks like there is a question of liability on our insured driver ... White. I am just calling to se if you guys will be able, if you would allow, recorded statements for Mr. Cheek. My phone number is ..., claim number is ... Thank you.

Five days after leaving the first voicemail, Cheek's counsel received another voicemail from GEICO:

Hi this is ... with GEICO ... calling you regarding ... Cheek. A liability claim has been established and assigned to me. It appears that you sent us a notice of policy limits demand, seeking a claim against our insured ... White. I just wanted to call and let you know that the claim for liability investigation has been assigned to me for handling, we'd like to try to secure [a] recorded interview from Mr. Cheek. Our investigation at this point indicates this was a hit and run, so I'm a little confused as to where the liability rests with Mr. White. So maybe if you could shed some light on that. I can be reached at ..., our claim number to reference ... Thank you.

Thereafter, Cheek's counsel sent a letter to GEICO explaining that he had received GEICO's voicemail "relating to the offer of compromise I sent on Mr. Cheek's behalf on January 10, 2019.... [and stating that] [o]bviously, your call makes it clear that GEICO has chosen to reject Mr. Cheek's offer of compromise." Less than a month later, GEICO's counsel sent a letter stating that it was accepting Cheek's January 10, 2019 settlement demand letter and all of its terms. That letter included a $25,000 check payable to Cheek.

In May 2019, Cheek's counsel responded by sending a written reply stating that GEICO declined Cheek's offer of compromise by failing to comply with the terms of the offer and returning GEICO's $25,000 check. Thereafter, White filed a motion to enforce a settlement.

Following a hearing, the trial court issued an order denying White's motion. The trial court held that a condition of acceptance of Cheek's offer was that GEICO could only communicate with Cheek's counsel regarding the offer in writing and that by failing to comply with that condition, GEICO failed to establish an enforceable settlement agreement.

White contends that the trial court erred by holding that an enforceable settlement agreement was never formed between the parties.

Pursuant to OCGA § 9-11-67.1,

(a) Prior to the filing of a civil action, 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 contain the following material terms: (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.

(b) 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.

...

(d) Upon receipt of an offer to settle set forth in subsection (a) of this Code section, 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.

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When interpreting provisions of a statute, such as OCGA § 9-11-67.1,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary

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