Hansen v. Doan , 320 Ga. App. 609 ( 2013 )

McMlLLIAN, Judge.

This appeal arises out of defendant/appellee Laura Doan’s successful attempt to enforce a settlement agreement against plaintiff/ appellant Lawrence Hansen in this personal injury action.

The record discloses the following facts relevant to this appeal: On June 22, 2011, Hansen sustained severe injuries when the motorcycle on which he was riding was struck by the automobile Doan was driving. On July 1, 2011, Hansen’s attorney, Keith Bodoh, faxed a letter to Liberty Mutual Fire Insurance Company (Liberty Mutual), Doan’s automobile liability insurance carrier, stating that he represented Hansen and that Hansen’s injuries were “serious”; this letter also included a policy limits disclosure request pursuant to OCGA § 33-3-28.

Less than a week later, Brenda O’Rear, a senior claims specialist with Liberty Mutual, telephoned Bodoh and informed him that Doan had $25,000 in liability coverage. According to Bodoh’s affidavit, he told O’Rear that Hansen had suffered multiple fractures during the collision, requiring hospitalization and surgery, and O’Rear responded by stating that she would need “very few” medical documents before she could tender the policy limits.

On July 11, 2011, Bodoh sent a time-limited settlement demand letter to Liberty Mutual’s registered agent via overnight mail containing the following settlement offer:

Lawrence Hansen . . . will sign a Limited Release with Liberty Mutual... within the meaning of OCGA § 33-24.41.1 for the full $25,000 in liability insurance limits. This will allow Mr. Hansen to avail himself of the $25,000 in underinsured motorist insurance coverage he has available____To be accepted, the OCGA § 33-24-41.1 Limited Release in favor of Laura Henkleman Doan and Liberty Mutual... only (with no indemnity language) and the $25,000 check payable to only Lawrence Hansen and [Bodoh’s law firm] must be received within twelve (12) days of you receiving this demand. The offer is automatically withdrawn if these conditions are not complied with within the time limit.

On July 21, O’Rear sent Bodoh a letter, which did not specifically refer to the settlement offer, requesting an interview with Hansen and medical and wage authorization forms and information. The next day O’Rear telephoned Bodoh and recorded their conversation, and a recording of that conversation was played for the trial court. The transcript of the conversation reveals the following exchange:

O’Rear: I have requested that you send some information into me which you did which would allow me to tender our limits on this case. [As] you recall we have a $25,000 limit and I believe what you sent me is obviously sufficient enough for me to go ahead and pay that limit----I’m looking at your letter here and uh you wanted a limited release which is ... obviously not a problem. Do you have one that you want to use a specific release?

Bodoh: Um no huh-uh.

O’Rear: Okay uh let me see if I have one.

Bodoh: Um can you just um well I um I guess you can just fax me stuff you know.

O’Rear: Uh you mean .. . like a limited release. I only have one . . .

Bodoh: [Inaudible] told him she only had one release.

O’Rear: It may have language in there that you don’t like. Bodoh: Do you have my fax number?

O’Rear: I do.

Bodoh: Probably the best way to deal with stuff.

O’Rear: Yeah let’s see here because uh I believe the only one I have —

Bodoh: [Inaudible] I mean I hate to cut things short. I just have someone that [is] in my office.

[O’Rear apologizes]

O’Rear: [Just today w]as my last day to respond and I really didn’t want to —

Bodoh: I [inaudible] sat down in my office and I really can’t talk right now.

O’Rear: [Laughs] Okay well can I. . . call you back.

Bodoh: We’ll talk later ok.

Later that day O’Rear faxed Bodoh a letter confirming their conversation; that letter provided in pertinent part:

[W]e are agreeing to pay our policy limits of $25,000 to your client. We will also agree to a limited release. You indicated that you did not have a specific release you wanted to use. I am attaching the only limited release that I have which we can tailor to fit your needs. If you would please look it over and make your suggestions on any changes you wish to make then we can iron out those details. Your demand letter also stated the check had to be received in your office within 12 days of receiving the demand [and based on when we received the letter] 12 days would be 07/25/11.1 would like to iron out the details of the settlement today so we can meet your deadlines unless you will agree to let us mail the check to your office. Please get back to me at your earliest convenience so that we may conclude this matter.

Contrary to Bodoh’s demand, the release that was enclosed with the letter contained indemnification language.

O’Rear made several unsuccessful attempts to contact Bodoh over the next several days, and then sent him a letter, dated July 25, 2011, notifying him of her intent to “comply with your demand” by having the check delivered to his office that day. She also stated that “we still need to work out the details of the limited release” and requested that he contact her so they could “conclude this portion of the claim . . . .” She also sent Bodoh another letter that same day, confirming delivery of the check and once again asking him to contact her so they could “get the release out of the way. . . .”

On July 26, 2011, Bodoh notified Liberty Mutual that the settlement offer had been “automatically withdrawn” because Liberty Mutual did not accept the offer within the specified time and because the limited liability release Liberty Mutual “proffered” contained indemnification language. Hansen filed this personal injury action against Doan several days later, and Doan subsequently answered and filed a motion to enforce the purported settlement agreement. Following a hearing, the trial court granted Doan’s motion, and Hansen timely filed this appeal. Having considered Hansen’s contentions on appeal, we now affirm.

Before turning to Hansen’s specific enumerations of error, we take note of these overarching principles:

In reviewing the trial court’s order on both a motion to enforce a settlement agreement and a motion for summary judgment, we apply a de novo standard of review and... view the evidence in a light most favorable to the nonmoving party, t¹] Moreover, well-established principles guide our inquiry into whether the parties entered into a settlement agreement. In order to prevent litigation, compromises of doubtful rights are upheld by general policy. At the same time, courts are certainly limited to those terms upon which the parties themselves have mutually agreed. Indeed, apart from such mutual agreement, no enforceable contract exists between the parties. And settlement agreements must meet the same requirements of formation and enforceability as other contracts. Thus, 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. The offer must be accepted unequivocally and without variance of any sort. And if a purported acceptance of the plaintiff’s settlement offer imposes any new conditions, it constitutes a counteroffer rather than an acceptance. Furthermore, the party asserting the existence of a contract has the burden of proving its existence and its terms.

(Punctuation and footnotes omitted.) Torres v. Elkin, 317 Ga. App. 135,140-141 (730 SE2d 518) (2012). See also Anderson v. Benton, 295 Ga. App. 851, 852 (673 SE2d 338) (2009); Ruskin v. AAF-McQuay, Inc., 284 Ga. App. 49, 51-52 (1) (643 SE2d 333) (2007).

1. Hansen first contends that the trial court erred by enforcing the settlement agreement because Liberty Mutual failed to comply with the “specific and explicit condition precedent” to deliver a limited release that did not contain indemnification language.

An offer may be accepted... either by a promise to do the thing contemplated therein, or by the actual doing of the thing. The offer must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act.

(Citation and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994). Thus, the question here is whether Liberty Mutual’s delivery of a release that contained indemnification language, contrary to Hansen’s settlement demand, constituted an acceptance. Under the particular facts of this case, we conclude that it did.

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 man in the position of the other contracting party would ascribe to the first party’s manifestations of assent. Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982). In making that determination, “the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence. See 1 Williston on Contracts, § 21, 3 Corbin on Contracts, §§ 106, 577.” Cox Broadcasting, supra at 395.

Frickey v. Jones, 280 Ga. 573, 575 (630 SE2d 374) (2006). McReynolds v. Krebs, 290 Ga. 850, 853 (2) (725 SE2d 584) (2012).

Consideration of the extrinsic evidence in this case is particularly instructive. The first communication Bodoh received from Liberty Mutual after he sent his settlement offer was a letter from O’Rear seeking an interview and additional information concerning Hansen’s medical bills and earnings. But a mere request for confirmation does not constitute a counteroffer, e.g., Herring, 213 Ga. App. at 699; see also McReynolds, 290 Ga. at 855 (Melton, J., concurring in part and dissenting in part), and Bodoh conceded at the hearing on the motion to enforce the agreement that he did not “claim this was in response to [the] demand.”

The next communication occurred a day or so later when O’Rear called Bodoh and informed him that she had sufficient information to tender the policy limits. She also stated that it would not be a problem to provide him with the limited release he wanted, and inquired whether he had a release he wanted to use. Bodoh said he did not, and O’Rear informed him that the only one she had “may have language in there that you don’t like.” Bodoh did not directly reply to this comment, but instead asked O’Rear if she had his fax number and indicated that would “probably be the best way to deal with stuff.” Bodoh cut the conversation short when O’Rear again attempted to discuss the specifics of the only release she had to send him, although she did manage to inform him that she was trying to respond to his offer in a timely manner, which she mistakenly believed required her to respond that day.

O’Rear then faxed Bodoh a letter confirming their conversation, specifically inviting him to tailor the release to fit his “needs” and to make “any changes” he wished to make. At no point did she suggest, either in their conversation or the subsequent letters she faxed to Bodoh, that she was proposing release terms different or at variance with the ones he had requested. Further, we discern nothing that would suggest that she intended the release she provided to him to constitute a counteroffer or that Hansen had to sign that particular release as a condition of settlement. To the contrary, O’Rear clearly contemplated that Bodoh would strike through any portions of the release that were unacceptable to him. “[I]t is well settled that the mere inclusion of a release form unacceptable to the plaintiff does not alter the fact that a meeting of the minds has occurred with regard to the terms of the settlement.” Turner v. Williamson, 321 Ga. App. 209 (2) (738 SE2d 712) (2013).

Here, it is clear that Liberty Mutual accepted Hansen’s offer “ ‘unequivocally and without variance of any sort.’ ” Herring, 213 Ga. App. at 698. Further, to the extent that the offer could only be accepted by performance of certain acts, not by a mutual exchange of promises, we believe that the facts here show that Liberty Mutual did perform the acts demanded for acceptance by tendering the policy limits and providing Hansen with a limited liability release with the clear understanding that his attorney could tailor the release to fit his demand. Thus, “a binding contract [was] created, so far as the question of mutuality was concerned.” Douglas v. Austin-Western Road Machinery Co., 180 Ga. 29, 32 (1) (177 SE 912) (1934).

Further, the recent case of Kitchens v. Ezell, 315 Ga. App. 444 (726 SE2d 461) (2012), does not require a different result. First, Kitchens is physical precedent only and not binding. See Court of Appeals Rule 33 (a). And even if Kitchens were binding, it is factually distinguishable. In that case, counsel for the insurer sent the plaintiffs’ counsel two proposed releases that covered claims and parties that were not part of the original settlement offer, but unlike the present case did not specifically invite plaintiff’s counsel to change the releases to conform to the settlement demand. Thus, we do not believe Kitchens applies here. Further, we likewise find the following cases are distinguishable, as parenthetically explained: Frickey, 280 Ga. at 575-576 (no agreement to settle when insurer’s response required an additional act — resolution of all liens); McReynolds, 290 Ga. at 854 (no binding agreement when counsel’s response to settlement offer proposed resolution of liens “as part of this settlement”); Wyatt v. House, 287 Ga. App. 739, 741 (3) (652 SE2d 627) (2007) (no settlement agreement when insurer’s response required a full release rather than the limited release plaintiff wanted).

2. Although Hansen takes issue with the trial court’s reasoning on the issue of timely acceptance, he concedes on appeal that the trial court’s holding that Liberty Mutual met the deadline for delivery of the check to Bodoh’s office should be affirmed under the “right for any reason” rule. See OCGA § 1-3-1 (d) (3) (computation of time).

Judgment affirmed.

Doyle, P. J., Ray and Branch, JJ., concur. Barnes, P. J., Miller, P. J., and McFadden, J., dissent.

1 But see In re Estate of Huff, 287 Ga. App. 614, 614 (652 SE2d 203) (2007) (noting that the “any evidence” standard applies when the trial court has resolved fact issues in deciding the enforceability of a settlement agreement).