347 Ga. App. 436
Ga. Ct. App.2018Background
- On Sept. 4, 2016, Duenas (bicyclist) was allegedly struck by Cook’s truck; Cook had a $100,000 bodily-injury policy with Nationwide.
- On Oct. 27, 2016, Duenas sent a time-limited pre-suit settlement offer under OCGA § 9-11-67.1 specifying five material terms and requiring written acceptance of those material terms.
- Nationwide claims its adjuster, Vazquez, told plaintiff’s counsel it would tender policy limits, sent a settlement check and several standard documents (Limited Release, No Medicare Addendum, Lien Affidavit), and communicated about handling property-damage claims.
- Plaintiff’s counsel rejected the additional documents as inconsistent with the offer, insisted Nationwide had not provided the required written acceptance, extended the offer deadline, then ultimately withdrew the offer and returned the check.
- Cook moved to enforce the alleged settlement; the trial court granted the motion and dismissed the case. The Court of Appeals reviewed de novo and reversed, finding no written, unconditional acceptance of the material terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nationwide (on Cook’s behalf) provided the written, unconditional acceptance required by OCGA § 9-11-67.1 | Duenas: no written acceptance of the identical material terms; documents sent changed scope (sought broader release) and thus were counteroffers | Cook/Nationwide: forwarding emails, check, and documents amounted to written acceptance of the offer | Held: No. Writings did not unequivocally accept only the bodily-injury release term; sending broader release and standard forms constituted a variance/counteroffer, so no enforceable settlement |
Key Cases Cited
- Grange Mut. Cas. Co. v. Woodward, 300 Ga. 848 (Supreme Court of Georgia) (pre-suit offer must be accepted in writing as to the five statutory material terms)
- Torres v. Elkin, 317 Ga. App. 135 (Georgia Court of Appeals) (an acceptance must be unconditional and identical to the offer)
- Hansen v. Doan, 320 Ga. App. 609 (Georgia Court of Appeals) (draft or conditional documents can show lack of unequivocal acceptance)
- Penn v. Muktar, 309 Ga. App. 849 (Georgia Court of Appeals) (insurer’s holding of funds pending execution of a broader release defeated a binding settlement)
- Tillman v. Mejabi, 331 Ga. App. 415 (Georgia Court of Appeals) (contrast where provided general release did not materially vary terms of offer)