357 Ga. App. 283
Ga. Ct. App.2020Background
- Nov. 2016: Mendoza allegedly made an improper left turn and collided with Pritchard; Progressive Mountain was Mendoza’s liability carrier.
- Nov. 20, 2018: Pritchard served a time‑limited OCGA § 9‑11‑67.1 pre‑suit offer for Progressive’s $25,000 policy limit and required execution of a narrowly‑drafted general release as an additional, mandatory act of acceptance.
- The offer expressly prohibited any choice‑of‑law/venue/arbitration provisions and prohibited language acknowledging the sufficiency of the consideration; it also stated the insurer’s delivery of a compliant release was required for acceptance and that plaintiff would not revise a non‑complying release.
- Dec. 12, 2018: Progressive sent a check, Mendoza’s affidavit, and a Georgia form general release that included a choice‑of‑law clause and language acknowledging the sufficiency of the consideration.
- Pritchard rejected the tender as a counteroffer, returned the check, and sued Mendoza for negligence; the trial court granted Mendoza’s motion to enforce the purported settlement and dismissed the complaint.
- Court of Appeals reversed, holding no binding settlement because Progressive failed to perform the specific act (deliver the exact release) required by the offer and its release varied from the offer.
Issues
| Issue | Plaintiff's Argument (Pritchard) | Defendant's Argument (Mendoza/Progressive) | Held |
|---|---|---|---|
| Whether a binding settlement was formed by Progressive’s tender | Progressive’s letter + release included prohibited terms (choice‑of‑law, sufficiency language) and thus was a counteroffer, not acceptance | The insurer accepted the §9‑11‑67.1 offer by tendering the policy limits, affidavit, and a general release | Reversed: no binding settlement — the tendered release varied from the offer and thus amounted to a counteroffer |
| Whether Progressive performed the additional acts required by the offer | Pritchard required delivery of a specific, compliant release as a material act; that was not done | Tendering payment plus a release satisfied the offer’s requirements | Held that Progressive did not perform the required act of delivering the exact release, so no meeting of the minds |
Key Cases Cited
- Duenas v. Cook, 347 Ga. App. 436 (standard of review: motion to enforce analyzed like summary judgment)
- Hansen v. Doan, 320 Ga. App. 609 (acceptance must be unconditional and identical to offer)
- Grange Mut. Cas. Co. v. Woodard, 300 Ga. 848 (offeror may require additional acts for acceptance)
- Partain v. Pitts, 338 Ga. App. 298 (an offer calling for an act is accepted only by doing that act)
- Kemper v. Brown, 325 Ga. App. 806 (any variance in terms renders a purported acceptance a counteroffer)
- Yim v. Carr, 349 Ga. App. 892 (where a particular release is specified, failure to accept that release is no acceptance)