Kemper v. BrownKemper v. Brown
Amy Marie Kemper appeals from the trial court’s order granting Christopher Brown’s motion to enforce a settlement agreement in a personal injury action arising from a motor vehicle accident. Kemper contends that Brown did not unconditionally and unambiguously accept her settlement offer, and that his purported acceptance amounted to a counteroffer. For the reasons that follow, we reverse.
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.) Johnson v. DeKalb County,
So viewed, the evidence shows that on March 10, 2012, Kemper was riding her motorcycle when she was struck by a vehicle driven by Brown. Kemper suffered serious injuries and was transported by air to Atlanta Medical Center to receive emergency medical care. Brown was charged with multiple traffic violations, including reckless driving and driving under the influence.
At the time of the accident, Brown had an automobile insurance policy issued by Equity
On May 18, 2012, while Kemper was at the hospital receiving treatment for her injuries, she sent a demand letter to Statewide. The letter provided, in relevant part:
Please send all the insurance money that Mr. Brown had under his insurance policy. In exchange, I will agree to sign a limited release.
The release must not have any language saying that I will have to pay Mr. Brown or his insurance company any of their incurred costs.
The check should be made payable to Amy M Kemper and the check and release must be delivered to my address____ It must be delivered no later than June 8, 2012 (21 days) from today’s date.
If you fail to meet my demand, I will be forced to hire an attorney and sue Mr. Brown and your company. Please do not contact me, or my friends [,] as this demand is very simple.
(Emphasis omitted.)
On June 5, 2012, Statewide sent a letter to Kemper agreeing to settle her claims for the limits of Brown’s liability insurance. Attached to the letter was a $25,000 check and a two-page limited liability release form. The letter stated, in relevant part, “[i]n concluding the settlement, we are entrusting that you place money in an escrow account in regards to any and all liens pending. This demand is being asserted to protect the lien’s interest[.]” The limited liability release form also contained indemnification language providing that Kemper would agree to indemnify Equity and Brown “in the event any entity makes a claim against any one of them either for reimbursement of medical bills or other treatment expenses_incurred for treatment following, and as a result of, said accident, for subrogation or for statutory right of reimbursement.”
On July 31, 2012, Kemper, who had retained counsel, notified Statewide that she considered the June 5,2012 letter to be a counteroffer because it contained a demand that she place settlement funds into an éscrow account. Kemper stated that she was rejecting the counteroffer, and she subsequently filed suit against Brown. Brown answered and filed a motion to enforce the purported‘settlement agreement. The trial court granted Brown’s motion,
1. Kemper contends that the purported settlement agreement was not enforceable because Brown’s response, through Statewide, to her settlement demand was not unconditional or identical to the terms of her offer. In particular, Kemper argues that Statewide’s demand that she place settlement funds into an escrow account constituted a counteroffer. We agree.
The law favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.
(Citation and punctuation omitted.) Johnson, supra,
In deciding whether a purported acceptance imposes conditions rendering it a counteroffer, we must consider whether additional terms are “precatory words.” Torres, supra,
Applying these principles to the facts in this case, we conclude that Statewide’s June 5, 2012 letter to Kemper clearly constituted a counteroffer. In that letter, Statewide demanded that Kemper place settlement funds into an escrow account for the purpose of protecting the interests of any pending liens. Statewide’s response did not merely inquire about the existence of liens against Kemper’s causes of action. See McReynolds v. Krebs,
2. Since we conclude that Statewide’s response was a counteroffer, we need not address Kemper’s other challenges to the purported acceptance. Accordingly, we reverse the trial court’s order granting Brown’s motion to enforce settlement.
Judgment reversed.
Notes
Although Kemper was notified that the matter was set for a hearing, neither she nor counsel appeared at the hearing.
Brown argues that the “demand” to place settlement funds into an escrow account was eliminated when Kemper’s counsel confirmed that she had health insurance and, therefore, there should be no liens filed by any of her medical providers. The fact that Kemper had health insurance did not necessarily, however, preclude a hospital from filing a lien for any unpaid expenses. See MCG Health, Inc. v. Kight,