This appeal arises from window replacement services performed for insureds of Kemper, an automobile insurance company, by Southern Glass & Plastics Company, Inc., an automobile glass repair and replacement business. Southern Glass contends the trial court erred in granting summary judgment to Kemper on Southern Glass’s action to recover additional payments, determining the parties entered into an enforceable contract. We affirm.
FACTS/PROCEDURAL HISTORY
Southern Glass performed twelve automobile glass replacements for insureds of Kemper. Southern Glass submitted invoices to Kemper, but Kemper only paid part of the amount requested for each automobile. Southern Glass brought an action in magistrate’s court against Kemper for breach of contract, alleging it was owed $2,301.98. Southern Glass contended it had submitted invoices to Kemper for replacing the auto glass in twelve vehicles but Kemper had only paid part of the amount submitted for each vehicle. Kemper filed
Kemper filed a motion for summary judgment, contending Southern Glass was not entitled to full payment because it had billed for more than the parties agreed to and thus Kemper had not breached the contract. Kemper attached to its memorandum in support of its motion for summary judgment an affidavit from Brad Boardman. Boardman stated, “I oversee the national glass program for automobile coverage for Kemper .... ” He further stated, “Kemper handles automobile glass claims through a third-party administrator, Safelite Solutions.” He also indicated, “Kemper reviews industry data for glass claims several times each year and determines whether rates are fair and reasonable for given areas.” Boardman explained:
When Kemper revises its rates, it notifies network and non-network glass shops in advance of the fair and reasonable rates it approves for glass claims. Kemper does not dictate what the shops should charge a customer, Kemper merely informs the shops what it is paying based on the insured’s automobile policy and law.
Additionally, Boardman’s affidavit stated:
Rates are also shared with insured’s [sic] and shops when the insured contacts Kemper, via Safelite, to report the glass claim. A customer service representative at Safelite contacts the shop of the claimant’s choice during the claim call to inform them of the rates before the shop begins working on the claimant’s vehicle.
The affidavit further stated, “After the shop agrees or understands what the rates are being paid by Kemper via Safelite on the phone, the shop receives a referral sheet once again confirming the rates Kemper will pay before [the] shop begins work on the claimant’s vehicle.” Boardman provided, “When the glass work has been completed, Kemper pays the claim based on the rate pre-notified and usually agreed upon by the glass shop.”
Kemper also attached a document dated March 25, 2009, from Safelite Solutions addressed to Southern Glass and refer
W/S LIST: -37.0% LABR: $41.00 PER HOUR
C/T LIST: -37.0% LABR: $41.00 PER HOUR
KIT: $15.00 2KIT: $30.00
H/M KIT: $25.00 H/M 2KIT: $45.00
Additionally, the document provided, “KEMPER has determined the maximum amount of such work is: $483.82[sic] less any applicable deductible amount.” The document also stated, “Performance of services constitutes acceptance of the communicated price and billing instructions.” Kemper attached an auto insurance policy as well. The policy stated, “Our limit of liability for loss will be the lesser of the: 1. Actual cash value of the stolen or damaged property; or 2. Amount necessary to repair or replace the property with other property of like kind and quality.” The policy also stated, “We will pay ... for loss to safety glass on ‘your covered auto’ without applying a deductible.”
Southern Glass filed a memorandum in opposition to Kemper’s motion for summary judgment and submitted an affidavit by its president, Alan S. Epley, stating, “Each time Safelite calls to inform us of the rates, we tell the employee of Safelite that Southern Glass does not accept the quoted rates.” He further stated, “I have informed Safelite on more than one occasion that no contract is created when my company does the work.” Epley also provided, “I have also notified Kemper and other insurance companies, directly or through Safelite, that our only contract is with our customer, the insured[,] and the customer has assigned to Southern Glass its right to receive payment pursuant to the terms of the policy.”
At the hearing on the motion, Kemper stated it had recordings of all the telephone conversations from when Southern Glass and the insured called Safelite and had brought copies to the hearing. Kemper stated it had not attached the transcripts to its memorandum as an exhibit because it did not come up until Southern Glass’s response memorandum, filed two days before the hearing. The trial court took a break to give Southern Glass the opportunity to review the transcripts. After Southern Glass had reviewed the transcripts, Kemper began to address the transcripts, and Southern Glass stated,
Kemper submitted a transcript from a recorded telephone call between an employee of Southern Glass and Safelite, as well as customer Luther McDaniel. In that conversation, Safelite stated, “I just need to know if you accept the job at the following pricing.... NAGS list minus thirty[-]seven percent, labor is $41.00 hourly and $15.00 per kit.” The employee of Southern Glass stated, “We accept the job.” Safelite stated, “Thank you. Your acceptance of the job also indicates that you have accepted these rates and these prices do not include tax or the cost of molding.”
The trial court granted the motion for summary judgment, finding “[t]he existence of a binding enforceable contract is evidenced by transcripts of telephone conversations between [Southern Glass’s] representative (a shop employee), [Southern Glass’s] customer ([Kemper’s] insureds), and [Kemper’s] third[-]party administrator (Safelite Solutions) wherein the glass claim was reported and express offer was made by Safelite on behalf of [Kemper].” The court determined “the telephone transcript evidences not only an express offer on behalf of [Kemper], but also an express acceptance on behalf of [Southern Glass].” The trial court found “[t]he offer was further confirmed in a fax sent by [Kemper’s] third[-] party administrator to [Southern Glass] prior to the work being performed on the customer’s vehicle,” which “also stated: ‘Performance of services constitutes acceptance of the above price and billing instructions.’ ” The court noted:
After [Southern Glass] verbally agreed to [Kemper’s] rates over the telephone and received the work order confirming the rates, it performed the glass work without objection or further communication with [Kemper’s] third[-]party administrator. Thereafter, [Southern Glass] further confirmed its acceptance of [Kemper’s] rates when it accepted and negotiated checks in the amount specified by the work order.
STANDARD OF REVIEW
The purpose of summary judgment is to expedite the disposition of cases not requiring the services of a fact finder. George v. Fabri,
LAW/ANALYSIS
I. Summary Judgment
Southern Glass argues the trial court erred in granting the motion for summary judgment because there was a genuine issue of material fact as Southern Glass disputed the existence of a unilateral contract by Epley’s affidavit and its argument at the summary judgment hearing. We disagree.
A contract is ambiguous when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.
Id. at 68,
“The necessary elements of a contract are an offer, acceptance, and valuable consideration. A valid offer ‘identifies the bargained for exchange and creates a power of acceptance in the offeree.’ ” Sauner v. Pub. Serv. Auth. of S.C.,
The elements for a breach of contract are the existence of the contract, its breach, and the damages caused by such breach. Fuller v. E. Fire & Cas. Ins. Co.,
A few courts across the country have considered a similar issue to the present case. In a North Carolina case:
[T]he trial court based its judgment on three grounds: (1) GMAC[, an insurance company,] complied with the terms of its insurance contract; (2) GMAC paid defendants a glass company,] in accordance with unilateral contracts GMAC entered into -with defendant; and (3) defendant’s actions in cashing checks sent to it by GMAC, knowing that GMAC considered those payments “final,” constituted an accord and satisfaction of any potential claim defendant might assert.
CIM Ins. Corp. v. Cascade Auto Glass, Inc.,
The court noted, “It is a fundamental concept of contract law that the offeror is the master of his offer. He is entitled to require acceptance in precise conformity with his offer before a contract is formed.” Id. (internal quotations marks
The Idaho Supreme Court has also considered a similar issue, finding Farm Bureau Insurance Company clearly stated it would pay the amount it agreed to and it had notified Cascade, a glass company, in advance the rates it would pay for glass repair and replacement. Cascade Auto Glass, Inc. v. Idaho Farm Bureau Ins. Co.,
Cascade had one of three options available to it upon receiving Farm Bureau’s notice: it could simply do the work and accept the amount Farm Bureau had stated it would pay; it could accept the insurance payment and collect the difference from the insured; or it could refuse to perform services for Farm Bureau insureds unless the customer paid it for the work, leaving the customer to seek reimbursement from Farm Bureau.
Id. The court determined, “Cascade was unquestionably on notice of the amount Farm Bureau would pay and, nevertheless, proceeded with the work, knowing there was a limit on the amount it would receive. Farm Bureau paid the amount it had agreed to pay and has fulfilled its obligations under the policy.” Id. The court further found:
[T]he provisions of the insurance policy clearly provide that Farm Bureau can make a unilateral agreement about what amounts it will pay for windshield replacement or repair services. There is no issue of fact that once it made that determination, it provided notice in advance to all of the glass companies. The facts are also undisputed that Cascade accepted these Farm Bureau insured customers, agreed to provide the work, provided materials of like kind and quality, and was paid in full in the amount Farm Bureau had previously indicated it would pay. Therefore, Cascade has been paid all the money to which it wasentitled under the policy and there is no breach of the insurance contract.
Id.
The Washington Court of Appeals has also considered a comparable case, which examines a somewhat different issue. Cascade Auto Glass, Inc. v. Progressive Cas. Ins. Co.,
The Washington Court of Appeals found, “Progressive’s superseding letters clearly signaled that it was no longer willing to pay according to the pricing agreement. Instead, Progressive offered to pay according to its new pricing standards. Cascade accepted Progressive’s offer by performing glass work for Progressive’s insureds.” Id. at 1257-58. “A unilateral contract exists when one party offers to do a certain thing in exchange for the other’s performance, and performance by the other party constitutes acceptance.” Id. at 1258. The court held, “Cascade created binding unilateral contracts each time it repaired or replaced auto glass for Progressive’s insureds after receiving Progressive’s new offer. Progressive owes the amounts it promised to pay in the superseding letters; Cascade is entitled to no more than those amounts.” Id.
The Connecticut Supreme Court has also looked at a similar situation but with differing results. Auto Glass Express, Inc.
According to the plain language of the pricing letters, the only exchange proposed by the defendant is its promise to pay bills timely in exchange for the submission of bills that do not exceed its proposed pricing structure: “Bills that are accurate and are not more than this pricing structure will be paid promptly as submitted.” In fact, the pricing letters, read as a whole, reinforce this interpretation.... The very first paragraph of the pricing letters sets forth the purpose of the letters, namely, “[t]o facilitate timely payment of invoices and avoid misunderstandings____”
Id. at 1273 (emphases added by court).
The court determined:
[N]othing in the language of the pricing letters, either expressly or impliedly, suggests that the mere performance of glass repairs on automobiles insured by the defendant was sufficient to bind the plaintiffs to the defendant’s prices. The pricing letters also do not indicate how the defendant intended to address invoices that did not conform to its pricing standards. The defendant’s statement that its pricing structure represented what it believed to be “fair and reasonable prices for the market” failed to convey any intent that higher prices were unfair or unreasonable and would not be paid. Thus, we agree with the Appellate Court’s observation that “[t]he [pricing] letters, therefore, do not evidence an intention on the part of the defendant not to pay a greater amount, but rather an intention not to pay a greater amount ‘promptly.’ ” Further, the statement in the pricing letter that “[t]he prices listed [superseded] any prior pricing agreements,” sheds no light on what performance was required in order to accept the defendant’s new price terms. Because the plain language of the pricing letters clearly and unambiguously required the plaintiffs to submit invoices that reflected the pricing standards set forth in those letters in order to accept the defendant’s offer of timely payment, and did not restrict the plaintiffs from submitting invoices reflecting higher prices, we need not look beyond the pricing letters to ascertain the defendant’s intent.
The Eighth Circuit Court of Appeals has also undertaken an analysis of an analogous scenario. Alpine Glass, Inc. v. Ill. Farmers Ins. Co.,
The court found:
Even if the blast faxes constituted offers to enter into unilateral contracts, Alpine rejected the offers when its actions failed to conform to the terms of the offer. The June 2002 fax informed the “Shop Owner/Manager” that Farmers had updated its pricing standards. The fax read, “To facilitate timely payment of invoices and avoid misunderstandings, please be sure to price all Farmers Insurance transactions in accordance with the prices indicated below.” After listing the pricing structure and noting that it superseded previous pricing agreements, the document explainedhow to submit invoices and stated that “[b]ills that are accurate and are not more than this pricing structure will be paid promptly as submitted.” Given the language of the document, mere performance of auto-glass work on the vehicles of Farmers’s insureds did not constitute acceptance because the terms of the purported offer required that Alpine submit invoices in accordance with Farmers’s pricing structure. There is no dispute that Alpine’s invoices did not conform with Farmers’s pricing structure.
Id. at 666-67 (alteration by court). The court further provided:
The February 2005 fax included the same information as the June 2002 fax and went on to advise Alpine that it “may consider refusing the job if you are unwilling to provide service at the prices Farmers Insurance has offered above.” The fax also provided that Alpine’s rejection of the pricing terms would not “be binding on us or otherwise require us to pay you additional sums for services rendered” and that if Alpine desired to charge more than the pricing structure permitted, it “must advise our policyholders prior to initiating glass repair/replacement so that they can determine whether they are willing to pay the additional costs for your services.”
Id. at 667. The court determined “mere performance of auto-glass work did not constitute acceptance, and Alpine did not comply with the pricing requirements or the additional terms set forth in Farmers’s purported offer.” Id.
The present case can be distinguished from the Connecticut and the Eighth Circuit cases. In those cases, the courts noted that the company had merely stated that billing at those rates would result in timely payment. The present case is more in line with the North Carolina, Idaho, and Washington cases. In this case, Kemper notified Southern Glass of the rates and stated “performance of services irrevocable constitutes acceptance of the above price and billing instructions.” Additionally, Southern Glass accepted the prices in the phone conversation. By proceeding with the work after receiving notice of the prices via phone conversation and fax, Southern Glass accepted the prices. Southern Glass argues that the court only considered one telephone
II. Introduction of the Transcript
Southern Glass argues the trial court erred in allowing Kemper to submit copies of alleged transcripts of telephone conversations as its introduction was a surprise and extremely prejudicial because it had no opportunity to refute the fact that the employee had no authority to bind the company. It also argues the transcript was not signed or certified. We disagree.
Southern Glass’s memo opposing summary judgment was filed two days before the hearing, and Epley’s affidavit, which is the first time Southern Glass asserted that it had informed Kemper that it rejected its pricing, was also filed two days before the hearing. The court gave Southern Glass a short time to review the documents, and Southern Glass did not request a continuance. Therefore, the trial court did not err in allowing the transcript. Additionally, a unilateral contract was created by Southern Glass’s performing the work on Kemper’s insureds, not by Southern Glass’s verbal response. Thus, the transcript of the conversation did not prejudice Southern Glass. See McCall v. Finley,
CONCLUSION
The trial court did not err in finding no genuine issue of material fact existed and granting summary judgment. Further, any admission of the transcript was not in error. Therefore, the grant of summary judgment is
AFFIRMED.