17 Fla. L. Weekly Supp. 780a
Online Reference: FLWSUPP 1709JAMEInsurance — Automobile — Affirmative defenses — Compromise and settlement — Affirmative defense asserting that there was compromise and settlement before commencement of action is dismissed where defense is contradicted by attachment showing that insurer did not pay policy limits demanded in presuit demand letter until 3 ½ months after suit was filed — Further, by time of insurer’s alleged acceptance, offer had expired by its own terms or by passage of reasonable time and had been revoked by plaintiffs’ filing of suit
ROBERT W. JAMERSON and his wife, RACHEL JAMERSON, Plaintiffs, vs. SHONA F. BAILEY, Defendant. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 09-CA-15414, Division CV-D. April 22, 2010. Jean M. Johnson, Judge. Counsel: Curry G. Pajcic and Benjamin E. Richard, Pajcic & Pajcic, P.A., for Plaintiffs. Shane T. Costello and J. Stephen O’Hara, Jr, O’Hara Law Firm, for Defendant.
ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS DEFENDANT’S AFFIRMATIVE DEFENSE NUMBER 12 ALLEGING SETTLEMENT
This cause came on to be heard on April 6, 2010, upon Plaintiffs’ Motion to Dismiss Defendant’s Affirmative Defense Number 12 Alleging Settlement, filed February 22, 2010. The Court having benefited from argument of counsel, reviewed Defendant’s Memorandum of Law in Opposition to Plaintiffs’ Motion to Dismiss filed April 5, 2010, and being otherwise fully advised in the premises herein, finds as follows:
I. RELEVANT FACTS
1. On July 8, 2009, Defendant, Shona Bailey, was involved in an automobile collision with Plaintiff, Robert Jamerson. See (Compl. ¶ 5).
2. On August 19, 2009, Robert and Rachel Jamerson (hereinafter “Plaintiffs”) sent a handwritten letter to the Defendant’s liability insurer, GEICO, itemizing their losses and seeking payment pursuant to the Defendant’s policy. A copy of this letter was attached to the Defendant’s Answer and provides in part: “Can we get the money in the next 3/4 weeks? We will sign any papers you need.”
3. On October 7, 2009, Plaintiffs filed suit.
4. Defendant Bailey was served with the lawsuit on January 10, 2010.
5. On January 20, 2010, in a letter addressed to Plaintiffs’ counsel, aGEICO agent wrote, in part, as follows: “Please be advised that the above file was transferred to me for handling. I understand that you have filed suit and that our insured was recently served with suit papers. Based upon the limited information that I was able to ascertain yesterday from one of the witnesses to this accident, we are tendering our insureds’ $10,000 Bodily Injury and $10,000 Property Damage limits to your client. Our checks representing the same are enclosed.” A copy of this letter was also attached to the Defendant’s Answer.
6. On February 4, 2010, Defendant filed her Answer and Affirmative Defenses. Affirmative Defense 12 asserts that:
Before commencement of this action, Plaintiffs’ claims for bodily injury damages and property damage were compromised and settled. A letter dated August 19, 2009, executed by Robert Jamerson and Rachel Jamerson and addressed to GEICO, requests “all of Ms. Bailey’s injury insurance money.” It further requests money for the property damage to Mr. Jamerson’s motorcycle and for “the things [he] lost in the accident.” A copy of this letter is attached to Defendant’s Answer as Exhibit A. In a letter dated January 20, 2010, from GEICO to Plaintiffs’ counsel, GEICO accepted this offer by tendering its insured’s $10,000 Bodily Injury and $10,000 Property Damage limits. A copy of this letter is attached to Defendant’s Answer as Exhibit B.
Affirmative Defense No. 12.
II. LEGAL ARGUMENTS:Within the four corners of the pleadings, and taking all reasonable inferences drawn therefrom in favor of the Defendant, the parties do not disagree about the facts before the Court at this stage in the litigation. Plaintiffs argue that, on the undisputed facts at issue, Affirmative Defense 12 of “Settlement” should be dismissed on three separate and independent grounds:
A. Plaintiffs’ Arguments
1. The Offer Expired by its Terms After Three to Four Weeks.
7. First, Plaintiffs argue that the August 19, 2009-offer was time limited on its face to three to four weeks, and since there was clearly no acceptance within that window, there can be no contract of settlement. “An offeree’s power of acceptance is terminated at the time specified in the offer[.]” Restatement (Second) of Contracts § 41(1). As the Fifth District explained in Sullivan v. Economic Research Properties, 455 So. 2d 630 (Fla. 5th DCA 1984):
There can be no question that when an offer is made for a time limited in the offer itself, no acceptance afterwards will make it binding. Any offer without consideration may be withdrawn at any time before acceptance; and an offer which in its terms limits the time of acceptance is withdrawn by the expiration of the time.
Id. at631 (quoting in Waterman v. Banks, 144 U.S. 394 (1892)) (emphasis added).
2. Defendant’s Power ofAcceptance had Terminated by Expiration of “Reasonable Time.”
8. Plaintiffs next argue that, even if the August 19, 2009-offer had not been time limited, there would still be no contract of settlement because a “reasonable time” for acceptance of the offer had expired, and Defendant’s power of acceptance had terminated when it finally sent the January 20, 2010-letter, some five months and 1 day later. “An offeree’s power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.” Restatement (Second) of Contracts § 41(1). See Lance v. Martinez-Arango, 251 So. 2d 707, 709 (Fla. 3d DCA 1971) (“The law is well settled that where an offer or counter-offer is made, it must be accepted within a reasonable time.”). The Lance Court held that “[a] seven day delay [in placing money in escrow for real estate sale] may be reasonable as a matter of law.”).
9. In Crellin Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1 (1st Cir. 1994), the court addressed a factual situation wherein a lender’s document submission to a potential borrower did not contain an express time limitation, and the borrower did not act on the offer for four months. Citing the restatement, the Crellin Court held that the offer lapsed as a matter of law when not affirmatively responded to for four months. See id. at 9. “It is hornbook law that an offeree’s power of acceptance vanishes at the time specified in the offer, and if no deadline is prescribed, ‘at the end of a reasonable time.’ ” Id. (citing Mathewson Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 853 (1st Cir. 1987) quoting Restatement (Second) of Contracts § 41(1)).
3. The “Offer” was Revoked When Plaintiffs took Defnite Action Inconsistent with an Intention to Enter the Proposed Contract — and GEICO Admittedly Learned the Same.
10. Plaintiffs argue that — even if the offer had not been time limited to three to four weeks during which window Defendant admittedly never accepted the offer, and even if a “reasonable time” had not already expired and terminated Defendant’s power of acceptance due to the passage of five months and one day from the date of the offer — the “Offer” was revoked when Plaintiffs took definite action inconsistent with an intention to enter the proposed contract and Defendant admittedly learned Plaintiff had filed suit and served Defendant. “An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.” Restatement (Second) of Contracts § 43.
11. Even assuming that the offer was still open prior to the time the lawsuit was filed on October 7, 2009, the filing of the lawsuit and GEICO’s admitted knowledge of process being served on its insured on January 10, 2010, revoked the offer as a matter of law. In Wilson v. Sand Mountain Funeral Home, Inc., 739 So. 2d 1123, 1125 (Ala. Ct. App. 1999), a corporation offered to settle a dispute with a shareholder by purchasing a shareholder’s stock at a certain price. When its offer was not accepted, the corporation filed suit against the shareholder. After suit was filed, the shareholder attempted to accept the offer and moved to compel settlement. Holding that the shareholder’s power of acceptance was terminated as a matter of law upon service with the lawsuit, the appellate court explained:
“Sand Mountain’s action in suing Wilson . . . constitutes a ‘definite action inconsistent with an intention to enter into the proposed contract.’ Thus, Wilson’s power of acceptance was terminated when he was served with the lawsuit.”
Id. at 1125 (quoting and citing Restatement (Second) of Contracts § 43) (emphasis added).
B. Defendant’s Arguments
12. Defendant argued that a motion to dismiss an affirmative defense is procedurally improper, and urged the Court to instead treat the Plaintiff’s Motion as a motion for partial summary judgment or partial judgment on the pleadings. The Defendant relied on the cases of Hanson v. Maxfield, 23 So. 3d 136 737 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2246a] and Mayflower, Inc. v. Suskind, 112 So. 2d 394 (Fla. 3d DCA 1959). Defendant contended that because the Court was required to treat the motion to dismiss the affirmative defense as a motion for partial summary judgment, Defendant was entitled to attempt to discover some evidence to contradict the documents Defendant attached to her Answer, before the Court could rule on the merits of the Plaintiffs’ Motion.
13. Defendant argued that the 3-4 week period was not sufficiently definite and was more like “a hope or a wish” than a condition, and, accordingly, the offer remained open for a “reasonable time.” Defendant further asserted that five months and one day could be deemed a reasonable time to accept an offer to settle, and that filing a lawsuit against the Defendant would not necessarily apprise GEICO that the Plaintiffs had revoked their offer to settle.
IV. ANALYSIS & CONCLUSION
14. The parties agree that the Court’s consideration is limited to the four-corners of the pleadings and the attachments thereto. What the parties disagree on is whether the pleadings and allegations therein allege a valid affirmative defense of settlement under Florida law. The documents attached to the Answer unequivocally establish that the underlying factual assertions within Affirmative Defense 12 are incorrect. Defendants allege that there was a compromise and settlement “before commencement of this action.” However, the attachments leave no doubt that this action was filed approximately 3 ½ months prior to the date of the alleged compromise. On this ground alone the Motion to Dismiss would have to be granted. . See, e.g., Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000) [25 Fla. L. Weekly S1102b] (“If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss.”). Furthermore, the Court finds that Defendant’s Affirmative Defense 12 should be dismissed on three separate and independent grounds as well.
15. First, the Plaintiffs’ August 19, 2009-offer was time limited on its face to three to four weeks from the date of the offer. GEICO did not accept the offer within this time window, and the offer expired without being accepted. Therefore, there can be no contract of settlement and the Motion to Dismiss is GRANTED.
16. Second, even if Plaintiffs’ August 19, 2009-offer had not been time limited, GEICO’s power of acceptance terminated due to the expiration of a “reasonable time”, and there was, therefore, no contract established by GEICO’s alleged “acceptance” on January 20, 2010, five months and one day from the date of the offer. Accordingly, the Motion to Dismiss is GRANTED.
17. Finally, even if the offer had not been time limited and even if the power of acceptance had not expired due to passage of a reasonable time, Plaintiffs had taken definite action inconsistent with an intention to enter into the proposed contract by filing suit on October 7, 2009, and GEICO knew about it. Thus, GEICO’s power of acceptance was terminated prior to its alleged acceptance on January 20, 2010, and there was no contract of settlement, and the Motion to Dismiss is GRANTED.
18. Nonetheless, Defendant urges this Court to treat the Plaintiffs’ Motion to Dismiss as a motion for partial summary judgment instead, arguing that a motion to dismiss is not the procedurally correct tool to dispose of an affirmative defense. However, the only case on this issue appears to permit disposal of an affirmative defense via a motion to dismiss, and the defense has cited no decision suggesting that a motion to dismiss is anything but a proper vehicle for disposing of an affirmative defense. See Spillers v. Five Points Guaranty Bank, 335 So. 2d 851, 852 (Fla. 1st DCA 1976) (“The court below granted the bank’s motion to dismiss the four affirmative defenses and portions of the counterclaim.”); see also Striton Properties, Inc. v. City of Jacksonville Beach, 533 So. 2d 1174, 1179 (Fla. 1st DCA 1988) (“Under Florida law, if an attached document negates a pleader’s cause of action, the plain language of the document will control and may be the basis for a motion to dismiss.”).
19. Nonetheless, considering Plaintiffs’ Motion as a motion for partial summary judgment, under the undisputed facts of this case, summary judgment is appropriately GRANTED as to Affirmative Defense 12. “To obtain summary judgment when the defendant has raised an affirmative defense, the plaintiff must either disprove the defense or establish its legal insufficiency.” Tu-Lane Investments, Inc. v. Orr, 889 So. 2d 961, 963 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D2855b] (quoting The Race, Inc. v. Lake & River Rec. Props., Inc., 573. So. 2d 409 (Fla. 1st DCA 1991)).
20. Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. See, e.g., Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “Where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.” Id. at 131 (citations omitted) (emphasis added).
21. Summary judgment is warranted, even though discovery has not been completed, when future discovery will not create a disputed issue of material fact or yield any new information that the trial court would need to make its ruling, and/or when a litigant is seeking to advance a legally invalid defense. See, e.g., Herrera v. Berlo Industries, Inc., 840 So. 2d 272, 273 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D217b] (“Here, future discovery would not yield any new information that the trial court either did not already know, or needed to make its ruling.”); Barco Holdings, LLC v. Terminal Inv. Corp., 967 So. 2d 281, 288-89 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2314a] (“We conclude, as did the trial court, that the issue of whether Bernuth was in default was properly resolved as a matter of law, and therefore discovery would not have unearthed any material facts necessary for the resolution of this issue.”); A & B Discount Lumber & Supply, Inc. v. Mitchell, 799 So. 2d 301, 303 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2405b] (When a non-moving party seeks to undertake discovery in support of a position which is not legally valid, it is proper for the trial court to enter summary judgment before permitting discovery.); see also Crespo v. Florida Entm’t Direct Support Org., Inc., 674 So. 2d 154, 155 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D916c] (“A trial court has the discretion to deny a continuance of a summary judgment hearing where the outstanding discovery items are immaterial to the dispositive issues in the case.”).
22. Applying the law to the facts of this case, the plain language of the documents attached to the Answer establishing as a matter of law that there was no settlement. Accordingly, treating Plaintiffs’ Motion to Dismiss as a motion for partial summary judgment — as urged by Defendant — the Court GRANTS the motion, because no amount of discovery will enable Defendant to survive summary judgment as to Affirmative Defense 12 given the plain language of the settlement documents.
23. Accordingly, Plaintiffs’ Motion to Dismiss is GRANTED, and further, if treated as a motion for summary judgment, the same is GRANTED.
