18 Fla. L. Weekly Supp. 1154a
Online Reference: FLWSUPP 1811STRI
Insurance — Settlement agreement — Enforcement — Motion to enforce settlement allegedly created by plaintiff’s acceptance of insurer’s offer after insurer rejected counteroffer is denied — Plaintiff’s demand for $475,000 was counteroffer that terminated his power to later accept insurer’s $450,000 offer — Fact that insurer’s adjuster was under impression that $450,000 offer was still on table did not prevent counteroffer from terminating initial offer where adjuster did not communicate that impression to plaintiff after plaintiff’s demand for $475,000
IN RE: The Matter of: JASON N. STRICKLAND, Plaintiff, vs. RICHARD BROWNELL, and ARL, INC., a foreign corporation, Defendants. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 10-CA-019015, Division R. September 6, 2011. Honorable Mark R. Wolfe, Judge. Counsel: Clifton C. Curry, Jr., Curry Law Group, P.A., Brandon, for Plaintiff. Todd M. Fine, Ruberry, Stalamack & Garvey, Chicago, IL, for Defendant.
ORDER DENYING PLAINTIFF’SMOTION TO ENFORCE SETTLEMENT
THIS CAUSE came before the Court on June 27, 2011, and August 19, 2011, on Plaintiff’s Motion to Enforce Settlement. There present were the Plaintiff, Jason N. Strickland, and his counsels, Clifton C. Curry, Jr. and Kenneth R. Matthews; and counsel for the Defendants, Todd M. Fine. This Court having heard the testimony, reviewed the Court’s file, the applicable law, and being otherwise fully advised on the premises, hereby makes the following findings of fact:
On October 11, 2007, the Plaintiff was involved in an automobile accident with the Defendants in the area of State Road 9 in Lake Worth, Palm Beach County, Florida.
1. Thereafter, Plaintiff’s retained counsel, Curry Law Group, engaged in extended pre-suit settlement negotiations with Lincoln General Insurance, the insurer for the Defendants.
2. On or about September 22, 2010, Plaintiff filed suit against the Defendants.
3. On or about February 4, 2011, Plaintiff filed the instant Motion to Enforce Settlement, alleging that the parties had entered into a settlement agreement on March 22, 2010, to settle this matter for $450,000. The Defendants assert that settlement was never reached because there was never a valid acceptance of Defendants’ $450,000 settlement offer.
4. A chronology of the events and communications leading up to and encompassing March 22, 2010, was established through testimony and evidence. The chronology is pertinent to the Court’s determination and is set forth below.
a. On January 28, 2010, Lincoln General, via claims adjuster Joseph Becker, transmitted a written settlement offer in the amount of $450,000 as their “final offer” to Daniel King, Esq. (hereinafter “King”) with Curry Law Group rejecting King’s demand of $500,000. The January 28, 2010 letter was admitted into evidence and is attached as Plaintiff’s Exhibit 1.
b. On March 10, 2010, a new adjuster assigned to the matter, David McQuade (hereinafter “McQuade”), transmitted a letter to King noting that there had been no reply to the January 28, 2010 letter and reiterating the offer for full settlement in the amount of $450,000. McQuade additionally noted that the $450,000 would remain open through April 1, 2010. The March 10, 2010 letter was admitted into evidence and is attached as Plaintiff’s Exhibit 2.
c. On March 12, 2010, McQuade and King had a telephone conference. Both McQuade and King testified that McQuade inquired into whether King had received his March 10, 2010 letter regarding the $450,000. Both are further in agreement that King brought up the amount of $475,000 to settle the case and that this was the first time that number was discussed. This is where the testimony diverges. McQuade testified that King’s request was a demand for $475,000 to which he responded that he would check with his supervisors. King testified that this was merely an inquiry, rather than a demand, as to whether McQuade would be able to get him $475,000.
d. On March 12, 2010, after the telephone conference, King’s assistant sent McQuade an email transmitting a W-9 and memorializing the earlier phone conversation per King’s request. Specifically, the assistant wrote in pertinent part:
“. . . Mr. King has asked me to confirm in writing your telephone conversation with Mr. King earlier today in which you discussed resolution of Mr. Strickland’s personal injury claim for the amount of $475,000.00, a split of the difference between our last demand of $500,000.00 and Lincoln General’s last offer of $450,000.00. Mr Strickland has agreed to accept $475,000.00 as full and complete satisfaction of his personal injury claim with Lincoln General. Please forward your settlement check made payable to Jason Strickland and Curry Law Group, P.A. and the release in the amount of $475,000.00 to our office . . .”
The March 12, 2010 email with attachment was admitted into evidence and is attached as Plaintiff’s Exhibit 3.
e. On March 16, 2010, King sent an email to McQuade stating:
“Dave, Please update me on my compromised demand of $475K to resolve the claim of Jason Strickland. Thank you. Dan”
To which McQuade replied via email:
“Dan I informed Home Office of your demand. Due to vacations, etc I may not have a response until next Monday. I have not forgotten. Regards David McQuade”
The March 16, 2010 emails were admitted into evidence and are attached as Defendants’ Exhibits 1 and 2, respectively.
f. McQuade testified that he thereafter received instructions to reject the $475,000 demand and withdraw the $450,000 offer. McQuade testified that he placed two calls to King on Friday, March 19, 2010, but did not reach him.
g. On Monday, March 22, 2010, King returned McQuade’s call. McQuade testified that he rejected King’s demand for $475,000, withdrew the offer of $450,000, and requested an independent medical examination of the plaintiff. For his part, King testified that, during this time period, he was under the impression that the $450,000 was still outstanding. However, King failed to clearly state the contents or purpose of the telephone conversation. Further solidifying McQuade’s testimony is his email to his supervisor on March 22, 2010, at 11:36 a.m., stating that he spoke with King, rejected the $475,000, and withdrew the offer of $450,000. This email was admitted into evidence and is attached as Defendant’s Exhibit 4.
h. On Monday, March 22, 2010, at 11:43 a.m., approximately 30 minutes after the phone conversation, King’s assistant sent McQuade an email attaching a letter from King. The letter, which was also faxed and mailed, purported to accept the $450,000 offer of March 10, 2010. The March 22, 2010, email with attached letter was admitted into evidence and is attached as Defendant’s Exhibit 5 (the attached letter is labeled Plaintiff’s Exhibit 4). On Monday, March 22, 2010, after receipt of King’s purported acceptance, Edward F. Ruberry, special counsel for Lincoln General, responded to King and declared his “acceptance” to be moot because the offer was withdrawn prior to the time of acceptance. The March 22, 2010 facsimile from Mr. Ruberry is attached as Defendant’s Exhibit 3.
5. For the reasons stated below, the Court finds that King’s request for $475,000 was a counter-offer which terminated his power of acceptance of the $450,000.
6. Specifically, “(a) counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer . . . An offeree’s power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree.” Polk v. BHRGU Avon Properties, LLC, 946 So. 2d 1120, 1123-1124 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D3110b] (Quoting Restatement Second of Contracts §39).
7. On the other hand, “a mere inquiry regarding the possibility of different terms, a request for a better offer, or a comment upon the terms of the offer is ordinarily not a counter-offer. Such responses to an offer may be too tentative or indefinite to be offers of any kind; or they may deal with new matters rather than a substitution for the original offer or their language may manifest an intention to keep the original offer under consideration.” Restatement Second of Contracts.
8. King’s “demand” of $475,000 was a counter-offer to settle the case for that amount. (See Plaintiff’s Exhibit 3 and Defendant’s Exhibit 1). King could have clarified that the $450,000 was still under consideration or that he was merely inquiring as to whether Lincoln General could get more money in a general sense, but he did not. Further, King was not agreeing to the essence of the offer and merely attempting to change the details such as payment date or like matters. Rather, he was attempting to negotiate the main term, the amount of settlement. King therefore rejected the $450,000 by demanding $475,000. He had no power to thereafter accept the offer of $450,000 as it had been terminated by his counter-offer.
9. The Plaintiff argues that McQuade admitted in his testimony that he was under the impression that the $450,000 was still on the table after King made the demand for $475,000.
10. In order for King’s counter-offer to not have terminated his power of acceptance, there would have had to have been some overt manifestation from McQuade to King after the counter-offer was made indicating that the $450,000 was still outstanding or renewed. McQuade testified that, although he may have been under the impression that the $450,000 was still on the table, he never communicated that impression to King after King’s demand for $475,000. Rather, McQuade testified that he told King that he would check with the home office, something that is reiterated in his email of March 16, 2010. (See Defendant’s Exhibit 2). The Court finds that the evidence and McQuade’s testimony credible as to this point.
11. Further, the general rule is that there can only be one offer operating between parties at any given time. If there are alternative offers, there must be a warning to this effect. Specifically, in Polk, the Second DCA stated:
It is often said that a counter-offer is a rejection, and it does have the same effect in terminating the offeree’s power of acceptance. But in other respects a counter-offer differs from a rejection. A counter-offer must be capable of being accepted; it carries negotiations on rather than breaking them off. The termination of the power of acceptance by a counter-offer merely carries out the usual understanding of bargainers that one proposal is dropped when another is taken under consideration; if alternative proposals are to be under consideration at the same time, warning is expected.
Illustration:
1. A offers to B to sell him a parcel of land for $5000, stating that the offer will remain open for thirty days. B replies, “I will pay $4800 for the parcel,” and on A’s declining that, B writes, within the thirty day period, “I accept your offer to sell for $5000.” There is no contract unless . . . A’s reply to the counter-offer manifested an intention to renew his original offer.
Restatement (Second) of Contracts §39, cmt. a (1981). Polk, supra, 946 So.2d at 1124.
12. This illustration to the Restatement Second is very much akin to our scenario. Specifically, since King demanded $475,000 on behalf of the Plaintiff, when McQuade had offered $450,000 to be accepted by April 1, 2010, King was then unable to accept McQuade’s offer even though he attempted to accept it prior to the April 1, 2010 deadline. The illustration also implicitly indicates that a different dollar amount would be a counter-offer, not a mere inquiry. Additionally, based on the parties’ telephone conversation of March 22, 2010, the manifest intent of the Defendants was to withdraw not renew their offer of $450,000.
13. For the above reasons, the Court finds that the parties did not reach a settlement on March 22, 2010, or at any time in this matter.
WHEREFORE, it is hereby ORDERED and ADJUDGED, that:
A. Plaintiff’s Motion to Enforce Settlement is DENIED.
