American Nat. Property & Cas. Co. v. Nersesian

• Decision Date: 20 October 2004
• Docket Number: No. 03-3343, No. 03-3435.
• Citation: 2004 WI App 215,689 N.W.2d 922,277 Wis.2d 430
• Parties: AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Plaintiff-Respondent, v. Marderos NERSESIAN and Susan Nersesian, Defendants-Third-Party Plaintiffs-appellants, WEST BEND MUTUAL INSURANCE COMPANY, Defendant, v. Jacinto R. BENAVIDEZ, United Services Automobile Association General Indemnity Company, and Racine Unified School District, Third-Party Defendants. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Plaintiff-Respondent, v. Marderos NERSESIAN and Susan Nersesian, Defendants-Third-Party Plaintiffs, WEST BEND MUTUAL INSURANCE COMPANY, Defendant, v. Jacinto R. BENAVIDEZ, Third-Party Defendant-Respondent, UNITED SERVICES AUTOMOBILE ASSOCIATION GENERAL INDEMNITY COMPANY, Third-Party Defendant, RACINE UNIFIED SCHOOL DISTRICT, Third-Party Defendant-Appellant.
• Court: Wisconsin Court of Appeals

277 Wis.2d 430

2004 WI App 215

689 N.W.2d 922

AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Plaintiff-Respondent,¹ v. Marderos NERSESIAN and Susan Nersesian, Defendants-Third-Party Plaintiffs-appellants, WEST BEND MUTUAL INSURANCE COMPANY, Defendant, v. Jacinto R. BENAVIDEZ, United Services Automobile Association General Indemnity Company, and Racine Unified School District, Third-Party Defendants.

AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Plaintiff-Respondent,¹ v. Marderos NERSESIAN and Susan Nersesian, Defendants-Third-Party Plaintiffs, WEST BEND MUTUAL INSURANCE COMPANY, Defendant, v. Jacinto R. BENAVIDEZ, Third-Party Defendant-Respondent, UNITED SERVICES AUTOMOBILE ASSOCIATION GENERAL INDEMNITY COMPANY, Third-Party Defendant, RACINE UNIFIED SCHOOL DISTRICT, Third-Party Defendant-Appellant.

Nos. 03-3343, 03-3435.

Court of Appeals of Wisconsin.

Submitted on briefs September 9, 2004.

Decided October 20, 2004.

On behalf of the third-party defendant-appellant, the cause was submitted on the briefs of David A. Westrup and Maureen Hegarty Kanter of von Briesen & Roper, S.C., Milwaukee.

On behalf of the defendants-third-party plaintiffs-appellants, the cause was submitted on the briefs of D. Michael Guerin and Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Patrick J. Anderson of Mohr & Anderson, LLC, Hartford.

Before Anderson, P.J., Brown and Snyder, JJ.

¶ 1. ANDERSON, P.J.

Marderos and Susan Nersesian appeal from a circuit court order granting American National Property and Casualty Company's (ANPAC's) motion for summary judgment. The Nersesians contend that the circuit court erred in concluding that they had entered into a valid and enforceable settlement agreement with ANPAC. After an examination of the record in this matter and, in particular, the correspondence between the parties, we conclude that the Nersesians never accepted ANPAC's offer and therefore a settlement agreement was never reached. Accordingly, we reverse.

FACTS

¶ 2. On December 17, 1999, Marderos was involved in an automobile accident with ANPAC's insured, Jacinto R. Benavidez, in Racine county. As a result of the accident, the Nersesians retained the law firm Gimbel, Reilly, Guerin & Brown to represent both of their interests relative to the injuries and damages Marderos sustained in the accident. On January 15, 2000, Sue M. Soczka, a paralegal at the law firm who was assisting Attorney D. Michael Guerin with the case, wrote to ANPAC advising it that the firm had been retained by the Nersesians. Thereafter, ANPAC wrote to Soczka confirming ANPAC's understanding that the law firm had been retained to represent the Nersesians and requesting all of Marderos's medical information. Over the course of the months following the Nersesians' retention of the law firm, various representatives of ANPAC and the firm exchanged information regarding the potential settlement of the Nersesians' claims.

¶ 3. On June 19, 2001, Guerin submitted a letter to ANPAC proposing to settle the case for $48,500. On July 2, 2001, ANPAC informed the Nersesians that it would be willing to settle their claims for $15,000. On August 9, 2001, Guerin rejected the $15,000 settlement offer and proposed to settle the Nersesians' claims for $36,750. On August 24, 2001, ANPAC increased its offer to $16,500.

¶ 4. Ultimately, on December 20, 2001, Soczka sent a letter by facsimile to ANPAC confirming that the parties had agreed to resolve the Nersesians' claims for a total of $17,725. Soczka wrote:

This will confirm that the above-entitled claim has been settled for a total of $17,725. As was discussed with Attorney D. Michael Guerin, we would greatly appreciate it if two settlement checks were issued to our firm's trust account, to reflect the separate claims of Susan Nersesian for her loss of consortium with that of the personal injury claim of Marderos Nersesian. To that end, if one check could be issued in the amount of $2,500 (for Mrs. Nersesian's claim) and the other in the amount of $15,225 (for Mr. Nersesian's claim) . . . .

As you are aware, Mr. Nersesian was acting within the scope of his employment at the time this accident occurred; therefore, his settlement proceeds must be distributed in accordance with Wisconsin State Statute Section 102.29. Enclosed for your file is a copy of the worker's compensation distribution based on the $15,225 settlement.

If you should have any questions or concerns regarding the above, please do not hesitate to contact me. Otherwise, we look forward to receiving the settlement checks and release from you in the near future.

Soczka also enclosed a copy of a worker's compensation distribution agreement based on the $15,225 settlement.

¶ 5. On January 4, 2002, Soczka wrote ANPAC advising it that the worker's compensation carrier, West Bend Mutual Insurance Company, had agreed to the settlement. She further wrote: "Our office will provide you with a conformed copy of the [worker's compensation] document when we return the executed release. We look forward to receiving the settlement paperwork from you in the near future." On that same date, ANPAC also wrote to Soczka confirming that the case had been settled for a total payment of $17,725. The letter stated:

This will confirm settlement of this case for a total payment of $17,725, including any and all liens known or unknown.

Per your request, we have cut two settlement checks. Also enclosed is a Release. I ask that you return the signed, notarized Release before negotiating the check.

I do appreciate your help and cooperation in working to resolve this case.

Soczka forwarded the release and settlement checks to the Nersesians.

¶ 6. On January 30, Soczka received a telephone call from Marderos, who informed her that he was experiencing numbness and tingling in his right side (along with an associated loss of coordination), which radiated from his neck through his arms. Marderos reported that he began to experience these symptoms in late December 2001. He advised Soczka that he had seen his physician about the symptoms and had been referred to another doctor for an orthopedic assessment.

¶ 7. Based upon her conversation with Marderos, Soczka contacted ANPAC and West Bend in early February to advise them as to Marderos's changed condition and subsequent medical treatment. She advised both parties that the pending settlement would be "put on hold" and that the law firm would be retaining the settlement documentation (release, settlement checks, the worker's compensation form) until a determination was made as to whether the additional medical treatment was related to the accident. According to Soczka, neither West Bend nor ANPAC expressed any objection or concern relative to putting the matter "on hold."

¶ 8. Under his doctor's recommendation, Marderos ultimately underwent an anterior cervical discectomy and interbody fusion on May 6, 2002. Soczka spoke with Marderos in late May and asked him to return the documents she had sent him, including the release and settlement checks. Thereafter, Soczka learned that Marderos had suffered complications from the surgical procedure. Marderos underwent the procedure two more times in mid-June.

¶ 9. On June 12, the law firm received a letter from Marderos's doctor outlining his medical opinion. He wrote:

[T]o a reasonable degree of medical certainty, this patient's condition of degenerative disk disease, cervical spine, and central spinal stenosis has been aggravated and accelerated as a result of the motor vehicle accident . . . . The surgical procedure was performed as a result of his degenerative changes which have been aggravated and accelerated as a result of the motor vehicle accident.

The letter was forwarded to the Nersesians. Based upon the doctor's assessment of Nersesian, it was determined that the negotiated settlement was no longer equitable under the circumstances.

¶ 10. On July 8, Guerin wrote a letter to ANPAC advising it that the Nersesians were "formally withdrawing ... acceptance of the $17,725 settlement offer." Guerin returned the uncashed settlement checks and the release along with the letter. The release, which both Susan and Marderos signed on January 28, 2002, had the word "VOID" written across its face.

¶ 11. On October 7, 2002, ANPAC filed the underlying action against the Nersesians and West Bend seeking to enforce the December 2001 settlement. While that action was pending, Susan's employer, the Racine Unified School District (RUSD) filed its own action against Benavidez, the liable driver, and ANPAC, asserting a subrogation claim for health benefits it paid on behalf of the Nersesians. This subrogation case was consolidated with ANPAC's action in August 2003.

¶ 12. On September 22, 2003, ANPAC filed a summary judgment motion, seeking a declaration as a matter of law that it had a valid and enforceable agreement to pay no more than $17,725 to the Nersesians and seeking dismissal of all other claims pending against it. The Nersesians opposed the motion and also moved for relief pursuant to WIS. STAT. § 806.07 (2001-02).² The circuit court, after hearing argument on the matter, granted ANPAC's summary judgment motion, ruling that the settlement contract was enforceable and dismissing RUSD's claim. The court also refused to consider relief under § 806.07. Both the Nersesians and RUSD appealed from the court's final order. Their appeals were consolidated by order of this court.

STANDARD OF REVIEW

¶ 13. We review summary judgment decisions de novo, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. It is sufficient to say that summary judgment is...