Grange Mut. Cas. Co. v. Woodard

• Decision Date: 06 March 2017
• Docket Number: S16Q1875
• Citation: 797 S.E.2d 814
• Parties: GRANGE MUTUAL CASUALTY COMPANY v. WOODARD et al.
• Court: Georgia Supreme Court

797 S.E.2d 814

GRANGE MUTUAL CASUALTY COMPANY

v.WOODARD et al.

S16Q1875

Supreme Court of Georgia.

Decided: March 6, 2017

Thomas Peter Allen, III, William James Davis, Martin Snow, LLP, 240 Third Street, Macon, Georgia 31202-1606, for Appellant.

Matthew Glenn Moffett, Gray, Rust, St. Amand, Moffett & Brieske, LLP, 1700 Atlanta Plaza, 950 East Paces Ferry Road, Atlanta, Georgia 30326, Martin Adam Levinson, Hawkins Parnell Thackston & Young LLP, 303 Peachtree Street, N.E., Suite 4000, Atlanta, Georgia 30308, Garret Warrington Meader, Drew Eckl & Farnham LLP, 777 Gloucester Street, Suite 305, Brunswick, Georgia 31520, for Amicus Appellant.

James Nicholas Sadd, Richard English Dolder, Jr., Slappey & Sadd, LLC, 352 Sandy Springs Circle, Atlanta, Georgia 30328-3836, for Appellee.

Darrell Wayne Hinson, Swope, Rodante P.A., 160 Clairemont Avenue, Suite 200, Decatur, Georgia 30030, for Amicus Appellee.

PETERSON, Justice.

This appeal in a personal injury case arising from an automobile accident is before this Court on certified questions from the United States Court of Appeals for the Eleventh Circuit. At issue is the proper interpretation of OCGA § 9-11-67.1, which governs the formation of settlement agreements pursuant to a pre-suit "offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants" (a "Pre-Suit Offer"). OCGA § 9-11-67.1(a). We conclude that OCGA § 9-11-67.1 does not prohibit a claimant from conditioning acceptance of a Pre-Suit Offer upon the performance of some act, including a timely payment. We leave it to the Eleventh Circuit to apply this principle to the facts of this case.

1. Factual and procedural background

The relevant facts are largely undisputed. On March 20, 2014, Thomas Dempsey was driving his car in Georgia when he collided with a pickup truck operated by Boris Woodard in which Woodard's adult daughter, Anna Woodard, was a passenger. Both Woodards were injured, and Anna died of her injuries. Dempsey's vehicle was insured under a personal automobile liability policy issued by Grange Mutual Casualty Company ("Grange") with liability limits of $50,000 per person, $100,000 per accident. Grange assigned claims representative Heather Conn to handle Boris Woodard's personal injury claim, as well as Boris and Susan Woodard's wrongful death claim for Anna. The Woodards selected T. Shane Peagler of the Law Offices of Michael Lawson Neff, P.C., to represent them in the matter.

On June 19, 2014, Peagler sent Conn a letter making a settlement offer, under the heading, "Offer to Settle Tort Claims Made Pursuant to OCGA § 9-11-67.1 and OCGA § 51-12-14." In his letter, Peagler said that the Woodards offered a limited release of their claims against the Dempseys and Grange in exchange for the $100,000 policy limit. The letter contained a list of demands under the boldface heading, "Note : The following items must be noted and fully and strictly complied with in order to accept this offer[.] " Among those demands were the following:

• "Pursuant to O.C.G.A. § 9-11-67.1, you have 30 days from your receipt of this offer to accept it."

• "Your acceptance of this offer must be in writing to me at the above address shown in my letterhead. If we do not actually receive a timely acceptance, this offer will be deemed rejected, and we will file a lawsuit against your insureds to recover the total amount of losses caused by your insureds, instead of the limited amount afforded by your coverage and other coverage that may be available."

• The Dempseys and a Grange officer were required to provide affidavits swearing that the insurance coverage from Grange was the only coverage available and that no excess or umbrella policies were available. "All three affidavits must be received in my office within ten (10) days after your written acceptance of this offer to settle. Timely compliance with this paragraph is an essential element of acceptance."

• "If payment is not tendered in cash pursuant to OCGA 9-11-67.1(f)(1), payment in the amount of $50,000 must be made payable to ‘Boris and Susan Woodard and Michael L. Neff, their attorney for the wrongful death of their daughter, Anna Woodard,’ within ten (10) days after your written acceptance of this offer to settle. Timely payment is an essential element of acceptance."

• "If payment is not tendered in cash pursuant to OCGA 9-11-67.1(f)(1), payment in the amount of $50,000 must be made payable to ‘Boris Woodard and Michael L. Neff, his attorney’ within ten (10) days after your written acceptance of this offer to settle. Timely payment is an essential element of acceptance."

Peagler agreed that Grange had until July 23, 2014, to accept the offer. In a letter dated July 22, 2014, Conn told Peagler, "We accept your demand as outlined in your correspondence of June 23, 2014." The letter stated that the requested affidavits and checks would follow under separate cover within 10 days. Conn emailed Peagler the affidavits on July 29, stating that the checks were being issued that day.

Conn and Neff spoke on August 12, 2014, and Neff informed Conn that the checks had not arrived. Neff told Conn this meant the parties had not reached a binding settlement agreement. Conn offered to reissue new checks for overnight delivery, but Neff was unwilling to accept them. Conn nonetheless wrote to Neff's office after their conversation, including settlement checks with the correspondence. She apologized, explaining that the original checks were issued on July 29 but there was an error in addressing them to Neff's office. On August 14, Neff sent Conn a letter returning the checks and stating that the Woodards rejected Grange's untimely response to the settlement offer and would be filing a lawsuit.

Grange filed a lawsuit against the Woodards in the U.S. District Court for the Northern District of Georgia. The one-count complaint alleged breach of the settlement contract and sought relief "up to and including an award of specific performance." The parties filed cross-motions for summary judgment. The Woodards argued that the parties did not reach a settlement agreement because the demand letter required Grange to remit payment timely as a condition of acceptance, which Grange failed to satisfy. Grange argued that Georgia law rendered void the Woodards' attempt to require timely payment as a condition of acceptance. Both parties cited OCGA § 9-11-67.1, which provides in relevant part as follows:

(a) Prior to the filing of a civil action, any offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants shall be in writing and contain the following material terms:

(1) The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of the offer;

(2) Amount of monetary payment;

(3) The party or parties the claimant or claimants will release if such offer is accepted;

(4) The type of release, if any, the claimant or claimants will provide to each releasee; and(5) The claims to be released.

(b) The recipients of an offer to settle made under this Code section may accept the same by providing written acceptance of the material terms outlined in subsection (a) of this Code section in their entirety.

(c) Nothing in this Code section is intended to prohibit parties from reaching a settlement agreement in a manner and under terms otherwise agreeable to the parties.

(d) Upon receipt of an offer to settle set forth in subsection (a) of this Code section, the recipients shall have the right to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts. An attempt to seek reasonable clarification shall not be deemed a counteroffer.

...

(g) Nothing in this Code section shall prohibit a party making an offer to settle from requiring payment within a specified period; provided, however, that such period shall be not less than ten days after the written acceptance of the offer to settle.

The district court agreed with the Woodards that the statute does not prohibit a party from requiring payment as a condition of acceptance, and found that Grange did not satisfy the Woodards' terms of acceptance through written acceptance alone. The district court also rejected Grange's argument that even if payment was an essential element of acceptance, the insurer had satisfied that provision when it issued settlement checks payable to the Woodards in a timely manner. The district court denied Grange's motion for summary judgment and granted summary judgment to the Woodards.

Grange appealed to the Eleventh Circuit, which concluded that OCGA § 9-11-67.1 was "arguably ambiguous with respect to its requirements." Grange Mut. Cas. Co. v. Woodard , 826 F.3d 1289, 1300 (11th Cir. 2016). On the one hand, the court observed, the statute appears to contemplate that an offeree will accept an offer in writing, such that payment would be a term of contract performance, not contract formation. Id. On the other hand, the court continued, subsection (c) arguably permits the parties to reach an agreement as they see fit, including "by contracting around" the procedure set forth in subsections (a) and (b). Id. Noting there were no published state or federal court decisions interpreting OCGA § 9-11-67.1, id. at 1299, the Eleventh Circuit certified the following questions to this Court:

(1) Under Georgia law and the facts of this case, did the parties enter a binding settlement agreement when the insurer Grange accepted the Woodards' offer in writing?

(2) Under Georgia law, does OCGA § 9-11-67.1 permit unilateral contracts whereby offerors may demand acceptance in the form of performance before there is a binding, enforceable settlement contract?

(3) Under Georgia law...