Grant v. Sears, WD 74864.
| Decision Date | 25 September 2012 |
| Docket Number | No. WD 74864.,WD 74864. |
| Citation | 379 S.W.3d 905 |
| Parties | Angela GRANT, Appellant, v. James SEARS, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Robert W. Russell, Sedalia, MO, for appellant.
J. Christopher Spangler, Sedalia, MO, for respondent.
Before Division Three: VICTOR C. HOWARD, Presiding Judge, KAREN KING MITCHELL, Judge and CYNTHIA L. MARTIN, Judge.
Angela Grant (“Grant”) appeals from the trial court's judgment granting James Sears's (“Sears”) motion to enforce settlement. On appeal, Grant contends that the trial court erred in enforcing the settlement agreement because there was no meeting of the minds between Grant and American Family as to the material terms of settlement, and alternatively, if an enforceable settlement agreement was formed, American Family breached the agreement. We reverse and remand the trial court's judgment.
The material facts are not in dispute. On March 31, 2009, Grant filed a petition for damages (“Petition”) against Sears for injuries Grant sustained as a result of a March 3, 2009 motor vehicle accident. At the time of the accident, Sears was driving a rental car, but had liability insurance coverage with policy limits of $25,000.00 from an American Family Mutual Insurance Company (“American Family”) policy belonging to Sears's mother, Carla Burel.
On May 8, 2009, First Recovery Group LLC (“First Recovery Group”) notified Grant's attorney, Robert W. Russell (“Russell”), that Mercy CarePlus 1 was asserting a lien for medical expenses paid on Grant's behalf in the amount of $31,969.50.
On October 6, 2009, First Recovery Group notified American Family that the Medicaid Plan, Mercy CarePlus, had paid medical benefits on Grant's behalf in the amount of $36,361.87.
On October 28, 2009, First Recovery Group advised Russell that Mercy CarePlus's claim amount was now $36,361.87, acknowledged receipt of correspondence from Russell, and communicated an intent to seek the consent of Mercy CarePlus to agree to split the $25,000.00 American Family policy limits equally between Grant, Russell, and Mercy CarePlus.
On December 2, 2009, Russell sent American Family a letter demanding payment of the $25,000.00 policy limits and alleging that Grant had suffered permanent injuries as a result of Sears's negligence in excess of $58,500.00 (“Demand Letter”). The letter also requested an affidavit from the insured 2 that no other coverage existed for the accident.
On December 21, 2009, American Family responded to the Demand Letter as follows:
We have received your demand for settlement of the above referenced client.
Your offer to settle for our $25,000.00 policy limits is accepted.
If you need an affidavit of no other coverage from our policy holder, please provide the form and it will be sent to her for her signature. She has no telephone.
(Emphasis added.) The letter then continued:
We are on notice of liens from Medicaid and First Recovery Group. Please provide their final lien letters.
Please verify whether or not your client is a Medicare recipient.In the meantime, our release is enclosed.
(Emphasis added.)
On January 7, 2010, Russell responded: Russell's letter did not mention American Family's request for information pertaining to Medicare, the Medicaid lien, or the general form of release.
On January 11, 2010, a secretary in Russell's firm sent American Family a letter enclosing the release. Before signing the release, Grant crossed out language purporting to release “all other persons and organizations who are or might be liable.” The letter enclosing the release again requested issuance of the settlement check, and asked that it be made payable to Grant and Russell's law firm.
On February 22, 2010, American Family wrote to Russell as follows:
FEDERAL LAW (See 42 U.S.C. 1395y(b)(7) and (8)) was recently changed and now requires us to report to the Center for Medicare and Medicaid Services all payments and settlements to people who are on Medicare or who may become eligible for Medicare. In order to comply with the Federal Law, we are required to collect the following information regarding your client. Please respond in writing as to whether or not your client is a Medicare recipient or may become eligible for Medicare along with your client's full name, current address, date of birth and your client's social security number or HICN number.
I am following up on my telephone message left for you on January 15, 2010. Please forward your proposed release for review by our legal department.
Please forward the final lien amounts.
(Emphasis added.)
On March 4, 2010, First Recovery Group notified Russell that Mercy CarePlus had agreed to settle its claim for the sum of $8,333.33, one-third of the policy limits.
On March 10, 2010, Russell responded to American Family's February 22, 2010 letter as follows:
In negotiating the release and documents to settle this claim, there was no discussion as to the requirements American Family has under Federal Law. Further, it is not [Grant's] duty to make such a reporting. We will of course honor all liens filed by Medicaid or Medicare in this case. In fact, we are dealing with them to resolve that. It has been almost two months since you have received the release and we have not seen the check. Please be advised if the check is not sent to our office in the next 10 days, we will consider American Family and Ms. Burel in breach of the release and pursue all legal options available to Ms. Grant up to and including seeking a section 537.065 RSMo. [a]greement from Ms. Burel and her son for the true amount of damages suffered by Ms. Grant in this case.
As I said in my previously [sic] letter the check should be made payable to Angela Grant and our firm.
On March 15, 2010, American Family advised Russell that its legal department had accepted the release in the modified form signed by Grant and imposed the following options for payment of the policy limits: (1) the settlement check would be issued to Grant, Russell's law firm and all lien holders who had placed American Family on notice; or (2) Russell would “agree in writing to comply with Advisory Committee Formal Opinion 125 (copy enclosed), and provide the Medicare information that will satisfy the federal reporting requirement under 42 U.S.C. 1395y(b)(7) and (8),” whereupon the settlement check would be issued payable to Grant and Russell's firm.
On March 19, 2010, Russell wrote to American Family and advised that Medicare 3 was the only lien holder known to Grant and that an arrangement had been worked out to address the Medicare lien. Russell's letter also stated,
On March 26, 2010, American Family wrote to Russell:
We have received your demand for the settlement of the above referenced client.
Enclosed is a copy of the lien we have on file. I am ready to issue payment of our policy limits. As discussed with our legal department, the lienholders(s) have to be named on the payment unless you provide the amount(s) for separate checks or lien waiver(s). Since you have indicated that Ms. Grant is a Medicare recipient, I will also need her Medicare number for the required reporting
At this time, we are aware of the lien(s) listed below: FRG [in the amount of] $44,827.09.
(Emphasis added.)
On May 4, 2010 and again on July 1, 2010, American Family notified Russell that it had received word from First Recovery Group about the agreement to accept $8,333.00 in satisfaction of the Mercy CarePlus Medicaid (not Medicare) lien. American Family asked Russell to provide final lien amounts and to advise whether Grant is a Medicare recipient.
On July 23, 2010, Russell responded as follows:
Based upon the conduct of American Family and seeing that we are eight months from the date that my client was owed money to the settlement agreement [sic].
We now consider the settlement agreement to be void based upon American Family's conduct.
At this time, we are proceeding with the service against Mr[.] Sears and will proceed against him for a verdict which I believe will be well in excess of American Family's policy limits in this case. Additionally, based upon Mr. Sears'[s] pleas of guilty to the felony charges that arose out of this crash, I feel confident that liability is not an issue and we are discussing solely the significant injuries and trauma my client has suffered as a result of Mr. Sears'[s] conduct.
On August 3, 2010, Sears was served with the Petition that had been filed on March 31, 2009.
On August 5, 2010, American Family responded to Russell's July 23, 2010 letter as follows:
Frankly, I am mortified to read such an inaccurate account of your beliefs in this matter. It is an obvious attempt to stage a scenario of blame for a less than ideal settlement situation (low policy limits). The only real delay in concluding Angela Grant's claim with us is your own appalling conduct and stubborn refusal to provide the lien information.
During the course of this claim, you indicated that Angela Grant is a Medicare recipient. I learned from First Recovery Group that she is also a Medicaid recipient. American Family received the release in this matter on January 14, 2010. Since that time, I have been requesting the lien information from you (as Super Liens are involved). On March 26, 2010, I called First Recovery Group myself and was told that they did negotiate their lien with you, reducing it to $8333.00. Their representative referred me to you for a copy of the documentation. My file reflects that I have sent six letters to you between January 14, 2010 and July 1, 2010, all in a...
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