Herring v. Dunning

• Decision Date: 10 June 1994
• Docket Number: No. A94A0450,A94A0450
• Citation: 446 S.E.2d 199,213 Ga.App. 695
• Parties: HERRING v. DUNNING.
• Court: Georgia Court of Appeals

Page 199

446 S.E.2d 199

213 Ga.App. 695

HERRING v. DUNNING.

No. A94A0450 Court of Appeals of Georgia.

June 10, 1994.

Reconsideration Denied June 29, 1994.

Certiorari Denied Sept. 29, 1994.

L.B. Kent, Columbus, for appellant.

Buchanan & Land, Benjamin A. Land, Clay D. Land, Columbus, Divine, Wilkin, Raulerson & Fields, Richard W. Fields, Albany, Self, Mullins & Robinson, Ronald W. Self, Layfield, Rothschild & Morgan, W. Donald Morgan, Jr., Columbus, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Janie Herring stopped her automobile in a southbound lane of Interstate 185 near Columbus, Georgia, and successfully avoided a multi-vehicle collision ahead of her which had completely blocked the highway. Nevertheless, Herring was struck from the rear with a vehicle driven by defendant Patrick Dunning. In the ensuing tort action against Dunning, as well as against drivers of the vehicles involved in the initial crash, Herring's counsel of record discussed with Dunning's attorney the possibilities of settlement based upon the extent of Dunning's insurance coverage. When a written release was submitted to Herring, she declined to sign it, claiming that it was too late. Dunning moved to enforce the alleged settlement agreement and the trial court entered judgment on his behalf, awarding him a "Full and Final Release of any liability in this case upon payment of the policy limits of $15,000." This direct appeal followed.

The following undisputed chronology is relevant to the disposition of this appeal: On January 22, 1993, Clay D. Land of the Law Firm of Buchanan & Land, Dunning's attorney, wrote to L.B. Kent, Herring's attorney, and offered to compromise the lawsuit by paying the $15,000 coverage limits of Dunning's automobile liability insurance policy. In return, the defendant would require a complete release of Dunning for any and all liability to Herring. This letter also inquired after the existence of any hospital liens which would need to be extinguished and asserted the need for a release of Dunning as to any potential crossclaims. Without acknowledging the initial defense inquiry, on May 17, 1993, Kent sent to Land a written "offer to settle this case at this time for the limits of your liability insurance policy." This offer, which did not state an amount and invited confirmation of the policy limits, would expire after 15 days. Also on May 17, 1993, Kent sent to Land a separate "offer to settle this case for $15,000." This offer granted the defendant 30 days to accept or reject the offer. On May 27, 1993, Land wrote to Kent reciting that in a telephone discussion Kent had extended an oral amended offer to settle the case for the policy limits in return for a release of Dunning from any and all liability. The May 27 letter of confirmation did not purport to be an acceptance of this oral amended offer, in that Land would discuss it with his client and respond later. This letter further invited immediate correction by Kent of any misapprehension on the part of Land. The next day, May 28, 1993, Benjamin A. Land of the law firm of Buchanan & Land wrote to "accept your offer to settle the above-referenced case with [Mr.] Dunning for the policy limits of $15,000.00 in exchange for a full and final release of Dunning." It is this purported acceptance that Dunning asked the trial court to enforce. Three weeks later, on June 17, 1993, Benjamin A. Land of the law firm of Buchanan & Land tendered to L.B. Kent a draft in the amount of $15,000 and a proposed written release, with instructions that Kent should return the original release when executed by his client Ms. Herring. By fax communication sent to Benjamin A. Land on June 21, 1993, Kent acknowledged receipt of the proposed release but objected to certain language purporting to release Dunning and hold him harmless for any medical expenses. Stating that "we cannot release anything about Ms. Herring's medical bills," Kent requested of Land that he "[p]lease change the release." On July 23, 1993, Land forwarded a revised release which no longer contained the objectionable language regarding a release of liability for medical bills. By fax, this release was rejected on the ground that Ms. Herring "only agreed to release [Mr.] Dunning if done within the time limit. You did not get her a release in time nor have you got a simple release at the present time."

In further support of his motion to enforce settlement, Dunning proffered the affidavit of Clay D. Land, who authenticated the various communications sent and received and added that L.B. Kent had not returned the draft for the $15,000 despite his letter of July 26, 1993, rejecting the proffered release. In opposition, Kent submitted his own affidavit denying that he had entered into any oral offer and denying that his offer had been properly accepted because the defendant had insisted on additional and material conditions. Held:

Plaintiff enumerates as error the trial court's enforcement of a non-existent settlement agreement, contending that no binding contract was ever entered into by the attorneys.

"Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. [Cits.]" Smith v. Smith, 36 Ga. 184, 191 (1867). In considering the enforceability of an alleged settlement agreement, however, "a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. Mangum v. Mills, 108 Ga.App. 535 (133 SE2d 429) (1963); Manget v. Carlton, 34 Ga.App. 556(3) (130 SE 604) (1925). 'It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.' (Emphasis supplied.) Carr v. L. & N.R. Co., 141 Ga. 219, 222 (80 SE 716) (1914)." King Cotton v. Powers, 200 Ga.App. 549(2), 550 409 S.E.2d 67 (1991). The settlement agreement alleged to have been created in the case sub judice would have been the product of the attorneys for the parties. As the existence of a binding agreement is disputed, the proponent of the settlement must establish its existence in writing. LeCroy v. Massey, 185 Ga.App. 828, 366 S.E.2d 215 (1988). See also Abrams v. Abrams, 262 Ga. 170(2), 416 S.E.2d 88 (1992). " 'The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.' [Cit.]" Stevens v. McCarty, 198 Ga.App. 412, 413(1), 414, 401 S.E.2d 605 (1991).

As a preliminary matter, we must decide whether a plaintiff's "offer to settle" an existing lawsuit for his personal injuries "for the limits of liability coverage" is an offer capable of acceptance. " ' "(I)f the offer is in any case so indefinite as to make it impossible for a court to decide just what it means, and to fix the legal liability of the parties, its acceptance can not result in an enforceable agreement." (Cit.)' " Poulos v. Home Fed. S & L Assn., 192 Ga.App. 501, 502(2), 385 S.E.2d 135 (1989). See also Manget v. Carlton, 34 Ga.App. 556, 560(3), 130 S.E. 604, supra. " 'Compromise may be defined as any agreement or arrangement by which, in consideration of mutual concessions, a controversy is terminated. The word applies equally to controversies in court or out of court. Mere abandonment of one's claims is not a compromise, but abandonment may constitute the consideration for which the other party either concedes some right, parts with something, or sustains some loss or inconvenience, in which event a compromise results.' [Cit.]" Hale v. Lipham, 61 Ga.App. 191, 193, 6 S.E.2d 115 (1939). Therefore, an offer to compromise is an offer to terminate the controversy. In litigation, "Compromise" is synonymous with "Settlement." See Parris v. Hightower, 76 Ga. 631, 633(2), 634 (1886). "Settlement" is defined in part as "an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other." Black's Law Dictionary (4th ed.) "A settlement is an agreement to terminate or forestall all or part of a lawsuit." Gorman v. Holte, 164 Cal.App.3d 984, 211 Cal.Rptr. 34, 37 (2 Dist.1985). "The word 'settle' has an established legal meaning and implies a mutual adjustment of accounts between different parties and an agreement upon the balance. [Cit.]" Sorenson v. Bowen, 199 Or. 607, 263 P.2d 766, 768 (1953). In the case sub judice, plaintiff's "offer to settle" contained no express promise to release or discharge the defendant upon tender of the policy limits. Nevertheless, a promise to terminate the controversy or the litigation is a necessary implication to the "offer to settle." It is the quid pro quo. Indeed, that promise is the very definition of an "offer to settle." An implicit contractual provision exists where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it. See Ellis v. Brookwood Park Venture, 161 Ga.App. 242, 243, 288 S.E.2d 308 (1982). Since the plaintiff's written offer to settle her pending tort claim with the tortfeasor for the limits of the latter's automobile liability coverage necessarily contained her implied promise to execute some instrument terminating the controversy as to that settling defendant, such an offer is sufficiently definite to be capable of acceptance and so to create a mutually binding and enforceable contract. Poulos v. Home Fed. S & L Assn., 192 Ga.App. 501, 385 S.E.2d 135, supra.

The next question is whether defendant properly accepted plaintiff's offer to settle the case for the policy limits so as to create a binding agreement. The letter of May 28, 1993, recites: "We hereby accept your offer to settle the above-referenced...