In Pierce v. Banks, the Georgia Court of Appeals reversed a trial court order denying plaintiff Aaron Pierce’s partial motion for summary judgment and granting a cross-motion to enforce a settlement in favor of defendant Kyndyl Banks. The central question for both motions was whether a binding presuit settlement agreement existed between the parties under Georgia’s 2021 presuit demand statute (O.C.G.A. § 9-11-67.1).
In February 2021, Pierce was involved in a motor vehicle accident with Banks and another passenger. Following the accident, Pierce made a written presuit offer to Trexis One Insurance Corp., Banks’ insurer, to settle his personal injury claim. The offer letter from Pierce required payment of the bodily injury policy limit ($25,000) and noted that Trexis must accept the terms of the offer in writing within 31 days. The offer letter further dictated that in order to accept the offer, the following conditions must be met: (1) the payee name must be made out to Aaron Pierce and Brooks Injury Law, LLC; (2) payment had to be received 15 days after Trexis’ written acceptance of the offer; and (3) Trexis’ settlement payment cannot include any “terms, conditions, descriptions, expirations, or restrictions that are not expressly permitted in this offer.” The offer letter also cautioned that “this offer must be accepted exactly as stated” and that “any variance at all from any terms or conditions of acceptance or any variance at all from the quoted language above, even if accidental, will be a rejection of this offer.”
A few days after receiving the offer, Trexis notified Pierce by letter that it was authorized to accept the offer. Trexis’ letter also included the settlement check, which was made out to “Aaron Pierce and Brooks Injury Law LLC,” omitting the comma between “Law” and “LLC.” The check also included a notation that it was “void after 180 days.” In response, Pierce rejected the settlement check as a counteroffer, explaining that Trexis’ “purported acceptance was not identical to the offer.”
Pierce eventually sued Banks for injuries arising out of the accident. In the lawsuit, Banks asserted that the parties had reached a presuit settlement on the claim. Pierce filed a partial motion for summary judgment arguing that, as to the terms of the offer, Trexis had failed to properly name the payee, failed to supply the settlement check 15 days after its written acceptance, and violated the terms of the offer by including an expiration provision. In response, Banks argued Trexis had complied with the five material statutory terms required by O.C.G.A. § 9-11-67.1 (2021). Specifically, Banks argued that the check expiration was dictated by law, that Pierce failed to show the missing comma in the payee’s name affected whether the check was negotiable, and that it was “utterly absurd” that Pierce was complaining he had received the settlement check earlier than the 15 days specified in the offer. Although the trial court agreed with Banks, the Georgia Court of Appeals did not.
The appellate court first addressed Banks’ assertion that the parties’ disagreements regarding non-material matters should not affect the enforcement of the agreement. The court reasoned that the contract at issue was a unilateral contract, which requires acceptance of an offer by act, rather than mere communication. The court explained that an acceptance by act must be “identical” and “without variance of any sort.” Thus, the court found Banks’ position on this issue to be meritless.
Next, the court looked to the Georgia Supreme Court as it relates to Pierce’s allegation that Banks’ early payment failed to abide by the time requirement imposed by the offer under section 9-11-67.1(g). The court explained that the Georgia Supreme Court has recognized this provision “shows that prompt payment may be a term of settlement in a Pre-Suit Offer, as long as the offeror gives the recipient of the offer at least 10 days from the time of written acceptance to make the payment.” Here, the court noted it is unquestionable that Pierce’s offer complied with this requirement. Banks insisted that demanding payment on the “15th day after acceptance” is not the same as “requiring payment within a specified period.” But the court was unconvinced, emphasizing that a day (i.e., the 15th day) is a period of time —“it is a span of 24 hours.” The court also disagreed with Banks’ characterization of Pierce’s timing requirement as “absurd” and noted Banks’ argument about the future impact of a decision permitting such a demand was a “parade of horribles.”
In reversing the trial court, the court ultimately relied on the principle that “if a party fails to deliver payment in the manner specified in the offer, then that party did not accept the offer.” The court found the parties here did not reach the necessary meeting of the minds because Trexis, the recipient of the presuit settlement offer, failed to perform the acts required for acceptance. As such, the court determined that the trial court erred in granting Banks’ motion to enforce the settlement agreement and in denying Pierce’s partial motion for summary judgment.
