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Johnny Thompson, as Personal Representative v. Estate of Kendrick Kevin Maurive, Case No. 4D13-2618 (4th DCA)

In Thompson, the Fourth DCA reversed a trial court order enforcing a pre-suit settlement, finding that there was not a meeting of the minds between the parties as to every essential element. The plaintiff's son was involved in an automobile accident that resulted in his death. On Febraury 9, 2011, the plaintiff, as personal representative, sent a demand letter to GEICO insurance company. In the demand letter, the plaintiff made a settlement offer enumerating four conditions for acceptance. On March 4, 2011, GEICO responded to the demand letter. GEICO's responsive letter mirrored the four settlement conditions, but went on to enclose a release of "all claims, as to my clients and GEICO's insureds, Christice Guillaume and Patricia Guillaume, upon which this demand and acceptance is conditioned which is appropriate pursuant to Maldonado v. First Liberty Insurance Corporation." GEICO stated that it would appreciate receipt of the executed release prior to disbursement of the proceeds of the settlement. The Fourth DCA noted that the release contained comprehensive indemnification language. The plaintiff argued that GEICO's responsive letter did not constitute an acceptance of the demand letter, because it sought to release Patricia Guillaume, a non-party at the time and a non-insured under the policy. The plaintiff additionally argued that the release contained indemnification that was objectionable.

The court noted that the to be enforceable, a settlement agreement must be sufficiently specific and mutually agreeable as to every essential element. "Generally, the acceptance of an offer which results in a contract must be absolute and unconditional, identical with the terms of the offer, and in the mode, at the place, and within the time expressly or impliedly stated within the offer." Therefore, acceptance of an offer must contain an assent to the same matters contained in the offer. The Fourth DCA noted that it had previously held that indemnification language is a crucial term, and where the language of a release is disputed and the parties fail to reach an agreement as to the character, nature or type of release to be used, an essential element of the agreement is not established. While a release may be implicit in an offer of settlement, an agreement as to the character, nature or type of release to be used is an essential element of the agreement.

The Fourth DCA found that the plaintiff's offer did not contain any indemnification language, and instead enumerated a closed list of conditions, complete performance of each and every one of which would constitute acceptance by GEICO and the defendants. GEICO, however, conditioned its acceptance upon execution of a release that introduced broad indemnification language, which thereby injected a new essential element of the agreement into the pre-suit negotiations. As such, GEICO's responsive letter was not a valid acceptance, but rather a counteroffer. Therefore, no agreement had been reached.

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