In Gonzalez v. Claywell, the First DCA affirmed a ruling finding that there had been no settlement between the person injured in a car accident and the at-fault party's liability insurer. In this case, plaintiff's counsel had presented a settlement proposal, which was specifically stated to be a "unilateral offer" which could only be accepted by "complete performance." The offer specifically stated that the acceptable release could release only the driver and owners of the vehicle. While the insurer was able to forward a check and release within the time required, the proposed release also included the liability insurer. Plaintiff rejected this release, because it deviated from the offer. The Trial Court agreed and the First DCA affirmed.

The First DCA noted that the plaintiff's offer was specific. She agreed to release "only [the driver] and the co-owner(s) of the vehicle he was driving" and she made it clear that this was a "unilateral offer" that could be accepted only by "complete performance." However, the insurer sent a proposed release form releasing itself, as well as the driver and owner of the vehicle. The plaintiff returned the check and the unsigned release form, explaining that the proposed release deviated from the terms of her offer. In referencing these facts, the court stated:

The only logical conclusion to be drawn from this sequence of events is that the parties did not enter into a settlement agreement. As the trial judge stated, [the insurer's] proposal to add itself to the release was a counteroffer, not an acceptance of the original offer. Because the plaintiff immediately rejected the counteroffer by sending the check back and declining to sign the proposed release, there was no agreement. See Mercury Ins. Co. of Fla. v. Fonseca, 3 So. 3d 415, 417 n.2 (Fla. 3d DCA 2009) (an insured's immediate rejection of the insurer's release provides evidence that a contract was not formed). The question here is not whether the plaintiff should have accepted the check. All we need to know to conclude that there was no contract is that she did not. (emphasis added)

Further, though the court agreed that "a document releasing an insurer is ordinarily included as a part of a settlement agreement" this did not create a settlement in this case. In the cases relied upon by defendant, the courts supplied essential terms that were implied but not mentioned in the original offer. See, e.g., Mercury Ins. Co., 3 So. 3d at 417; Erhardt v. Duff, 729 So. 2d 529, 529 (Fla. 4th DCA 1999); Nichols v. Martell, 612 So. 2d 657, 658 (Fla. 3d DCA 1993). In contrast, the contract term at issue in this case (releasing the liability insurer) "cannot be added to the contract by implication because it was expressly rejected by the language of the offer itself." Finding no settlement to have occurred, the court affirmed the $394,000 judgment against the Defendant.

FLW Summary provided HERE .

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