Florida – Appellate Court Reverses Summary Judgment Finding There Was Not a Settlement

The Basners were involved in an accident with a vehicle owned by Jason and Dara Bergdoll and driven by their son Brett. The Berdoll’s insurer tendered the policy limits and mailed a settlement check with a draft release to include all three of the Bergdolls. The Basners were instructed that all three Bergdolls were insureds under the policy and should be released. The insurer also requested the Basners notify them of any changes to the release prior to their revision and signature.

The Basners scratched out the Bergdoll’s son’s name, initialed each revision, signed and notarized the revised draft and returned to the insurer without notifying of the changes. They also included a handwritten question asking “Do we have to release the driver?”  The Basners held on to the check without cashing it. The insurer never responded to the question. Several months later the Basners returned the settlement check and advised they would proceed with litigation.

The Bergdolls moved for summary judgment on the basis that the Brasners released the two parents by executing the release. The trial court granted the summary judgment

The appellate court noted that in Florida settlement agreements are governed by contract law. An acceptance has to be (1) absolute and unconditional; (2) identical with the terms of the offer; (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer. Here the appellate court noted the Basners did not agree to the same terms as they only agreed to release the two parents. The act of scratching out the son’s name and asking if the insurer if the son had to be released was in effect a counter-offer.

The Bergdolls argued there was an implicit acceptance of the counter-offer because the check kept by the Basners was not canceled. The court held that under these circumstances; (1) the altered terms of the release, (2) the question about an essential term, (3) no response from the insurer and (4) not cashing the check; did not show an implicit meeting of the minds as to the essential terms in the offer and therefore there was no valid acceptance.

Basner v. Bergdoll (Appeal from Levy County Circuit Court: 1D19-562)


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