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                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-13295
                               ________________________

                          D.C. Docket No. 1:14-cv-03283-RWS



GRANGE MUTUAL CASUALTY COMPANY,

                                                                         Plaintiff-Appellant,

                                           versus

BORIS WOODARD,
SUSAN WOODARD,

                                                                     Defendants-Appellees.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                       (June 30, 2017)

Before HULL and BLACK, Circuit Judges, and MORENO, * District Judge

HULL, Circuit Judge:

       *
         Honorable Federico A. Moreno, United States District Judge for the Southern District of
Florida, sitting by designation.
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      This case returns to us from the Supreme Court of Georgia, to whom we

certified certain questions concerning O.C.G.A. § 9-11-67.1. Before turning to

those questions, we offer a brief review of the facts, which are not in dispute and

are set out more fully in our previous opinion. See Grange Mut. Cas. Co. v.

Woodard, 826 F.3d 1289 (11th Cir. 2016).

                         I. FACTUAL BACKGROUND

      In March 2014, the Dempseys and the Woodards were involved in a car

accident in which Boris Woodard was injured and his adult daughter, Anna

Woodard, was killed. Grange Mut., 826 F.3d at 1291. The Dempseys carried car

insurance through Grange Mutual Casualty Company (the “Insurer Grange”). Id.

The Dempseys’ liability limits for bodily injury claims were $50,000 per person

and $100,000 per accident. Id.

      On June 19, 2014, the Woodards’ attorney mailed the Insurer Grange a

settlement offer, offering a limited release of their claims against the Dempseys

and the Insurer Grange in exchange for the $100,000 policy limit. Id. The June 19

letter was titled “Offer to Settle Tort Claims Made Pursuant to O.C.G.A. § 9-11-

67.1 and O.C.G.A. § 51-12-14.” Id.

      As this Court previously explained:

      The Woodards’ June 19 letter contained an 11-item list of
      requirements for the Insurer Grange to comply with to accept the
      settlement offer. A statement, typed in bold, preceded the list and
      said: “The following items must be noted and fully and strictly
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      complied with in order to accept this offer.” The items most relevant
      to this appeal (numbers 1-5) are summarized below.

      (1)   “Pursuant to O.C.G.A. § 9–11–67.1, you have 30 days from
            your receipt of this offer to accept it.”
      (2)   “Your acceptance of this offer must be made in writing to me at
            the above address shown in my letterhead. If we do not actually
            receive a timely acceptance, this offer will be deemed
            rejected . . . .”
      (3)   Acceptance requires affidavits from Thomas Dempsey, Delann
            Dempsey, and a Grange officer, swearing to the policy limits.
            “All three affidavits must be received in my office within ten
            (10) days after your written acceptance of this offer to settle.
            Timely compliance with this paragraph is an essential element
            of acceptance.”
      (4)   “If payment is not tendered in cash pursuant to O.C.G.A. 9–11–
            67.1(f)(1), payment in the amount of $50,000 must be made
            payable to ‘Boris and Susan Woodard and Michael L. Neff,
            their attorney for the wrongful death of their daughter, Anna
            Woodard’ within ten (10) days after your written acceptance of
            this offer to settle. Timely payment is an essential element of
            acceptance.”
      (5)   “If payment is not tendered in cash pursuant to O.C.G.A. 9–11–
            67.1(f)(1), payment in the amount of $50,000 must be made
            payable to ‘Boris Woodard and Michael L. Neff, his
            attorney’ within ten (10) days after your written acceptance of
            this offer to settle. Timely payment is an essential element of
            acceptance.”

Id. at 1291-92 (emphases added).

      It is undisputed that the Insurer Grange timely sent the Woodards’ attorney a

written acceptance of the offer on July 22, 2014. Id. at 1292. Ten days from the

July 22 acceptance letter was August 1. Id. On July 29, the Insurer Grange

emailed the Woodards’ attorney the required affidavits and stated that the checks

were being issued that day. Id.
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       Heather Conn, the claims adjuster that the Insurer Grange had assigned to

the case (the “Adjuster Conn”), ordered the two settlement checks through the

Insurer Grange’s automated claims payment system, which was the company’s

routine practice for issuing such checks. Id. at 1291, 1292. As this Court

previously explained:

       Adjusters pull the mailing address for the checks from contact
       information previously uploaded into the Insurer Grange’s system.
       The adjusters order the checks to go to the address on file, and then
       the checks are printed and mailed from a central location. The
       adjusters never see the checks.

Id. at 1292. Adjuster Conn followed this process when ordering the checks on July

29, using the contact information that was in the system for the Woodards’

attorney. 1 Id.

       On August 12, attorney Michael Neff (“Attorney Neff”) told Adjuster Conn

that the settlement checks had not arrived and that the parties, therefore, had never

reached a binding settlement agreement. Id. Despite Attorney Neff’s statement

that he would not accept reissued checks, Adjuster Conn ordered new checks and

mailed them to Attorney Neff on August 12, along with screenshots showing the

July 29 issuance of the original checks. Id. According to Conn’s accompanying

letter to Neff, the screenshots showed that the law office’s address was complete in


1
 The Woodards were represented by T. Shane Peagler of the Law Offices of Michael Lawson
Neff, P.C. 826 F.3d at 1291. Adjuster Conn used the contact information that was in the system
for “Michael L Neff PC” when issuing the checks on July 29. Id. at 1292.
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the “address tab,” but “somehow drop[ped] off in the mail/billing address tab.” Id.

The Woodards rejected this as an untimely settlement offer and returned the new

checks. Id. at 1292-93.

      An information technology employee at the Insurer Grange later executed an

affidavit stating that, when he created “test checks” using the information in the

Insurer Grange’s system, the street was missing from the mailing address printed

on the checks. Id. at 1293. The employee concluded that “the street address was

likely missing from the July 2014 checks.” Id.

                      II. PROCEDURAL BACKGROUND

A.    Proceedings before the district court

      In October 2014, the Insurer Grange filed a one-count complaint against the

Woodards. Id. The parties filed cross motions for summary judgment in the

district court. Id. at 1293-94. The district court granted the Woodards’ motion for

summary judgment and denied the Insurer Grange’s cross-motion, concluding that

the parties never formed a settlement contract. Id. at 1294.

      The district court first concluded that O.C.G.A. § 9-11-67.1 does not

prohibit a party from requiring payment as a condition of acceptance of a

settlement offer. Id. at 1294-95. The district court also concluded that the

Woodards had made timely payment a condition of acceptance of their settlement

offer. Id. at 1295. Finally, the district court held that the Insurer Grange did not


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comply with the timely payment requirement, that it consequently failed to accept

the Woodards’ settlement offer, and that the parties thus had not formed a binding

settlement agreement. Id.

B.     Proceedings before this Court

       On appeal, this Court concluded that O.C.G.A. § 9-11-67.1 was “arguably

ambiguous with respect to its requirements.” 2 Id. at 1300. If O.C.G.A. § 9-11-


2
 The relevant parts of the statute read as follows:
       (a)    Prior to the filing of a civil action, any offer to settle a tort claim for personal
              injury, bodily injury, or death arising from the use of a motor vehicle and
              prepared by or with the assistance of an attorney on behalf of a claimant or
              claimants shall be in writing and contain the following material terms:
              (1)      The time period within which such offer must be accepted, which shall be
                       not less than 30 days from receipt of the offer;
              (2)      Amount of monetary payment;
              (3)      The party or parties the claimant or claimants will release if such offer is
                       accepted;
              (4)      The type of release, if any, the claimant or claimants will provide to each
                       releasee; and
              (5)      The claims to be released.
       (b)    The recipients of an offer to settle made under this Code section may accept the
              same by providing written acceptance of the material terms outlined in subsection
              (a) of this Code section in their entirety.
       (c)    Nothing in this Code section is intended to prohibit parties from reaching a
              settlement agreement in a manner and under terms otherwise agreeable to the
              parties.
       (d)    Upon receipt of an offer to settle set forth in subsection (a) of this Code section,
              the recipients shall have the right to seek clarification regarding terms, liens,
              subrogation claims, standing to release claims, medical bills, medical records, and
              other relevant facts. An attempt to seek reasonable clarification shall not be
              deemed a counteroffer.
       (e)    An offer to settle made pursuant to this Code section shall be sent by certified
              mail or statutory overnight delivery, return receipt requested, and shall
              specifically reference this Code section. . . .
       (g)    Nothing in this Code section shall prohibit a party making an offer to settle from
              requiring payment within a specified period; provided, however, that such period
              shall be not less than ten days after the written acceptance of the offer to settle.
O.C.G.A. § 9-11-67.1.
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67.1 were interpreted to mean that an offeree could accept an offer in writing,

thereby forming a binding contract with payment being a term of contract

performance rather than contract formation, then the Insurer Grange would have

fulfilled the requirements of the offer letter and a binding settlement agreement

would have been formed. Id. If, on the other hand, timely payment was a

precondition to acceptance under the statute, then the Insurer Grange’s failure to

make that timely payment meant that no contract was ever formed between the

parties. Id. Because there was “substantial doubt about the correct answer to a

dispositive question of state law,” we certified the following four questions to the

Supreme Court of Georgia:

      (1)    UNDER GEORGIA LAW AND THE FACTS OF THIS

             CASE,     DID     THE     PARTIES      ENTER      A    BINDING

             SETTLEMENT AGREEMENT WHEN THE INSURER

             GRANGE ACCEPTED THE WOODARDS’ OFFER IN

             WRITING?

      (2)    UNDER GEORGIA LAW, DOES O.C.G.A. § 9-11-67.1

             PERMIT       UNILATERAL           CONTRACTS           WHEREBY

             OFFERORS MAY DEMAND ACCEPTANCE IN THE FORM

             OF PERFORMANCE BEFORE THERE IS A BINDING,

             ENFORCEABLE SETTLEMENT CONTRACT?


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      (3)    UNDER GEORGIA LAW AND THE FACTS OF THIS

             CASE,     DID     O.C.G.A.       §   9-11-67.1   PERMIT      THE

             WOODARDS TO DEMAND TIMELY PAYMENT AS A

             CONDITION OF ACCEPTING THEIR OFFER?

      (4)    UNDER GEORGIA LAW AND THE FACTS OF THIS

             CASE, IF THERE WAS A BINDING SETTLEMENT

             AGREEMENT, DID THE INSURER GRANGE BREACH

             THAT AGREEMENT AS TO PAYMENT, AND WHAT IS

             THE REMEDY UNDER GEORGIA LAW?

Id. at 1300-01.

C.    Proceedings before the Supreme Court of Georgia

      On March 6, 2017, the Supreme Court of Georgia issued its decision in

response to our certified questions, answering Question 2 in the affirmative and

also answering Question 3 in the affirmative as a “general issue of law,” although

it declined to consider Question 3 in the context of the facts of this case. Grange

Mut. Cas. Co. v. Woodard, 797 S.E.2d 814, 823 (Ga. 2017).

      The Georgia Supreme Court first noted that statutes are to be given their

“plain and ordinary meaning,” and that O.C.G.A. § 9-11-67.1 should be interpreted

in view of the “large body of law on contract formation generally and settlement

formation specifically.” Id. at 818-19.


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      Parsing the language of the statute, the Supreme Court of Georgia concluded

that, while O.C.G.A. § 9-11-67.1 sets forth certain terms and conditions that must

be included in every written offer of settlement, nothing in Georgia law or the

statute precludes parties from requiring “some additional act to effectuate

acceptance”:

      We agree [with the Insurer Grange] . . . that a Pre-Suit Offer must be
      accepted in writing, at least as to the five terms listed in subsection
      (a). We do not agree that this language means that a Pre-Suit Offer
      cannot also require some additional act to effectuate acceptance,
      however. . . . [T]he common law is well established that (1) the
      offeror is the master of his or her offer, and (2) agreement requires a
      meeting of the minds on all material terms. Reading the statute
      consistent with those principles, we do not equate the phrase “written
      acceptance” with necessarily effectuating a binding settlement . . . .
      Rather, written acceptance of Pre-Suit Offers is necessary to
      effectuate a binding settlement, but whether it is sufficient depends on
      the offer; if the recipient of a Pre-Suit Offer is asked to do something
      more to accept, the parties do not have a meeting of the minds if the
      recipient does not also perform that action.

Id. at 821.

      Thus, as to Question 2, the Supreme Court of Georgia concluded that

“O.C.G.A. § 9-11-67.1 permits ‘unilateral’ contracts whereby Pre-Suit Offers may

demand acceptance in the form of performance . . . before there is a binding

enforceable settlement contract.” Id. at 823. Further, as to Question 3, the court

concluded that “O.C.G.A. § 9-11-67.1 does not preclude a Pre-Suit Offer from

demanding timely payment as a condition of acceptance.” Id.



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      The Supreme Court of Georgia expressly “decline[d] to answer the Eleventh

Circuit’s questions to the extent that they call us to decide the ultimate issues in the

case, i.e., Question (1) . . . and Question (4),” leaving our Court to apply the above

Georgia law and statute to the facts of this case. Id.

      Following the Supreme Court of Georgia’s decision, we granted the parties

leave to file supplemental letter briefs. The parties filed their supplemental briefs

in May 2017.

                   III. ISSUES NOW BEFORE THIS COURT

      The Supreme Court of Georgia’s partial answers to our certified questions

resolved the questions of statutory interpretation involved in this appeal. However,

the Supreme Court of Georgia’s opinion left two issues unresolved. First, while

the Georgia Supreme Court concluded that, as a “general issue of law,” O.C.G.A.

§ 9-11-67.1 allows offerors to demand timely payment as a precondition to

acceptance of their offer, the court specifically “decline[d] to consider it in the

context of the facts of this case.” Id. at 823. In other words, we must still resolve

whether the terms of the Woodards’ June 19 offer letter made timely payment a

precondition of acceptance. Second, if the offer letter did make timely payment a

precondition, we must address whether the Insurer Grange complied with this

requirement by issuing the checks on July 29.




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      Because the Supreme Court of Georgia’s answers to our certified questions

did not resolve these outstanding issues (and we did not address them in our first

opinion in this case), we will turn to them now.

                         IV. STANDARD OF REVIEW

      We review the district court’s interpretation of a contract de novo. Rose v.

M/V “Gulf Stream Falcon”, 186 F.3d 1345, 1350 (11th Cir. 1999). Under Georgia

law, there are three steps in the process of contract construction. Ga.-Pac. Corp. v.

Lieberam, 959 F.2d 901, 904 (11th Cir. 1992) (quoting Copy Sys. of Savannah,

Inc. v. Page, 398 S.E.2d 784, 785 (Ga. Ct. App. 1990)). The court must first

decide whether the contract language in the Woodards’ June 19 offer letter is

ambiguous; if it is ambiguous, the court must then utilize the applicable rules of

construction; if an ambiguity still remains, a jury must then resolve the ambiguity.

Id. “Whether a contract is ambiguous is a question of law for the courts to decide.”

Id.

      When interpreting a contract, the language must be afforded “its literal

meaning and plain ordinary words given their usual significance.” Unified Gov’t

of Athens-Clarke Cty. v. McCrary, 635 S.E.2d 150, 152 (Ga. 2006).

“[D]ictionaries may supply the plain and ordinary meaning of a word.” Capital

Color Printing, Inc. v. Ahern, 661 S.E.2d 578, 583 (Ga. Ct. App. 2008) (alteration

and quotation marks omitted). When the language in a contract is ambiguous,


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however, courts must resort to rules of contract construction. Atlanta Emergency

Servs., LLC v. Clark, 761 S.E.2d 437, 441 (Ga. Ct. App. 2014). Georgia courts

explain that:

      Ambiguity exists where the words used in the contract leave the intent
      of the parties in question–i.e., that intent is uncertain, unclear, or is
      open to various interpretations. Conversely, no ambiguity exists
      where, examining the contract as a whole and affording the words
      used therein their plain and ordinary meaning, the contract is capable
      of only one reasonable interpretation.

Capital Color Printing, 661 S.E.2d at 583 (citations and quotation marks omitted).

Ambiguities are construed against the contract’s drafter. Auto-Owners Ins. Co. v.

Neisler, 779 S.E.2d 55, 59 (Ga. Ct. App. 2015). Where the parties’ intention is not

resolved by the application of the rules of contract construction or by parol

evidence, there exists a question of fact that precludes summary judgment. Krogh

v. Pargar, LLC, 625 S.E.2d 435, 440 (Ga. Ct. App. 2005). If the existence of an

agreement is in dispute, the proponent of the agreement must establish its

existence. Herring v. Dunning, 446 S.E.2d 199, 202 (Ga. Ct. App. 1994).

                                 V. DISCUSSION

A.    Whether the Woodards’ Offer Made Timely Payment an Element of
      Acceptance

      The Supreme Court of Georgia expressly ruled in this case that while an

offer made under O.C.G.A. 9-11-67.1(f)(1) requires a written acceptance as to the

five terms listed in subsection (a) it may also “require some additional act to


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effectuate acceptance.” Grange Mut., 797 S.E.2d at 821. It simply depends on the

terms of the offer. Id. Thus, we must determine whether the Woodards’ June 19

offer letter made timely payment an element of acceptance. We hold that it did.

      Before the Woodards’ letter listed the items the Insurer Grange had to

comply with to accept the offer, it wrote, in bold, “The following items must be

noted and fully and strictly complied with in order to accept this offer.” Then, in

both paragraphs in which the Woodards demanded $50,000 checks to settle their

claims, they stated: “Timely payment is an essential element of acceptance.”

Similarly, the offer stated, with regard to the required affidavits: “Your acceptance

of this offer requires one affidavit from . . . .” The Woodards therefore wrote in

several places that all of the listed items were required for acceptance, as opposed

to required for performance.

      We recognize that the June 19 offer letter also stated that (1) “you have 30

days from your receipt of this offer to accept it,” (2) “[y]our acceptance of this

offer must be made in writing,” and (3) the affidavits and checks were due after the

30-day period. But this language does not undermine the plain language of the

offer letter as a whole, which contained multiple clear statements that fulfillment of

all eleven conditions was necessary for acceptance. See Alea London Ltd. v. Am.

Home Servs., Inc., 638 F.3d 768, 773 (11th Cir. 2011) (explaining that Georgia

law directs courts to examine contracts as a whole). Therefore, by its terms, the


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June 19 offer letter made payment an essential element of acceptance, not

performance.

      The Insurer Grange attempts to minimize the effect of the offer letter’s

statement that “[t]imely payment is an essential element of acceptance” by arguing

that the term “essential element of acceptance” is an undefined and unrecognizable

“legal term of art” and that the timely payment language is “precatory.” These

arguments are meritless. Under Georgia law, “unless the contract indicates

otherwise, ‘we generally accept that contractual terms carry their ordinary

meanings.’” Lafarge Bldg. Materials, Inc. v. Thompson, 763 S.E.2d 444, 446 (Ga.

2014). “Essential” means “[a]bsolutely necessary” or “indispensably requisite.”

Oxford English Dictionary, available at

http://www.oed.com/view/Entry/64503?redirectedFrom=essential#eid. “Essential

element of acceptance” is a simple concept to understand and should be given its

ordinary meaning—that payment was an “absolutely necessary” element of

acceptance of the offer. Additionally, the timely payment language in the June 19

offer letter was not “precatory” because that language was not presented as merely

recommended, but as required. See Kemper v. Brown, 754 S.E.2d 141, 144 (Ga.

Ct. App. 2014) (“Precatory words are words whose ordinary significance imports

entreaty, recommendation, or expectation rather than any mandatory direction.”)

(quotation marks omitted).


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B.    Whether the Insurer Grange Complied with the Payment Precondition

      We now turn to the more challenging issue of whether the Insurer Grange’s

July 29 issuance of the two $50,000 checks with incomplete addresses satisfied the

offer’s timely-payment condition. It is undisputed that those two checks were not

received by the Woodards or their attorney.

      Again, the operative language in the June 19 offer letter was: “If payment is

not tendered in cash pursuant to O.C.G.A. 9-11-67.1(f)(1), payment in the amount

of $50,000 must be made payable to ‘[claimant(s) and their attorney]’ within ten

(10) days after your written acceptance of this offer to settle. Timely payment is

an essential element of acceptance.” The district court found that “any ambiguity

created by the first sentence is immediately cured by the second sentence. Timely

payment, and not just writing the checks in a timely manner, was an essential

element of acceptance.”

      As the district court correctly observed, Black’s Law Dictionary defines

“payment” as the “[p]erformance of an obligation by the delivery of money . . . .”

Black’s Law Dictionary (10th ed. 2014) (emphasis added). “Delivery,” in turn,

means “[t]he formal act of voluntarily transferring something; esp. the act of

bringing goods, letters, etc. to a particular person or place.” Black’s Law

Dictionary (10th ed. 2014). In other words, “payment” requires the “delivery” of


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money, and “delivery” requires an actual transfer. Thus, payment is complete only

when the money changes hands. As the district court also correctly reasoned and

concluded, the Insurer Grange, under this standard, did not make timely payment

and, thus, did not accept the Woodards’ offer.

      The Insurer Grange argues that the June 19 offer letter required only that

payment be “made payable” to the Woodards and that making out settlement

checks falls within the ordinary meaning of that undefined term or that, at the very

least, the terms “made payable” and “timely payment” are ambiguous. But these

arguments isolate the words “must be made payable” and takes them out of context

from both the full sentence containing that phrase and the next sentence in that

provision. In this case, and taking the offer letter as a whole, there is only one

reasonable interpretation—that the checks had to be delivered within ten days. See

Capital Color Printing, 661 S.E.2d at 583. Additionally, the Insurer Grange’s

argument would be an unreasonable and unworkable standard going forward. If

“payment” was effectuated simply upon the writing of a check, then offerees could

simply write checks and sit on them indefinitely.

      That brings us to the final question: Does Georgia’s mailbox rule make the

Insurer Grange’s payment (and acceptance) timely? As an initial matter, we note

that the Insurer Grange, in its reply brief before this Court, wrote that: “[The

Woodards] point out . . . that ‘Grange cannot take advantage of the ‘mailbox rule’


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of acceptance.’ . . . So be it. Grange never argued the mailbox rule in support of

its position[.]” But even had the Insurer Grange not made this concession, the

improperly addressed envelope forecloses any reliance on the mailbox rule under

Georgia law. See Ga. Contracts Law and Litigation § 3:3 (2d ed. 2016) (“The

‘mailbox rule’ provides that where the acceptance is deposited in a properly

stamped and addressed envelope, the contract becomes complete and binding,

whether or not the acceptance actually reaches the addressee”); Carterosa, Ltd. v.

Gen. Star Indem. Co., 489 S.E.2d 83, 87 (Ga. Ct. App. 1997) (explaining that the

mailbox rule applies where “the recipient of the offer thus duly deposits his

acceptance in the mail, in an envelope properly stamped and addressed to the

offeror”).

                                VI. CONCLUSION

      In light of the Supreme Court of Georgia’s decision on Certified Questions 2

and 3 and our above analysis of Questions 1 and 3 (which together render Question

4 moot), we conclude that the district court correctly determined that: (1) O.C.G.A.

§ 9-11-67.1 does not prohibit a party from requiring timely payment as a condition

of acceptance of a settlement offer; (2) the Woodards’ June 19 offer letter—which

stated that all eleven listed items had to be “noted and fully and strictly complied

with in order to accept this offer” and that “[t]imely payment is an essential

element of acceptance”—unambiguously conditioned acceptance on timely


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payment; (3) the Insurer Grange’s issuance of two $50,000 checks with incomplete

addresses, which never reached the Woodards or their attorney, did not satisfy this

timely-payment condition; and (4) the Insurer Grange failed to accept the

Woodards’ settlement offer, thus preventing the formation of a binding settlement

agreement. Accordingly, we affirm the district court’s grant of summary judgment

to the Woodards.

      AFFIRMED.




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