       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

 JOHNNY THOMPSON, as Personal Representative of the ESTATE OF
 SCOTT THOMPSON, on behalf of the surviving parents, JOHNNY and
                   MARIE THOMPSON,
                        Appellant,

                                     v.

 ESTATE OF KENDRICK KEVIN MAURICE, CHRISTICE GUILLAUME,
         JACKSON JOSEPH and PATRICIA GUILLAUME,
                        Appellees.

                              No. 4D13-2618

                          [ November 12, 2014 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No. 11-6135 (21).

  Elliot B. Kula, and W. Aaron Daniel, Aventura, and David Kleinberg of
Neufeld, Kleinberg & Pinkiert, P.A., Aventura, for appellant.

  Dennis P. Dore and Paula Parker, Jacksonville, for Appellees-Estate of
Maurice, Christine Guillaume, Jackson Joseph and Patricia Guillaume.

TAYLOR, J.

   This appeal arises from the trial court’s orders granting the defendants’
motion to enforce a pre-suit settlement and motion for summary judgment
in a wrongful death action.         The issue is whether the evidence
demonstrated that the parties reached a binding settlement agreement
before appellant filed suit. Because the evidence failed to support a finding
that there was a meeting of the minds between the parties as to every
essential element, we reverse.

   The plaintiff’s son, Scott Thompson, was a passenger in a car that spun
out of control, causing an accident that resulted in the death of everyone
in the car. On February 9, 2011, plaintiff, as personal representative of
the Estate of Scott Thompson, on behalf of the surviving parents, sent a
demand letter through his counsel to GEICO Insurance Company,
(“GEICO”). In his demand letter, plaintiff made a settlement offer
enumerating four conditions for acceptance:

      1) Receipt of an affidavit of no additional insurance coverage
         executed and notarized by a representative of GEICO
         Insurance Company.

      2) Receipt by our office a [sic] certified policy # 4186492783.

      3) Tender of a property damage check in the amount of
         $1,830.00 made payable to the Estate of Scott Thompson.
         ...
                                ....

      4) Tender of a settlement draft in the full amount of the bodily
         injury policy limits available for your insured, made
         payable to the Estate of Scott Thompson and Ellis, Ged &
         Bodden, P.A. Please be advised that this settlement offer
         will remain open until 5:00 p.m. on March 9, 2011. . . .

On March 4, 2011, GEICO responded to the plaintiff’s demand letter,
stating:

      Please accept the following as a complete acceptance of the
      terms and conditions of your demand letter of February 9,
      2011, within the 30 day demand timeframe. According to
      those terms and conditions, enclosed please find the following:

      1. An Affidavit of no additional insurance coverage, executed
         and notarized by a representative of GEICO Insurance
         Company;

      2. Another certified copy of policy number 4186492783,
         which had previously been forwarded to you;

      3. A Property Damage check in the amount of $1,830.00
         made payable to the Estate of Scott Thompson; and

      4. The settlement draft in full amount of the Bodily Injury
         policy limits of $20,000.00 made payable to the Estate of
         Scott Thompson and Ellis, Ged & Bodden, P.A.

    GEICO’s responsive letter mirrored the four settlement conditions set
out in plaintiff’s demand letter. However, the letter went on to state the
following:

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     In addition to the above, please also find enclosed the
     following:

     1. An Affidavit of Christice Guillaume, also attesting that she
        had no additional insurance coverage available for the
        subject accident; and

     2. 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, 342 Fed. Appx. 485 (11th Cir. Ct.
        of Appeals 2009).

     We would appreciate receipt of the executed release, along
     with a copy of the Letters of Administration of the Estate, prior
     to disbursement of the proceeds of this settlement.

(emphasis added).

  The release contained the following indemnification language:

     Further, in return for the above-recited consideration, I do
     hereby agree to fully indemnify and hold harmless the above
     released parties against any and all claims, liens, or rights of
     reimbursement by any person, entity or insurance carrier,
     personal injury protection carrier, or health, surgical,
     medical, or hospitalization insurer, whether group or
     otherwise, arising out of the alleged incident, by myself or my
     claims for damages arising therefrom, including but not
     limited to any expenses arising out of services rendered in
     connection with the aforementioned injuries or damages; said
     agreement to indemnify and hold harmless to include
     attorneys’ fees incurred by the aforementioned released
     parties herein as a result of any claims against them from the
     aforementioned incident. I further agree to fully indemnify
     and hold harmless the above released parties against any and
     all derivative claims arising out of the alleged incident,
     including but not limited to, any claims for loss of consortium;
     said agreement to indemnify and hold harmless to include
     attorney’s fees incurred by the aforementioned released
     parties herein as a result of any claims against them from the
     aforementioned incident.

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    On March 15, 2011, the plaintiff filed a complaint against the Estate of
Kendrick Kevin Maurice, Christice Guillaume, Jackson Joseph, and
Patricia Guillaume. As amended, the complaint alleged that on the date
of the incident, Kendrick Kevin Maurice was driving a car, with the consent
of the owners/lessors, and negligently caused the vehicle to spiral out of
control and collide with a tree, killing Scott Thompson. The amended
complaint asserted four counts against defendants as follows: Count 1,
Negligence of Estate of Kendrick Kevin Maurice; Count 2, Vicarious
Liability against Christice Guillaume; Count 3, Vicarious Liability against
Jackson Joseph; and Count 4, Vicarious Liability against Patricia
Guillaume.

    Defendants Christice Guillaume, Jackson Joseph, and Patricia
Guillaume together filed an Answer and Affirmative Defenses, wherein they
asserted as their fifth affirmative defense that, “a settlement was reached
by and between the Plaintiffs and certain Defendants, and to the extent of
that settlement, this action is barred by the Doctrine of Accord and
Satisfaction.” The Estate of Kendrick Kevin Maurice filed its Answer and
Affirmative Defenses, also asserting as its fifth affirmative defense that a
settlement had been reached.

    The plaintiff filed a “Motion for Summary Judgment as to Defendant,
Estate of Kendrick Kevin Maurice’s Fifth Affirmative Defense,” asserting
that there was no issue of material fact as to the Estate of Kendrick Kevin
Maurice’s fifth affirmative defense and that there had been no settlement
between the parties, satisfaction and accord, agreement to settle, nor
meeting of the minds. The plaintiff attached to the motion supporting
affidavits in which he and his wife attested that no settlement had been
reached prior to suit, and that no money had been paid.

    The defendants moved for partial summary judgment, asserting that
there was no issue of material fact as to their fifth affirmative defense
because GEICO’s responsive letter constituted an acceptance of the terms
of the demand letter. The defendants attached to their motion a copy of
the demand letter and the responsive letter with its attachments. At the
same time, they filed their Motion to Enforce Settlement.

   The trial court held a hearing on all three motions. The parties agreed
that no checks had been cashed and that the release was never signed.
The plaintiff argued that GEICO’s responsive letter did not constitute an
acceptance to the demand letter, because it sought to release Patricia
Guillaume, a non-party at the time and a non-insured under GEICO’s
policy. The plaintiff also argued that the release contained objectionable

                                     4
indemnification language and a hold harmless clause. The defendants
asserted that they were entitled to request a release as part of their
acceptance, and that there had been no correspondence from the plaintiff
objecting to the release or its language.

    The trial court entered its orders: (1) granting the defendants’ Motion
for Partial Summary Judgment; (2) granting the defendants’ Motion to
Enforce Settlement; and (3) denying the plaintiff’s Motion for Summary
Judgment as to the defendant, Estate of Kendrick Kevin Maurice’s Fifth
Affirmative Defense.

   On appeal, the plaintiff argues that the trial court erred in finding that
there was an enforceable settlement agreement between the parties and
granting summary judgment in favor of the defendants. Specifically, the
plaintiff argues, as he did below, that the defendants failed to demonstrate
the plaintiff’s assent to every essential element of the agreement because
GEICO’s proposed release contained objectionable and unusual terms,
including extensive indemnification language not bargained for and the
release of Patricia Guillaume, a non-insured, non-policy holder. Contrary
to the defendants’ position, we find that this issue was preserved for our
review. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928
(Fla. 2005) (“In order to be preserved for further review by a higher court,
an issue must be presented to the lower court, and the specific legal
argument or ground to be argued on appeal or review must be part of that
presentation if it is to be considered preserved.”).

   The granting of a motion for summary judgment is reviewed de novo.
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000). Summary judgment is appropriate only where “there is no genuine
issue of material fact and if the moving party is entitled to a judgment as
a matter of law.” Fla. R. Civ. P. 1.510(c).

    The burden is on the moving party to show “conclusively the absence
of any genuine issue of material fact, and the court must draw every
possible inference in favor of the party against whom a summary judgment
is sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). “If the
evidence raises any issue of material fact, if it is conflicting, if it will permit
different reasonable inferences, or if it tends to prove the issues, it should
be submitted to the jury as a question of fact to be determined by it.” Id.

   Additionally, “[t]he interpretation of a written contract is a question of
law and the appellate court construes the contract under a de novo
standard of review.” Command Sec. Corp. v. Moffa, 84 So. 3d 1097, 1099
(Fla. 4th DCA 2012) (quoting Gilman Yacht Sales, Inc. v. FMB Invs., Inc.,

                                        5
766 So. 2d 294, 296 (Fla. 4th DCA 2000)) (internal quotation marks
omitted).

   “As settlement agreements are contractual in nature, they are
interpreted and governed by contract law.” Barone v. Rogers, 930 So. 2d
761, 763-64 (Fla. 4th DCA 2006) (citing Cheverie v. Geisser, 783 So. 2d
1115, 1118 (Fla. 4th DCA 2001)). “To be enforceable, a settlement
agreement ‘must be sufficiently specific and mutually agreeable as to every
essential element.’” Id. at 764 (quoting Long Term Mgmt., Inc. v. Univ.
Nursing Care Ctr., Inc., 704 So. 2d 669, 673 (Fla. 1st DCA 1997)). As we
explained in Cheverie, “[a]lthough the law favors settlement agreements
and their enforcement whenever possible, the evidence must clearly
demonstrate that there was mutual agreement to the material settlement
terms.” Cheverie, 783 So. 2d at 1119. Additionally, “[t]he making of a
contract depends not on the agreement of two minds in one intention but
on the agreement of two sets of external signs. A trial court’s finding of a
meeting of the minds must be supported by competent substantial
evidence.” Id. (internal citations omitted). As to the burden of proof, the
party seeking judgment on the basis of settlement bears the burden of
establishing assent by the opposing party. Id.

    “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.” Cheverie, 783 So. 2d at 1119. Therefore, acceptance of
an offer “must contain an assent to the same matters contained in the
offer.” Id.

    In Cheverie, the plaintiff’s husband died as a result of injuries he
sustained when the defendant collided with his automobile. 783 So. 2d at
1116. After several months of negotiations between the plaintiff’s attorney
and the defendant’s insurer, Allstate, plaintiff filed a wrongful death action
against the defendant. The defendant filed a counterclaim for declaratory
relief, alleging that the parties had reached a settlement agreement for the
defendant’s insurance policy limits. The plaintiff disputed this claim,
asserting that “there was no valid settlement agreement because there was
no meeting of the minds on two essential terms: (1) indemnification
language in the release proposed by Allstate; and (2) production of the
policy limits affidavit.” Id. at 1116-17.

   In reversing the trial court’s dismissal of the complaint, we concluded
that the trial court’s finding that the parties had reached an enforceable
settlement agreement was not supported by competent, substantial
evidence. We held that the indemnification language in the release

                                      6
proposed by the defendant was a crucial term, and there was no evidence
that the plaintiff agreed to the indemnification language. Id. at 1119. We
stated, “[w]here 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.” Id.

   The plaintiff acknowledges that a release is implicit in an offer of
settlement, as part of the procedure to effectuate the agreement. See
Erhardt v. Duff, 729 So. 2d 529, 530 (Fla. 4th DCA 1999) (holding that “the
execution of the release was implicit as part of the tender, and not an
additional element of the agreement”). However, he contends that the
parties in this case, as in Cheverie, failed to reach an agreement as to “the
character, nature, or type of release to be used” and establish “an essential
element of the agreement.” Cheverie, 783 So. 2d at 1118.

    Here, the plaintiff’s settlement offer did not contain any indemnification
language. Instead the offer enumerated a closed list of conditions,
“complete performance of each of 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, thereby injecting a new “essential element of the
agreement” into the pre-suit negotiations. Thus, GEICO did not assent to
“the same matters contained in the offer.” See Cheverie, 783 So. 2d at
1119. As such, GEICO’s responsive letter was not a valid acceptance, but
rather a counteroffer. See Nichols v. Hartford Ins. Co. of the Midwest, 834
So. 2d 217, 219 (Fla. 1st DCA 2002) (indemnification language is an
essential term, requiring assent to form a settlement contract); Knowling
v. Manavoglu, 73 So. 3d 301, 303-04 (Fla. 5th DCA 2011) (“[T]he release
tendered by Allstate did not meet the dictates of the offer. The offer was
expressly conditioned upon acceptance by performance, which included
the provision of a ‘ready for signature’ release to settle the claim for bodily
injury only. The tendered release purported to encompass all claims
arising from the accident, and included indemnification language, a new
term, not contained within the offer. . . . As such, the so-called acceptance
was nothing more than a counter-offer, and the plaintiff was not bound by
it in the absence of a manifestation of assent to the additional terms.”).

   Because the defendants failed to meet their burden to demonstrate
mutual assent as to every essential element of the agreement, we reverse
the orders enforcing the settlement agreement, granting summary
judgment for the defendants, and denying the plaintiff’s Motion for
Summary Judgment as to the defendant Estate of Kendrick Kevin
Maurice’s Fifth Affirmative Defense.


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  Reversed and Remanded.

WARNER and MAY, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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