[Cite as Cardicko v. Sweeney, 2019-Ohio-460.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                             No. 107383



                                         JOLANTA CARKIDO

                                                      PLAINTIFF-APPELLANT

                                                vs.

                                    RYAN D. SWEENEY, ET AL.

                                                      DEFENDANTS-APPELLEES


                                         JUDGMENT:
                                   REVERSED AND REMANDED




                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-17-877651

        BEFORE: Jones, J., Blackmon, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: February 7, 2019
ATTORNEYS FOR APPELLANT

Lynn A. Lazzaro
Lori A. Juka
Lazzaro Luka Law Offices, L.L.C.
2645 Wooster Road
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEES

For Ryan D. Sweeney

Larry C. Greathouse
Richard C.O. Rezie
Maia E. Jerin
Bulkley Building - Sixth Floor
1501 Euclid Avenue
Cleveland, Ohio 44115

For Allstate Insurance Company

Nicholas M. Vento
Schneider Smeltz Spieth Bell L.L.P.
1375 East 9th Street, Suite 900
Cleveland, Ohio 44114


For Findley D. Coleman

Eric K. Grinnell
Carr Law Office L.L.C.
5824 Akron-Cleveland Road, Suite A
Hudson, Ohio 44236




LARRY A. JONES, SR., J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1

and Loc.R. 11.1, and thus, under App.R. 11.1(E), we render a decision in a “brief and
conclusionary form.”

       {¶2} In this appeal, plaintiff-appellant Jolanta Carkido (“Carkido”) challenges the trial

court’s May 30, 2018 judgment granting defendant-appellee Ryan Sweeney’s (“Sweeney”) motion

to enforce the settlement and dismissing Carkido’s case.      For the reasons set forth below, we

reverse and remand.

       {¶3} The record demonstrates that on April 17, 2015, Carkido was a passenger in a vehicle

driven by defendant-appellee Findley Coleman (“Coleman”), when Coleman got in an accident

with Sweeney. Sweeney was cited by the police for the accident. Sweeney was insured under

an automobile policy with GEICO Indemnity Company.

       {¶4} On April 22, 2015, Carkido sought medical treatment at a hospital emergency room

for injuries she sustained as a result of the accident. By written communications dated April 23

and 24, 2015, GEICO contacted Carkido in regard to the accident. In the April 23 letter, the

adjuster informed Carkido that the insurance company did not have any of her treatment records

or bills relative to the accident, which it needed to process a claim, and asked her to sign a HIPPA

release. The April 24 letter stated that Carkido’s injuries occurred because she “failed to keep

proper lookout and take evasive action to avoid collision.”      Later in the letter, however, the

adjuster attributed 50% of fault for the accident to Sweeney and 50% of fault to Coleman, the

driver of the vehicle Carkido was in.

       {¶5} On April 28, 2015, Carkido spoke with GEICO representative Christina Beverage.

At least part of the conversation was recorded. The pertinent part of the conversation was as

follows:

       [Beverage:] The purpose of this recorded conversation is to make a record of the
       bodily injury settlement of a claim by Ms. Jolanta Carkido for bodily injury
       resulting from the automobile accident on April 17, 2015 in Strongsville, Ohio
       involving an automobile driven by Ryan Sween[e]y and insured under the name of
       Ryan Sween[e]y; is that correct?

       [Carkido:] Um, I wasn’t aware of the male driving.   I didn’t know his name.

       [Beverage:] Okay. * * *[H]e’s our insured, Ryan Sween[e]y.

       [Carkido:]    Then yes.

       [Beverage:] Okay. Ms. Carkido, we have agreed to settle your bodily injury claim
       for $2,229.50. Settling this bodily injury claim means GEICO will pay to you on
       behalf of Ryan Sween[e]y $2,229.50, and with your acceptance, you will give up
       any and all rights to file a lawsuit or make any further claim for bodily injury
       against Ryan Sween[e]y for the accident of April 17, 2015. Do you agree to
       accept $2,229.50 in full and final settlement of your bodily injury claim against
       Ryan Sween[e]y for the accident of April 17, 2015, and release him from any
       further liability?

       [Carkido:] Yes.

       [Beverage:] You’re agreeing to indemnify and hold harmless Ryan Sween[e]y and
       GEICO Insurance Company from any and all claims relating to your injury, illness,
       or disease related to the accident of April 17, 2015; is that correct?

       [Carkido:] Yes.

       [Beverage:] And is it your desire to settle this claim as discussed and release Ryan
       Sween[e]y?

       [Carkido:] Uh, yes.

       [Beverage:]    Okay. Have you understood all of the questions?

       [Carkido:] I think I have.

       {¶6} GEICO sent Carkido a check dated April 28, 2015, in the amount of $2,229.50, and

requested that Carkido sign and return a release. Carkido never cashed the checked nor signed

and returned the release.

       {¶7} In March 2017, Carkido filed this action against Sweeney, Coleman, and Allstate
Insurance Company.1         Coleman answered the complaint and asserted affirmative defenses, one

of them being that he was not the proximate cause of the accident. Allstate also answered the

complaint and generally denied liability; it filed a cross-claim against Sweeney for subrogation.

        {¶8} Sweeney answered the complaint and asserted numerous affirmative defenses. One

of his defenses was that Carkido’s claims against him were “barred on the basis that [she] entered

into a totally binding and enforceable settlement contract.” Sweeney also cross-claimed against

Coleman, claiming that he was the proximate cause of the accident, but sought full

indemnification and contribution from Coleman in the event Carkido was awarded a judgment

against him (Sweeney).

        {¶9} Sweeney filed a motion to enforce the prior settlement agreement. Carkido opposed

the motion. According to Carkido, only part of the April 28, 2015 conversation with GEICO

representative Beverage was recorded. Carkido claimed that in the other part of the conversation

that was not recorded, Beverage did not explain to her that she would be surrogated to her health

insurer, Cleveland Clinic Employee Health Plan.

        {¶10} Further, Carkido contended that as a layperson, she did not understand the “legal

ramifications of the terms ‘settlement,’ ‘release,’ * * * the concept of subrogation * * * [and] was

not aware of the financial responsibilities that would follow her medical treatment stemming from

the motor vehicle accident.” Carkido maintained that a GEICO representative “began to contact

her at least one time a day and upwards of two times a day every day in order to negotiate a

settlement.” At the time the alleged settlement was negotiated, Carkido had not yet completed

her medical treatment, not signed the HIPPA releases, nor obtained a lawyer.


        1
          Carkido alleged in her complaint that Coleman had “negligently operated his vehicle and caused a collision
with Defendant Ryan D. Sweeney’s vehicle.” She alleged that Coleman was insured by Allstate under a policy
issued to non-party Richard Coleman (presumably a relative of Coleman’s) and sought coverage under that policy.
         {¶11} The trial court held a hearing on the motion to enforce the settlement agreement.

Carkido’s attorney told the court that at the time of the alleged settlement, Carkido had not

received any bills for her treatment. The bill for the emergency room visit was $4,306.05, and

another bill from the treating physician was $1,321. The attorney also reiterated to the court that

Carkido had not signed any HIPPA releases and, therefore, GEICO did not have any of her

treatment or billing records at the time of the settlement.

         {¶12} The court issued a judgment granting Sweeney’s motion to enforce the settlement

and dismissing Carkido’s case against him. The other parties dismissed their claims as well.

Carkido now appeals, asserting two assignments of error, in which she collectively maintains that

the trial court improperly granted the motion to enforce the settlement agreement because it did

not meet the elements required to form a valid contract.

         {¶13} A settlement agreement is a contract designed to terminate a claim by preventing or

ending litigation. Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson,

Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). Like any other contract, it requires an

offer, acceptance, consideration and mutual assent between two or more parties with the legal

capacity to act. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16; Rulli

v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). For a contract to be enforceable,

there must be a “meeting of the minds” as to the essential terms of the agreement.   Kostelnik at ¶

16-17.    The essential terms of the agreement must be “‘reasonably certain and clear’” and

mutually understood by the parties. Id., quoting Rulli at id. As the Rulli court explained:

         “A court cannot enforce a contract unless it can determine what it is. * * * [The
         parties] must have expressed their intentions in a manner that is capable of being
         understood. It is not even enough that they had actually agreed, if their
         expressions, when interpreted in the light of accompanying factors and
         circumstances, are not such that the court can determine what the terms of that
          agreement are.”

Rulli at id., quoting 1 Corbin on Contracts, Section 4.1, at 525 (Rev.Ed.1993). The burden of

establishing the existence and terms of a settlement agreement lies with the party who claims it

exists.    Turoczy Bonding Co. v. Mitchell, 8th Dist. Cuyahoga No. 106494, 2018-Ohio-3173, ¶ 19,

citing Nilavar v. Osborn, 127 Ohio App.3d 1, 11, 711 N.E.2d 726 (2d Dist.1998).

          {¶14} Once a settlement offer has been accepted, the settlement agreement is mutually

binding; the settlement agreement cannot be set aside simply because one of the parties later

changes its mind. Turoczy at ¶ 18 (“Once there is * * * a meeting of the minds, one cannot

refuse to proceed with settlement due to a mere change of mind.”), citing Mack v. Polson Rubber

Co., 14 Ohio St.3d 34, 36-37, 470 N.E.2d 902 (1984).

          {¶15} “An oral settlement agreement ‘can be enforced by the court in those circumstances

where the terms of the agreement can be established by clear and convincing evidence.’” Shelter

v. Shelter, 9th Dist. Wayne No. 00CA0070, 2001 Ohio App. LEXIS 2289, quoting Pawlowski v.

Pawlowski, 83 Ohio App.3d 794, 799, 615 N.E.2d 1071 (10th Dist.1992).

          {¶16} The standard of review to be applied when reviewing a ruling on a motion to

enforce a settlement agreement depends on the question presented.       If the question is a factual or

evidentiary one, the reviewing court will not overturn the trial court’s finding if there was

sufficient evidence to support the finding.      Turoczy Bonding Co., 8th Dist. Cuyahoga No.

106494, 2018-Ohio-3173 at ¶ 15, citing Chirchiglia v. Ohio Bur. of Workers’ Comp., 138 Ohio

App.3d 676, 679, 742 N.E.2d 180 (7th Dist.2000). If the issue is a question of contract law, the

reviewing court must review the decision de novo to determine whether it is based on an

erroneous standard or a misconstruction of the law.      Turoczy at id. Carkido contends, and we

agree, that the issue here presents a question of law and, therefore, is subject to a de novo review.
        {¶17} According to Carkido, there was no meeting of the minds as to the essential terms of

the alleged settlement agreement.          She maintains that her responses recorded during the call

indicate her “hesitancy to settle and uncertainty as to whether she understood the essential terms

of the alleged settlement agreement.” Specifically, as mentioned, Carkido maintains that she did

not understand the following essential terms: (1) that she would become subrogated to Cleveland

Clinic Employee Health Plan; (2) whether GEICO would pay the cost of her subrogation to her

health plan; (3) the total cost of her medical treatment due to the accident as of the time of the

alleged settlement; and (4) whether GEICO would pay for future medical costs associated with the

accident. Carkido cites Noroski v. Fallet, 2 Ohio St.3d 77, 442 N.E.2d 1302 (1982), in support

of her position; we find it instructive.

        {¶18} In Noroski, the plaintiff was involved in an automobile accident with the defendant.

 The plaintiff sustained injuries as a result of the accident, causing him to incur medical expenses

and lost wages. Approximately two weeks after the accident, an adjuster for the defendant’s

insurer contacted the plaintiff by phone to discuss his damages as a result of the accident. The

plaintiff informed the adjuster that he had incurred $429.76 in property damage. Thereafter, the

adjuster sent the plaintiff a check, which included the sums of $429.76 for the property damage

and a $25 allowance for the anticipated medical expense of

x-rays for a total of $454.76. The adjuster also sent a release form and asked the plaintiff to sign

and return it. The plaintiff neither signed and returned the release nor did he cash the check.

        {¶19} Approximately two months later, the plaintiff mailed copies of medical bills totaling

$119.10 and a copy of the previously issued uncashed check to the insurance company.         Several

weeks after that, the plaintiff and the adjuster spoke again by phone; part of the conversation was

recorded. The relevant part of the conversation was as follows:
       [Adjuster:] Do you agree that the draft I will be sending you in the total amount
       of $754.40 is the full and complete settlement for your bodily injuries as well as
       the property damage resulting from this accident?

       [Plaintiff:]   Yes.

Id. at 78-79.

       {¶20} As a result of that conversation, the insurance company sent another check to the

plaintiff for $299.64, all but $100 of which was for property damage and medical expenses.

Nothing appeared on the check indicating that it was a complete settlement and release of all

claims. The plaintiff cashed that check, as well as the first one, which together totaled $754.40.

       {¶21} Thereafter, the plaintiff incurred substantial additional medical expenses and lost

wages, which the insurance company refused to cover. The plaintiff brought an action, and the

insurance company raised full and complete settlement as an affirmative defense.                After a

hearing, the trial court ruled that, although the adjuster had failed to follow the company’s policy

for a telephone release, the recorded conversation nonetheless constituted a valid and enforceable

release of all claims arising out of the accident. The Sixth Appellate District affirmed the trial

court. Noroski v. Fallet, 6th Dist. Ottawa No. OT-81-5, 1981 Ohio App. LEXIS 10352.

       {¶22} On appeal to the Ohio Supreme Court, the issue was framed as “whether the

recorded telephone conversation relied upon by [the insurance company] constitutes a valid and

enforceable release.” Noroski, 2 Ohio St.3d at 79, 442 N.E.2d 1302. The court answered that it

did not. Specifically, the court found that, based on its “examination of the record and the facts

surrounding the purported release,” “no meeting of the minds occurred in this case.”           Id. The

court noted that during the telephone conversation there was “no reference to the term ‘release,’

speaking instead of ‘full and complete settlement.’” Id. The court reasoned that the plaintiff, a

civil engineer, “had little familiarity with the legal ramifications of ‘settlement’ or ‘release’ * * *.”
 Id.

         {¶23} Moreover, in addition to failing to follow its own protocol for obtaining a telephone

release, the court found that the insurance company’s “piecemeal manner in which the recorded

statement was made by the adjuster renders unavailable further clarifying statements concerning

the meaning of the purported release which may have been made [during] the conversation.”         Id.

at 80.

         {¶24} This case presents similarities to Noroski. Specifically, Carkido never executed a

release (or cashed the check for that matter); GEICO failed to follow its own policy of obtaining

the medical records and any bills associated with Carkido’s damages prior to settling (and Carkido

did not have any indication what her damages were at the time of the alleged settlement); the

record seems to indicate that Carkido had little familiarity with the legal process of settling a

claim; and, according to Carkido, there were portions of her conversation with Beverage that were

not recorded. Additionally, the alleged settlement occurred a mere 11 days after the accident and

under circumstances that evidence the company’s confusion about who was at fault for the

accident.

         {¶25} In light of the above, the trial court erred in granting the motion to enforce the

settlement agreement.     The two assignments of error are sustained.

         {¶26} Judgment reversed; case remanded.

         It is ordered that appellant recover of appellees costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the Cuyahoga County

Court of Common Pleas to carry this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR
