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Tovar v. Russell

Florida Court of Appeals, Fourth District

February 28, 2018

ANIBAL TOVAR, Appellant,
v.
JENNIKA RUSSELL, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE 16017545 (14).

          Brett C. Powell of The Powell Law Firm, P.A., Miami, for appellant.

          Neil Rose of Bernstein, Chackman, Liss, Hollywood, for appellee.

          May, J.

         This case invokes a fundamental tenet of contract law: the symmetry needed between an offer and an acceptance to establish an enforceable agreement. The plaintiff appeals an order enforcing a settlement agreement. He argues the trial court erred in enforcing the agreement because there was no meeting of the minds. We disagree and affirm.

         The plaintiff[1] was injured in an automobile accident with the defendant. State Farm insured the defendant. The policy contained a $25, 000 limit for bodily injury liability per person, a $50, 000 limit for bodily injury per accident, and a $10, 000 limit for property damage liability.

         Before filing suit, plaintiff's counsel delivered a settlement offer to State Farm, requesting State Farm to: (1) tender its policy limits of $50, 000; (2) reimburse the plaintiff an additional $10, 044 for his property loss; (3) provide an affidavit from the defendant stating she had no other insurance coverage; and (4) provide a certified copy of the defendant's insurance policy. The settlement offer did not address a release.

         After receiving the letter, State Farm accepted the offer and provided the plaintiff with all requested documents. State Farm enclosed a proposed release and requested it to be executed by the plaintiff and his mother. State Farm's letter stated:

Execution of the proposed release is not a condition of settlement. Furthermore, the proposed release is not intended to constitute a counter-offer to your settlement offer, or to add any new terms or conditions to your proposed settlement agreement. . . . If the proposed release is not acceptable to you, please contact me so that we can attempt to reach an agreement as to release language that is mutually acceptable and consistent with your settlement offer.

         The plaintiff rejected State Farm's proposed release in a letter, claiming the release contained unusual terms that placed an undue burden on him. He requested State Farm provide a standard release. Although he did not specify the nature of his concern about the release, he suggests on appeal that the release contained uncommon restrictions on how the settlement funds could be spent.

         State Farm responded with a letter enclosing two proposed releases: a revised version of the initial release, and a standard release drafted by the Trial Lawyers Section of the Florida Bar. The letter stated:

While it is our preference to have a release executed that memorializes the settlement of the bodily injury claims, execution of a release of the bodily injury claim is not a condition of settlement. Accordingly, if the enclosed releases are not acceptable to you, we withdraw our request for a release.

         Plaintiff's counsel responded by returning the check and requesting State Farm to issue two new checks: one for $10, 044 covering the plaintiff's property damage, and another for $25, 000 issued to the plaintiff's mother. The letter instructed State Farm not to ...


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