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Lee v. Chmielewski

Florida Court of Appeals, Second District

November 15, 2019

H. GREG LEE, personal representative of the Estate of Raymond Consul, deceased, Appellant,
MARK CHMIELEWSKI, as court appointed guardian for Matthew Martin, Appellee.


          Appeal from the Circuit Court for Sarasota County; Frederick P. Mercurio, Judge.

          Paul L. Nettleton of Carlton Fields Jorden Burt, P.A., Miami, for Appellant.

          Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa, for Appellee.


         H. Greg Lee, personal representative of the Estate of Raymond Consul, challenges the final judgment entered in favor of Mark Chmielewski, as court-appointed guardian for Matthew Martin, in Martin's action against Consul for damages resulting from a tragic car accident that left Martin in a vegetative state.[1] We must reverse the final judgment because the trial court erred by entering summary judgment for Martin and denying Consul's summary judgment motion in which he alleged that he and Martin had entered into a binding settlement agreement prior to trial.

         Martin sustained his injuries as the result of a motor vehicle accident in which he was a passenger in a car operated by Consul. When the accident occurred on September 20, 2010, Consul had an automobile insurance policy through GEICO Indemnity Insurance Company that provided bodily injury coverage of $10, 000 per person.

         In August 2011, GEICO, operating under the mistaken belief that Martin's father Michael Martin held a power of attorney for his son, tendered a check for policy limits in the name of Michael Martin. Michael Martin cashed the check and executed a release on his son's behalf. Subsequently, in January 2012, GEICO contacted Michael Martin's former attorney seeking documentation that Michael Martin had the legal authority to represent his son. The attorney responded that she had no such documents. The record before us reflects that GEICO took no further steps to ensure that it had tendered policy limits to the correct party.

         On July 15, 2013, Chmielewski was appointed plenary guardian of the person and property of Martin. When Chmielewski learned that GEICO had tendered payment of policy limits to Martin's father, he retained counsel for Martin and authorized counsel to make an offer to GEICO to settle Martin's claim against Consul. By letter of November 26, 2013, counsel for Martin informed GEICO that any payment made to Michael Martin was unauthorized. Counsel additionally conveyed the following settlement offer:

Our client, Mr. Chmiel[ew]ski, reviewed the prior correspondence associated with the claim of Matthew and we have determined that his father, Michael Martin, was never Matthew's authorized legal representative. I understand that Geico tendered the limits of coverage to the father and apparently received a purported release of Matthew's claim. It is clear that the release was a Geico form release which was modified for execution by the father. It is now clear that Geico tendered the funds to an unauthorized representative. A part of my duties involves exploring any and all avenues of recovery for Matthew. I would like to resolve any question of the legitimacy of the prior release by providing Geico with an opportunity to tender the bodily injury limits under the above-referenced insurance policy to Matthew's legal court-appointed representative, Mark Chmiel[ew]ski, as Guardian for Matthew Martin. If this offer is accepted, I agree to have Mr. Chmielewski execute a legally-enforceable release containing the same material terms and conditions as the prior release and also obtain any required . . . guardianship court approval of the settlement.

         I believe you have received all necessary information necessary to evaluate this claim. Based on the fact that the Geico automobile insurance policy accompanying your letter to me dated 11/8/2013 reflects that the limits of bodily injury liability insurance for Mr. Consul is $10, 000 per person, please send your $10, 000 check payable to Mark Chmielewski, as Guardian for Matthew Martin. This offer will remain open for fourteen (14) days from the date of this letter after which it will be withdrawn without further notice.

         Fourteen days later, on December 10, 2013, at 5:01 p.m., GEICO faxed to Martin's counsel a letter seeking an extension of time to respond to the offer. At 5:42 p.m., GEICO sent a second fax to Martin's counsel, the cover sheet of which stated, "Acceptance of demand." The attached letter read: "In response to your demand letter dated November 26, 2013, GEICO Indemnity Company is agreeing to tender the [bodily injury] limits of $10, 000 as outlined in your demand. The check and release will follow under separate cover."[2] Additionally, GEICO instructed one of its field representatives to deliver a $10, 000 check to counsel's office. The field representative attempted to call counsel's office between 5:15 and 5:45 p.m., but no one answered. He testified at deposition that he did not leave a message and that he did not "recall having the ability to leave a message." He then went to counsel's office with the settlement check. When he arrived between 7:00 and 7:15 p.m., the front doors of the building were locked and there was no mail slot, so he left with the check. The following day, he returned to counsel's office with the check, which he left with an employee.

         On December 11, 2013, counsel for Martin sent a letter to GEICO, acknowledging receipt of the letter faxed on December 10, 2013, but stating that "the time frame for acceptance of our November 26, 2013 settlement offer expired yesterday at 5:00 p.m." Counsel also stated that Martin had directed him to move forward with a lawsuit against Consul. By letter dated December 16, 2013, counsel returned the settlement check to GEICO.

         On December 12, 2015, Chmielewski filed on Martin's behalf an action against Consul for damages incurred due to the injuries Martin suffered as a result of the accident. In his answer, Consul asserted as an affirmative defense that the action was barred by a prior settlement. Consul subsequently filed numerous motions for summary judgment, maintaining that GEICO, acting on his behalf, had accepted Martin's settlement offer either (1) by its December 10, 2013, fax in which it stated that it accepted the offer and that the check would follow; (2) by its field representative's bringing a check for policy limits to counsel's office on December 10, 2013; or (3) by delivering the check to counsel's office the next day and having it accepted by counsel's staff. The trial court, however, denied all of Consul's motions for summary judgment but granted Martin's motion for summary judgment as to his affirmative defense that Consul's claim was "barred by prior settlement and/or accord and satisfaction." In its order, the trial court ruled that "GEICO failed to tender the settlement funds as required by the settlement offer. As a result, GEICO's attempted acceptance of the settlement offer was not absolute and unconditional, identical with the offer terms, and therefore fails to comply with Florida's requirement of a mirror-image acceptance." The case then proceeded to jury trial, and the trial court entered final judgment on the jury's verdict in favor of Martin and against Consul in the amount of $14, 399, 363.05.

         On appeal, Consul argues that the trial court erred in denying his motions for summary judgment as to his settlement defense and granting summary judgment in favor of Martin because GEICO accepted the offer according to its terms when it faxed its acceptance to Martin's counsel at 5:42 p.m. on December 10, 2013. ...

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