Conduct-Based Acceptance of a Nonconforming OCGA § 9-11-67.1 Response Creates an Enforceable Settlement Covering Additional Insureds Named in the Counteroffer

1. Introduction

This Court of Appeals of Georgia decision in SLAUGHTER et al. v. CRAVENS; and vice versa. arises from a rear-end collision in which Ashleigh Slaughter, driving a minivan connected to Locust Grove Flowers and Gifts, struck Jack Cravens after looking down at cell-phone navigation. Cravens sued Slaughter and the flower shop’s owners, Thomas West and Janet Davis-West, asserting negligence claims against Slaughter and vicarious-liability and employment/entrustment theories against the owners, plus punitive damages and attorney fees.

The appeal centers on whether a pre-suit policy-limits “demand” and the insurer’s nonconforming response produced an enforceable settlement under Georgia’s settlement-demand statute (the 2013 version of OCGA § 9-11-67.1) and general contract principles—particularly where the plaintiff later used the insurer’s tendered check and release to pursue uninsured/underinsured motorist (“UM”) benefits.

Key issues: (i) whether the insurer accepted Cravens’s statutory offer despite a nonconforming check and release; (ii) if not, whether the insurer’s response was a counteroffer that Cravens accepted by conduct; and (iii) whether any settlement included Janet Davis-West, who was not listed in Cravens’s original demand but was named in the insurer-drafted release.

2. Summary of the Opinion

The Court of Appeals held that the insurer’s response did not strictly accept Cravens’s OCGA § 9-11-67.1 offer because the tender included a nonconforming release (adding Janet and including indemnification language) and a nonconforming check. That response therefore functioned as a counteroffer.

Nonetheless, the Court concluded that Cravens accepted the counteroffer by conduct, chiefly because his counsel used the insurer’s tendered check and release to pursue and resolve UM benefits—something that objectively signals exhaustion/settlement of liability limits as required by UM law. As a result, the Court found a binding settlement existed and that it covered all three defendants, including Janet (because she was named in the counteroffer release Cravens accepted).

The Court reversed the trial court’s reconsideration order that had vacated enforcement of the settlement, vacated remaining pretrial/evidentiary/summary-judgment rulings as unnecessary in light of the settlement, remanded for further proceedings consistent with the settlement, and dismissed Cravens’s cross-appeal as moot.

3. Analysis

3.1. Precedents Cited

Standards of review and settlement-enforcement framework

  • Anderson v. Benton — supplied the de novo review posture and the “no jury issue on an essential element” framing for motions to enforce settlement agreements, treated as analogous to summary judgment.
  • Diaz v. Thweatt and Wright v. Nelson — reinforced de novo review and the summary-judgment-like lens for settlement enforcement when the trial court decides the issue on the record without taking evidence.

OCGA § 9-11-67.1 and contract-formation principles (offer/mastery; meeting of the minds)

  • Patrick v. Kingston and White v. Cheek — emphasized that OCGA § 9-11-67.1 was enacted against established contract law: settlements require mutual assent; the offeror remains “master of the offer.”
  • Francis v. Chavis — reiterated Georgia’s policy favoring compromise and enforcing definite, certain, unambiguous settlements.
  • Grange Mut. Cas. Co. v. Woodard — restated the strict acceptance rule: acceptance must be unconditional and identical to the offer; variance prevents formation on the offer’s terms.

Nonconforming responses under the 2013 statute: counteroffers and failed acceptances

  • Pritchard v. Mendoza, Bennett v. Novas, Ligon v. Hu, Jervis v. Amos, and Duenas v. Cook — used to support the Court’s conclusion that a nonconforming release or failure to meet stated conditions of acceptance prevents a statutory acceptance and instead constitutes (at best) a counteroffer.
  • Grove v. Gibbs — cited for analysis of settlement formation where the record showed no clear mutual assent (including issues surrounding release discussion and non-deposit of the settlement check), illustrating when courts decline to find a settlement on contested facts.
  • Diaz v. Thweatt (comparison) — distinguished outcomes under later-amended versions of OCGA § 9-11-67.1, where certain nonconforming release issues may not defeat acceptance in the same way.

Course-of-conduct acceptance and objective intent

  • Netsoft Assocs. v. Flairsoft, Ltd. — supported the principle that a contract can arise from conduct and mutual acquiescence, not only formal words.
  • Turner v. Williamson — used both as (i) a contrast (pre-statute context where release terms may go to performance rather than acceptance) and (ii) support for considering communications and conduct in determining whether settlement was reached.

UM “exhaustion” doctrine driving the objective-intent inference

  • Thompson v. Allstate Ins. Co., Carter v. Progressive Mountain Ins., and Daniels v. Johnson — established that exhausting available liability coverage is a condition precedent to recovering UM benefits; thus, using a liability-limits tender to pursue UM benefits objectively signals the liability claim has been settled/exhausted.

Release construction

  • Avery v. Grubb — supplied the contract-construction rule: clear, unambiguous release language controls; the court looks to the written contract to determine intent.

3.2. Legal Reasoning

(a) No statutory acceptance of Cravens’s offer under OCGA § 9-11-67.1 (a)

The Court first applied strict acceptance principles (anchored in Grange Mut. Cas. Co. v. Woodard) to Cravens’s demand. Even though Cravens purported to make a policy-limits offer, the insurer’s response included:

  • a release naming an additional party (Janet) not listed in the demand;
  • indemnification language contrary to the demand’s stated “must not contain any indemnification language”; and
  • a check not drafted precisely as demanded (and the demand purported to make “performance” a condition of acceptance).

Under the 2013 statutory regime and the cited authorities (including Pritchard v. Mendoza and Duenas v. Cook), that nonconformity prevented the insurer from being deemed to have accepted Cravens’s offer. The insurer’s tender was therefore treated as a counteroffer.

(b) Acceptance of the counteroffer by conduct under OCGA § 9-11-67.1 (c) and common-law contract principles

The decisive move in the Court’s reasoning was shifting from “did the insurer accept the statutory offer?” to “did the parties nevertheless form a settlement by other mutually agreeable means?”—explicitly permitted by OCGA § 9-11-67.1 (c).

Using an objective theory of intent and course-of-conduct principles (citing Netsoft Assocs. v. Flairsoft, Ltd. and Turner v. Williamson), the Court found mutual assent because:

  • Cravens’s counsel raised typographical issues in the demand but did not object to the insurer’s release terms or check form in the contemporaneous communications.
  • The insurer provided insured contact information and implicitly allowed statements—conduct the Court viewed as consistent with a settlement posture.
  • Most importantly, Cravens’s counsel used the insurer’s liability-limit tendered materials (check and release) when pursuing UM settlement with the same carrier, representing that the at-fault carrier had “offered to pay their limits ... in exchange for a limited release.”

The UM exhaustion cases—Thompson v. Allstate Ins. Co., Carter v. Progressive Mountain Ins., and Daniels v. Johnson—provided the logical bridge: because exhaustion of liability limits is a condition precedent to UM recovery, presenting the liability-limits tender in the UM context objectively conveys that liability limits are being exhausted through settlement. From the insurer’s viewpoint (especially as it served as both liability and UM carrier), Cravens’s actions manifested assent to the counteroffer.

(c) Scope: the settlement included Janet Davis-West

Having found acceptance of the counteroffer, the Court treated the counteroffer’s written release as controlling. The insurer’s counteroffer release expressly named Janet alongside Slaughter and Thomas, and also contained language extending to “any other possible joint tortfeasor or joint obligor.” Under Avery v. Grubb, the Court enforced the plain language and held the settlement covered Janet as well.

3.3. Impact

  • Conduct can bind parties to a counteroffer settlement: Even where a statutory demand is not accepted due to nonconformity, litigants may create an enforceable settlement through subsequent conduct consistent with assent—particularly conduct that leverages the tender to satisfy external legal prerequisites (here, UM exhaustion).
  • UM negotiations can have settlement-formation consequences: Using liability tender documents to pursue UM benefits may be treated as an objective manifestation that liability limits are settled/exhausted, undermining later arguments that “no meeting of the minds” existed.
  • Additional insureds added in a counteroffer release may be swept in: If the counteroffer’s release names more releasees (e.g., another insured like Janet), and the claimant accepts by conduct, the claimant may be held to have released claims against those additional parties.
  • Practice pointer: A claimant who wishes to reject or negotiate release language must do so promptly and clearly, and should avoid using tendered settlement instruments in ways that objectively represent settlement/exhaustion.

4. Complex Concepts Simplified

  • “Meeting of the minds”: Mutual agreement on the same deal terms. Courts usually measure this objectively—what the parties’ words and actions would mean to a reasonable person.
  • “Counteroffer”: A response that changes the offer’s terms (e.g., adds an indemnity clause or an extra person to be released). It rejects the original offer and proposes a new deal.
  • OCGA § 9-11-67.1 (2013): A statute governing pre-suit motor-vehicle injury settlement demands; it lists required “material terms” and permits acceptance only of those terms “in their entirety,” but also allows settlements “otherwise agreeable” under subsection (c).
  • UM “exhaustion” as a “condition precedent”: A legal prerequisite: before collecting UM benefits, the claimant generally must exhaust available liability coverage (often via settlement for policy limits and an appropriate limited release).
  • “Release”: A contract in which the claimant gives up (releases) claims against specified parties. If unambiguous, courts enforce its plain meaning.
  • “Moot” cross-appeal: Once the appellate court’s main ruling resolves the dispute so the cross-appeal can no longer affect the parties’ rights, the cross-appeal is dismissed as moot.

5. Conclusion

The Court of Appeals’ central holding is that, even when an insurer’s tender does not strictly accept a claimant’s OCGA § 9-11-67.1 offer (because the tender varies material terms), the insurer’s tender may operate as a counteroffer that the claimant can accept through objective manifestations of assent—especially by using the tender to satisfy UM exhaustion requirements. Once accepted, the counteroffer’s release language governs scope, potentially releasing additional insureds named in the insurer’s proposed release (here, Janet Davis-West). The decision underscores that settlement formation in Georgia motor-vehicle cases is not confined to formal acceptance language; course-of-conduct and UM-related communications can supply the “mutual assent” necessary to create an enforceable settlement.