October 20, 2021 – Partner Nik Makarenko and Associate Douglas MacKimm prevailed in a Motion to Enforce a Settlement in the State Court of Gwinnett County.
Plaintiff claimed personal injuries arising out of a motor vehicle accident that occurred on December 1, 2018. This lawsuit was filed on December 11, 2019 and Defendant filed his answer to the Complaint on or about January 31, 2020. Plaintiff also served his Uninsured/Underinsured Motorist Carrier with the lawsuit. On April 15, 2021, Plaintiff sent Defendant, via email, a proposed Offer of Settlement, pursuant to O.C.G.A. 9-11-68 in the amount of $250,000, the exact amount of the Defendant’s liability insurance. The offer included language that: Upon payment of the $250,000.00, the above lawsuit will be dismissed with prejudice as to Defendant.”
Mr. Makarenko and Mr. MacKimm accepted Plaintiff’s Offer of Settlement in a timely manner, including all material terms, via correspondence on May 13, 2021. The check was delivered timely to the Plaintiff. Following delivery of the check, Plaintiff’s counsel had his client sign a limited liability release instead of a general release and declined to dismiss the case with prejudice as stated in his Offer of Settlement. Instead he indicated his intent to pursue a settlement with the UM/UIM carrier and only dismiss the case upon resolution of that claim. Mr. Makarenko and Mr. MacKimm moved the Court to Enforce the Settlement averring that Plaintiff issued an offer, and Defendant unequivocally accepted the offer, including all material terms therein. Parties reached a meeting of the minds. Defendant performed his duties under the contract by accepting the Offer within 30 days and promptly tendering payment. Plaintiff acknowledged acceptance and agreement with his receipt and subsequent cashing of the settlement draft. They further alleged that Plaintiff failed to perform his duties under the contract by not dismissing the case with prejudice .
Judge Veronica Cope of the State Court of Gwinnett County County concurred that Plaintiff offered to “finally resolve all claims which have been asserted, or which could have been asserted” against Defendant in this matter and Defendant accepted that Offer. She further Ordered Plaintiff to file a Dismissal With Prejudice within 30 days of her Order in accordance with the terms of the settlement.
The Court’s Order can be viewed here.
The case is Shannon Smith v. Michael Francis
State Court of Gwinnett County, CAFN: 19-C-09175-S6