Debra O'Conner v. Aaron Collier

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Debra O'Conner, as Personal Representative of the Estate
of Sandy Lynn Shook, Appellant,

v.

Aaron Collier, Respondent.

Appellate Case No. 2019-000856

Appeal From Anderson County
R. Lawton McIntosh, Circuit Court Judge

Unpublished Opinion No. 2023-UP-199
Heard May 11, 2021 – Filed May 24, 2023

AFFIRMED

Eric Marc Poulin and Roy T. Willey, IV, both of Poulin,
Willey, Anastopoulo, LLC, of Charleston, for Appellant.

Michael T. Coulter, of Clarkson, Walsh & Coulter, P.A.,
of Greenville, and Michelle N. Endemann, of Clarkson,
Walsh & Coulter, P.A., of Charleston, both for
Respondent.

PER CURIAM: Debra O'Connor, as personal representative of the estate of Sandy
Lynn Shook (Decedent), argues the circuit court erred in granting Aaron Collier's
motion to enforce the settlement in this case. O'Connor contends no binding
settlement agreement existed because Progressive Northern Insurance Company
(Progressive) issued its second of two $25,000 settlement checks after her demand
deadline had expired and hand delivered the checks to an address other than that
listed in the offer of compromise. We affirm the order of the circuit court granting
the motion to enforce the settlement.

Facts and Procedural History

On July 22, 2017, Decedent tragically died following a single-vehicle motorcycle
accident. Collier, who was operating the motorcycle, was charged with felony
driving under the influence accompanied by death. Collier had a vehicular
insurance policy (Policy) through Progressive with a bodily injury coverage limit
of $25,000 and property damage limit of $25,000.

On July 28, 2017, the Anastopoulo Law Firm (Law Firm) notified Progressive that
it represented Decedent's estate and would be making a claim under the Policy. On
April 28, 2018, Progressive offered to settle the claim for $25,000, Collier's per
person bodily injury limit. In a May 25, 2018 email, Law Firm attorney Camden
Hodge responded that Law Firm would send an offer of compromise upon
completion of its case investigation.

On September 26, 2018, Hodge sent Progressive Senior Claims Specialist Jeff
Vicary a nine-page, single-spaced settlement demand letter on behalf of Decedent's
estate. 1 One section of this letter provided:

Please be aware that our demand for policy limits is not
negotiable and that ALL conditions of this offer of
compromise must be met by the specified time limit. If
any condition is not met, or if any additional condition
is imposed by Progressive, including but not limited to
conditions of indemnification or the waiver of any

1
This is one of three cases before this court involving similar lengthy demand
letters sent by this law firm. All three demand letters include swift turnaround
times for compliance with numerous, at times internally inconsistent, demands. In
these three cases, three veteran circuit court judges ruled in favor of the insurance
companies; one on a motion to enforce the settlement and two on motions for
summary judgment in declaratory judgment actions.
rights or claims not specified herein, this offer of
compromise will be withdrawn, and we will obtain an
excess judgment against your insured and enforce it
against Mr. Collier's assets.

Footnote two of eight, in smaller print, required:

Settlement funds must be paid by Cashier's Checks, or
Certified Bank Checks (not drafts) issued by your
insurance company as follows: Debra O'Connor as PR
for the Estate of Sandy Shook and the Anastopoulo Law
Firm, LLC. The checks must be RECEIVED in my
office no later than 5:00 pm EDT on October 12,
2018 . . . . These funds should be mailed to 32 Ann
Street, Charleston, SC 29403.

Prior to the deadline provided in the demand letter, Vicary initiated the process of
retaining counsel to prepare the necessary covenant not to execute and obtain the
requested affidavits from Collier. 2 In an affidavit accompanying Collier's motion
to enforce the settlement, Vicary explained that he issued two separate checks for
$25,000, numbered 210477106 and 210477107, for the bodily injury and property
damage limits of the Policy. Vicary then emailed the paperwork and check
information to Progressive's North Charleston office and asked Richard
Ozegovich, who worked in the North Charleston office, to print and hand deliver
the checks and executed documents to Law Firm.

On October 11, 2018, Ozegovich hand delivered the requested executed documents
to Law Firm's North Charleston office, but inadvertently included only one of the
two $25,000 checks in the packet. Ozegovich, who also provided an affidavit, left
the envelope with an attorney at the firm who signed for the check in Hodge's
absence. Ozegovich's affidavit further explained he printed both $25,000 checks
but accidentally left one of the checks on his printer and thus failed to include it in
the packet.

2
In addition to the Covenant not to Execute, other documents demanded in the
letter included Collier's "Sworn Statement of No Other Insurance," an "Affidavit of
No Other Insurance," and an affidavit addressing Collier's Progressive coverage.
On October 16, 2018, Hodge wrote Progressive another letter on O'Connor's
behalf, returning Progressive's check and stating "your draft for $25,000 is clearly
a rejection and counter offer. We are also troubled that your proposed CNTE- [sic]
purports to release my client's claim for both BI and PD, even though your office
only tendered payment for one of the claims." Upon learning of his mistake,
Ozegovich hand delivered the second check on October 17, 2018, one day after
Hodge wrote to notify him of the missing check and five days after the deadline set
forth in the September 26 demand letter. Ozegovich left the check with Law
Firm's receptionist after another attorney at the firm refused to sign for it.

The same day Progressive delivered the second $25,000 check, Law Firm filed a
summons and complaint initiating a lawsuit on behalf of Decedent's estate. Collier
then filed a motion to enforce the settlement, which Law Firm—purportedly on
O'Connor's behalf—opposed. At the hearing on the motion, O'Connor argued that
because Progressive delivered only one $25,000 check with the settlement
documents to the wrong address, no enforceable settlement existed. The circuit
court disagreed and granted Collier's motion to enforce the settlement, finding
Progressive's response to the demand letter was "not a rejection and counteroffer of
the arbitrary conditions placed in the plaintiff's "Offer to Compromise," and was
instead an inadvertent mistake by an agent of the insurance carrier in regards to
arbitrary deadlines set [forth] by the plaintiff's attorney."

Following another hearing, the circuit court denied O'Connor's motion to
reconsider by Form 4 order.

Standard of Review

"In South Carolina jurisprudence, settlement agreements are viewed as contracts."
Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 241, 672 S.E.2d 799, 802 (Ct. App.
2009). "An action to construe a contract is an action at law." Byrd v. Livingston,
398 S.C. 237, 241, 727 S.E.2d 620, 622 (Ct. App. 2012). In an action at law, the
circuit court's factual findings will not be disturbed unless they lack evidentiary
support; however, "this court is free to decide questions of law with no particular
deference to the trial court." Id.

Law and Analysis

O'Connor argues the circuit court erred in granting the motion to enforce the
settlement because no enforceable contract existed after Progressive failed to
deliver both $25,000 checks within the demand letter's deadline and delivered both
checks to the wrong address.

"The necessary elements of a contract are an offer, acceptance, and valuable
consideration. A valid offer 'identifies the bargained for exchange and creates a
power of acceptance in the offeree.'" S. Glass & Plastics Co. v. Kemper, 399 S.C.
483, 491, 732 S.E.2d 205, 209 (Ct. App. 2012) (quoting Sauner v. Pub. Serv. Auth.
of S.C., 354 S.C. 397, 406, 581 S.E.2d 161, 166 (2003)). "South Carolina common
law requires that, in order to have a valid and enforceable contract, there must be a
meeting of the minds between the parties with regard to all essential and material
terms of the agreement." Player v. Chandler, 299 S.C. 101, 105, 382 S.E.2d 891,
893 (1989) (emphasis in original).

"To discover the intention of a contract, the court must first look to its language—
if the language is perfectly plain and capable of legal construction, it alone
determines the document's force and effect." Ecclesiastes Prod. Ministries v.
Outparcel Assocs., LLC, 374 S.C. 483, 498, 649 S.E.2d 494, 501 (Ct. App. 2007).
"The parties' intention must be gathered from the contents of the entire agreement
and not from any particular clause thereof." Id. at 498, 649 S.E.2d at 502.

It has long been the policy of the court to encourage
settlement in lieu of litigation, and courts have usually
enforced settlement agreements. There can be no doubt
but that the trial court retains inherent jurisdiction and
power to enforce agreements entered into in settlement of
litigation before that court.

Kinghorn as Tr. for the Mildred Ann Kinghorn Tr. dated 28 Apr. 2004 v. Sakakini,
426 S.C. 147, 152, 825 S.E.2d 748, 750 (Ct. App. 2019) (quoting Rock Smith
Chevrolet, Inc. v. Smith, 309 S.C. 91, 93, 419 S.E.2d 841, 842 (Ct. App. 1992)).

We find the circuit court properly granted Collier's motion to enforce the
settlement because Progressive's failure to deliver the second $25,000 check within
the deadline was a good-faith mistake, not a rejection or counteroffer. Vicary's
conduct in attempting to comply with the demand letter's essential terms before the
settlement deadline evidenced Progressive's assent to the essential and material
terms of O'Connor's offer of compromise. Progressive prepared a covenant not to
execute—listing $50,000 as the settlement amount—and the other documents Law
Firm demanded prior to the October 12 deadline. On October 11, Ozegovich hand
delivered one $25,000 check and the accompanying requested documents to the
law firm, but Law Firm did not notify Progressive of its mistake in failing to
include the second $25,000 check with the settlement packet until October 16,
2018—four days after the deadline in Hodge's demand letter had passed. 3 We are
troubled that Law Firm did not seek to remedy Progressive's mistake during the
deadline for delivery set forth in the demand letter in light of the $50,000 figure
clearly noted in the covenant not to execute.

We further find that given the sixteen-day period in which Law Firm demanded
acceptance with the letter's numerous demands, the mailing address provided in the
demand letter was not a material term of the offer of compromise. The demand
letter stated, "The checks must be RECEIVED in my office no later than 5:00 pm
EDT on October 12, 2018 . . . . These funds should be mailed to 32 Ann Street,
Charleston, SC 29403." Rather than snail mailing the response packet to Law
Firm's downtown mailing address, Progressive hand delivered the documents and
funds to Law Firm's physical address in North Charleston. As the mailing address
was not a material term of the demand letter, we agree with the circuit court that
O'Connor's argument challenging the hand delivery of the settlement packet to
Law Firm's physical address is without merit. 4

Conclusion

Based on the foregoing, the circuit court's order granting the motion to enforce the
settlement is

AFFIRMED.

KONDUROS and MCDONALD, JJ., and LOCKEMY, A.J., concur.

3
The fact that the two $25,000 settlement checks were numbered sequentially, for
the Policy's respective bodily injury and property damage limits, further supports
the circuit court's finding that Progressive's failure to deliver both checks on
October 11 was an inadvertent mistake and not a rejection or counteroffer.
4
As the circuit court did not rule on the question of an accord and satisfaction in
the Order Granting Defendant's Motion to Enforce Settlement, we decline to
address this argument as an additional sustaining ground on which to affirm.