Allstate Property v. Natoshia Hamilton

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

Allstate Property and Casualty Insurance Company,
Respondent,

v.

Natoshia Hamilton and Kenneth Collins Coogler,
Defendants,

Of Whom Natoshia Hamilton is the Appellant.

Appellate Case No. 2018-001675

Appeal From Florence County
Michael G. Nettles, Circuit Court Judge

Unpublished Opinion No. 2023-UP-200
Submitted May 3, 2021 – Filed May 24, 2023

AFFIRMED

Eric Marc Poulin, Roy T. Willey, and Angeline M.
Larrivee, all of Poulin, Willey, Anastopoulo, LLC, of
Charleston, for Appellant.

Alfred Johnston Cox, of Gallivan, White & Boyd, PA, of
Columbia, for Respondent.
PER CURIAM: In this declaratory judgment action, Natoshia Hamilton argues
the circuit court erred in granting summary judgment to Allstate Property and
Casualty Insurance Company (Allstate) because Allstate failed to accept the terms
of her offer of compromise by issuing a manual check instead of a certified check
in response to her settlement demand. Based on this alone, Hamilton asserts no
enforceable settlement agreement exists. We disagree, and we affirm the order of
the circuit court. 1

Facts and Procedural History

Hamilton sustained injuries in an automobile accident when Kenneth Coogler
rear-ended her car. Coogler was driving his wife's vehicle, which was insured
through an Allstate automobile policy (the Policy). On February 5, 2015, the
Anastopoulo Law Firm (Law Firm) notified Allstate that it had been retained to
represent Hamilton.

On January 15, 2016, Law Firm attorney Evan Williams sent Allstate adjuster
Marsa King a ten-page, single-spaced settlement demand letter (with additional
exhibits attached) seeking payment of the Policy's bodily injury coverage limits
and execution of a release and specified affidavits. One section of this "time-
limited demand for payment of policy limits" 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 Allstate Insurance Company, including
but not limited to conditions of indemnification or the
waiver of any 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offer of compromise will be withdrawn, and we will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 assets.

1
We decide this case without oral argument pursuant to Rule 215, SCACR. 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
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.
In footnote one of the ten-page demand letter, Law Firm required the settlement
funds "be paid by Cashier's Checks or Certified Bank Checks (not drafts) issued by
[the] insurance company as follows: Natoshia Hamilton and the Anastopoulo Law
Firm, LLC." Regarding payment, the letter further demanded:

Payment must be made as described herein, and payment
by any other method, including payment through the
registry of any court or through the filing of an
interpleader action, will not satisfy the terms of this offer
of compromise and will result in the immediate and
automatic withdrawal of this offer of compromise.

The offer required acceptance by "performance of the requirements of this letter
. . .". 2

On January 20, 2016, Law Firm faxed Allstate an additional radiology bill to be
included with Hamilton's demand package. Allstate's records indicate it received
Hamilton's demand package on January 21, 2016; the deadline for compliance
required that Allstate's completed settlement packet be received "no later than 5:00
p.m. on January 26, 2016."

On January 26, Allstate hand-delivered Law Firm a check for $25,000, a covenant
not to execute, and the completed affidavits. Attorney Williams signed for and
accepted the check and accompanying documents; however, on March 23, 2016,
Eric Poulin, another Law Firm attorney, returned the check with a letter noting,
"Allstate failed to accept this offer of compromise." Other than advising, "Please
do not try to trick us by sending us a check for this amount again," the letter
provided no explanation for Hamilton's rejection of Allstate's acceptance of her
settlement demand.

2
Other documents required for acceptance of the offer included "sworn and
notarized statements that there is no other insurance coverage available to her that
could pertain to this loss" and a release. With respect to the release, the demand
letter stated, "Instead of acting in bad faith and trying to trick us, please just send a
reasonable Release that does not include indemnification or the release of the
property damage claims."
In letters dated April 13, April 19, and May 11, 2016, Allstate confirmed its offer
of $25,000 to settle Hamilton's claims. On February 6, 2017, Allstate filed a
declaratory judgment action seeking to enforce the settlement.

Hamilton timely answered and subsequently moved for summary judgment,
arguing no enforceable settlement agreement existed because Allstate failed to
comply with the terms of her offer of compromise when it tendered a manual
check for the Policy's bodily injury limits. Allstate filed its own motion for
summary judgment, noting it accepted Hamilton's offer of compromise by
hand-delivering the $25,000 check and her requested release and coverage
documents to Law Firm within the time demanded.

Following a hearing, the circuit court granted Allstate's motion for summary
judgment, finding as a matter of law that "Allstate's acceptance and performance of
the material terms of the demand constitute a valid acceptance." Hamilton filed a
timely motion to reconsider, which the circuit court denied.

Standard of Review

"In reviewing a motion for summary judgment, the appellate court applies the same
standard of review as the trial court under Rule 56(c), SCRCP." Companion Prop.
& Cas. Ins. Co. v. Airborne Exp., Inc., 369 S.C. 388, 390, 631 S.E.2d 915, 916 (Ct.
App. 2006). "Summary judgment should be affirmed if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law."
Id. "When a circuit court grants summary judgment on a question of law, [an
appellate court] will review the ruling de novo." Wright v. PRG Real Estate
Mgmt., Inc., 426 S.C. 202, 212, 826 S.E.2d 285, 290 (2019).

Law and Analysis

Hamilton argues the circuit court erred in granting Allstate's motion for summary
judgment because Allstate failed to comply with the terms of her offer of
compromise when it tendered a manual check instead of a certified check.
Hamilton contends the form of check was a material term of her demand and
Allstate rejected her offer—and presented a counter offer—when it tendered the
manual check for the Policy's bodily injury limits. We disagree.

"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). "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)).

Here, the language in the demand letter requiring payment by certified check is
anything but "perfectly plain." See Ecclesiastes Prod. Ministries, 374 S.C. at 498,
649 S.E.2d at 501. The footnote required, "Settlement funds must be paid by
Cashier's Checks or Certified Bank Checks (not drafts) issued by your insurance
company." But, neither a cashier's check nor a certified bank check is "issued by the
insurance company"—a bank representative must co-sign a certified check, and the bank
itself issues a cashier's check. See Emily Guy Birken, Personal Check vs. Certified
Check vs. Cashier's Check, Forbes Advisor (August 30, 2020),
https://www.forbes.com/advisor/banking/personal-check-vs-certified-check-vs-
cashiers-check/ (last visited May 2, 2023) ("The difference between [a certified check
and a cashier's check] is that a cashier's check draws on the bank's funds, rather than an
individual account holder's funds."). Thus, as the demand letter itself made the required
form of payment unclear, it is difficult to understand Law Firm's argument that the form
of the admittedly negotiable check was an essential or material term of the settlement
demand.3

In addition to the conflicting language within Law Firm's demand letter,
Hamilton's own deposition testimony demonstrates the form of the check was not
an essential or material term of her settlement demand. The only reason Hamilton
could give as a basis for the rejection of Allstate's settlement check for the Policy
limits and accompanying documentation was that the check "didn't meet our
demand and that's all I would like to say." She conceded the letter demanded
$25,000, Allstate issued a check for $25,000, and she had no reason to be
concerned that she might have problems cashing or depositing the check. 4 Neither

3
When asked about this during the oral argument of one of the other cases, Allstate
v. Goodwin, Appellate Case No. 2018-001108, Hamilton's counsel repeatedly
asserted "the reasonableness of this is not at issue" and "this is not about common
sense" because the "mirror-image rule" operates to compel a ruling in Hamilton's
favor under contract law. As the late Justice Bell aptly noted in Weisz Graphics
Division of Fred B. Johnson Co., Inc. v. Peck Industries, Inc., 304 S.C. 101, 106,
403 S.E.2d 146, 149 (Ct. App. 1991), the 'so-called “mirror-image' rule[ ] is well
suited to simple, one time transactions, in which the parties contract face to face.
However, it fails to accommodate the realities of much modern commercial
practice." Nor does section 36-2-207 (2003) of the South Carolina Code, found
within the "Sales" Chapter of our Uniform Commercial Code, operate to vitiate
Allstate's compliance with the material (and nonconflicting) terms of the demand
letter.
4
In any event, her own settlement check would routinely issue from her own law
firm's trust account. Rule 1.15 of the South Carolina Rules of Professional
Conduct further supports the circuit court's finding that the form of the check was
immaterial here because the rule permits an attorney to disburse trust account
funds when the amount of the check is under $50,000 and is funded by an
insurance company. See Rule 1.15(f)(1), RPC, Rule 407, SCACR ("A lawyer shall
not disburse funds from an account containing the funds of more than one client or
third person ('trust account') unless the funds to be disbursed have been deposited
in the account and are collected funds."); Rule 1.5(f)(2)(iv), RPC, Rule 407,
SCACR ("Notwithstanding Subsection (f)(1) above, a lawyer may disburse funds
from a trust account at the lawyer's risk in reliance on the following deposits when
the deposit is made . . . by a certified check, cashier's check, or other check drawn
Hamilton nor her attorneys could articulate an appropriate logical reason
supporting the argument that the form of the check was essential or material to the
parties' contract. 5

We agree with the circuit court that Allstate complied with the essential and
material terms of Hamilton's offer in seeking to pay the Policy limits to settle this
case. As the circuit court explained, "[b]ecause Allstate complied with the terms of
the demand, Hamilton was obligated to sign the Covenant not to Execute and
resolve her claims for bodily injury." Thus, the circuit court did not err in granting
Allstate's motion for summary judgment.

Conclusion

Based on the foregoing, the circuit court's order granting summary judgment is

AFFIRMED.

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

by a depository institution or an insurance company, provided the insurance
company check does not exceed $50,000 . . . .").
5
The circuit court recognized that the actions here were "an attempt to get bad
faith refusal to pay and Tyger River in trying to get excess coverage. I think that's
clearly what this is all about, and I think that they did comply with the demand
letter in all material ways." See Tyger River Pine Co. v. Maryland Cas. Co., 170
S.C. 286, 170 S.E. 346 (1933). The trial judge further commented—and we
agree—"[t]here is in the insurance industry bad faith, but this isn't it."