COURT OF APPEALS

DECISION

DATED AND FILED

July 13, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP407 Cir. Ct. No. 2018CV170

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

JOHNATHON WILL,

 PLAINTIFF-APPELLANT,

 V.

CHRISTOPHER SCHLOSSER AND PROGRESSIVE UNIVERSAL INSURANCE 

COMPANY,

 DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Polk County: 

DANIEL J. TOLAN, Judge. Reversed and cause remanded for further 

proceedings. 

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Johnathon Will appeals a summary judgment granted in 

favor of Christopher Schlosser and his automobile liability insurer, Progressive 

Universal Insurance Company (hereinafter “Progressive”), which dismissed Will’s 
No. 2020AP407

2

personal injury claim. Will cashed a $950 settlement check from Progressive sent 

with an attached document denominated “ADVICE FOR PAYMENT,” which 

read, “Full and Final Settlement of all Bodily Injury Claims with Open Meds.”

The circuit court concluded that Will’s cashing of the check constituted an accord 

and satisfaction between the parties, thereby limiting the defendants’ further 

liability and warranting summary judgment in their favor. 

¶2 On appeal, Will argues the circuit court erred in granting summary 

judgment because there were genuine issues of material fact as to whether Will 

had reasonable notice that the check he cashed was offered in full and final 

satisfaction of his claim.1 We agree and conclude that there are material issues of 

fact as to whether Will received such reasonable notice, thereby precluding

summary judgment. We therefore reverse the judgment and remand this matter 

for further proceedings. 

BACKGROUND

¶3 On November 3, 2016, Will was traveling on County Road F,

approaching the intersection with County Road C, when his vehicle struck a 

vehicle driven by Schlosser. Schlosser failed to yield the right of way from a stop 

sign at the intersection of the two roads, allegedly causing the collision. 

¶4 Will commenced suit against Schlosser and Progressive, alleging 

negligence and seeking damages for his injuries arising from the accident. 

 

1

 In addition, Will argues that “public policy should not allow insurers to forcefully settle 

bodily injury claims without the signing of a clear and concise release of claims.” Will provides 

no citation to legal authority for this proposition. Because we decide this case on other grounds, 

we need not reach this argument. See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 

(1997) (appellate courts not required to address every issue raised when one issue is dispositive). 
No. 2020AP407

3

Progressive answered on behalf of both defendants, and it asserted that Will’s 

claim was barred by the doctrine of accord and satisfaction. Progressive 

ultimately moved for summary judgment, claiming Will’s action was barred by the 

doctrine of accord and satisfaction. 

¶5 On November 15, 2016, some twelve days after the accident, a 

representative from Progressive named Rachel Thompson spoke by telephone with 

Will in a recorded conversation.2 Thompson called Will to discuss the accident, 

Will’s injuries sustained in the crash, potential future treatment, and his special 

damages. The following facts are taken from a transcript of that telephone 

conversation submitted by Progressive via affidavit, which Will acknowledged 

was accurate. 

¶6 In that conversation, Will informed Thompson that as a result of his 

injuries, he had missed twenty hours of work, over two days, at $16.50 per hour. 

Thompson calculated that Will had lost income in the amount of $330 as a result 

of the accident. Will also informed Thompson that he had out-of-pocket expenses 

of twenty dollars for prescriptions. Will’s mother had taken him to the emergency 

room after the accident, and Progressive agreed to pay for the cost of that visit, 

which included an ultrasound of Will’s heart and stomach. Will also stated that 

his stomach and lower back were sore from the accident. At the time of the 

accident, Will estimated his pain level to be a three out of ten, on a scale of one to 

ten, with ten being the highest. 

 

2

 The computerized transcript of the telephone conversation incorrectly identified the 

Progressive representative as “Ms. Fox.” Rachel Thompson provided an affidavit, however, 

indicating that she was the representative who spoke to Will and that the transcript incorrectly 

identified her as “Rachel Fox [sounds like].” 
No. 2020AP407

4

¶7 At the time of his phone call with Thompson, Will stated he felt a bit 

better and that his pain was getting better day by day. Will stated that he had quite 

a bit of bruising, particularly on his stomach, that it hurt to bend over at work, and 

that he was stiff when he would wake up in the morning. Will had been asked to 

follow up with his primary care doctor, but he felt that he did not need to do so. 

Will did, however, tell Thompson that he planned to see a chiropractor. 

¶8 After discussing the accident, the nature of Will’s injuries, the past 

damages, and potential future chiropractic treatment, and due to Will’s statement 

that he was “almost 100 percent,” Thompson offered Will a settlement. 

Thompson summarized the damages that Will discussed with her, and she 

proposed an offer that Will agreed accurately reflected the damages: 

[Thompson]: OK. OK. So, um, that’s all the questions I 

have to ask in relation to the injuries. Um, of course here, 

um, Johnathon, you would be entitled to, you know, the 

bodily injury claim which does cover, um, you know, pain, 

inconvenience, um, missed wages, um, and medical bills in 

relation to the accident. Um, so right now, based off of 

here, uh, what you’re telling me the injuries that you 

sustained, um, I can offer you $600 for the pain and 

inconvenience. In addition to that, um, you know, we 

would cover your wages, uh, that you missed out on for the 

days, um, of work, which would be $330. And then I 

would reimburse you for, uh, your out-of-pocket, uh, 

prescription costs of $20.

[Will]: OK. 

[Thompson]: And then, of course, take care of, um, the 

medical bill, uh, that you had for the ER visit. Um, your 

medical bills incurred, I should say, that you’ve in-, 

incurred thus far. Um, and then you said, um, you haven’t 

scheduled a follow-up visit? Um ...

[Will]: Uh-uh. 

[Thompson]: ... you know, so, if you’re anticipating that, 

um, you said you also, uh, potentially may go see a 

chiropractor, um, I can keep, um, the medical open for an 

additional 30 days for up to $1,000. So, if you do go back 
No. 2020AP407

5

in for that follow up, um, or go to see, you know, the 

chiropractor, we’d be able to take care that for you, um, and 

that would be, you know, open for 30 days from the date, 

um, that the agreement is, is binded [sic].

¶9 After Thompson and Will discussed these valuations and 

summarized the terms of the agreement, Will said to Thompson that the payment 

amount would be fair and “should be all right.” Will then stated that the $1,000 

for thirty days of future chiropractic would be all that he needs: 

[Thompson]: OK. ‘Cuz total, what it would be, I know I 

just threw a lot of numbers at you. I apologize [laughs]. 

Um, it would be total with, um, your pain, inconvenience, 

plus your wages and the out-of-pocket prescription, that’d 

be $950. And of course, again, we would take care of the, 

your medical bills incurred thus far in relation to the 

accident, and then ... 

[Will]: So, then the emergency ...

[Thompson]: ... um ...

[Will]: ... room will be covered?

[Thompson]: Yes. Yep, that will be covered. Um, and 

then your concern for, you know, future follow up or 

treatment at the chiro, I can keep that open for 30 days up 

to $1,000.

[Will]: OK. Yeah, that should ...

[Thompson]: O-...

[Will]: ...be all right. 

[Thompson]: OK. 

[Will]: I would like to see the chiropractor, and I don’t 

think that’s ...

[Thompson]: Sure.

[Will]: ... gonna rack up bad [sounds like] ... 

[Thompson]: Yeah, and ... 

[Will]: ... so.
No. 2020AP407

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[Thompson]: ... typically, um, you know, the visits do 

range, if you do, um, go to, um, seek treatment, um, they’re 

usually anywhere, depending on the area that you live in, 

I’d say $45 to $75. So, you know, that would, um, get you 

visits. You know, 30 days at ... 

[Will]: OK. 

¶10 Thompson and Will then discussed the process for concluding the 

agreement:

[Thompson]: OK. So, what I have to do then, Johnathon, 

is, um, I have to send you out what’s called a release. It’s 

an official document, um, that basically outlines the details 

of our agreement. However, um, we would need that 

signed and on file before we’re able to pay any medical 

bills on your behalf. 

[Will]: OK. 

[Thompson]: Um, and I’ll send that out in the mail, um, 

along with the check ....

[Thompson]: ... But I will get this out in the mail right 

away and I’ll look to follow up with you tomorrow

regarding the vehicle, um, you know, to go over that, which 

is, you know, separate from, um, this injury claim. Um 

other than that, um, I don’t have anything else for you right 

now. Do you have any questions for me?

Will did not have any further questions, and Thompson thereafter provided her 

contact information should Will need to reach her. 

¶11 The next day, Thompson sent Will a letter stating, in part: “As we 

discussed on November 15, 2016, you have agreed to settle your injury claim for 

$950.00.” Thompson claims that enclosed with the letter was a check for $950, a 

document entitled ADVICE FOR PAYMENT with language stating, “Full and 

Final Settlement of all Bodily Injury Claims with Open Meds,” and two copies of 

a release agreement. Will confirmed that he previously lived at the address where 
No. 2020AP407

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the check was sent, but he had his mail forwarded to a new address after he 

moved. 

¶12 Will also confirmed that the check “may have” had a letter attached 

to it, but he did not recall what that letter said and he was not sure if he kept it. 

Will stated, however, that no release was sent to him and that he did not sign or 

return any release to Progressive. In addition, and significantly, the record does 

not contain a copy of the purported release, either signed or unsigned. 

¶13 Prior to the motor vehicle accident, Will had a surgery related to a 

hernia. On December 4, 2016, Will saw his family physician and stated that he 

was concerned that his hernia was coming back. The physician’s note from that 

visit stated, in part: “[T]his is a time[-]sensitive issue[.] His insurance case will 

be closuring [sic], so he ... does need this acted on quickly[.]” Progressive 

contends that this statement referenced Will’s agreement with Thompson. Will, 

however, asserts that this statement was related to his health insurance coverage,

which was expiring at the end of the year. 

¶14 Based upon the phone conversation between Will and Thompson,

Thompson’s letter accompanying the check payable to Will, and Will’s cashing 

the check, the circuit court concluded Progressive had made a prima facie case for 

summary judgment by showing that all the elements of accord and satisfaction 

were met. The court determined that Will’s submissions did not establish a 

genuine issue of material fact as to accord and satisfaction, and it therefore granted 

Progressive’s motion for summary judgment. Will now appeals. 
No. 2020AP407

8

DISCUSSION

¶15 We review a grant of summary judgment de novo. Duncan v. Asset 

Recovery Specialists, Inc., 2020 WI App 54, ¶9, 393 Wis. 2d 814, 948 N.W.2d 

419. Summary judgment is appropriate if there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law. 

WIS. STAT. § 802.08(2) (2019-20). “To make a prima facie case for summary 

judgment, a moving defendant must show a defense which would defeat the 

[opposing party’s] claim.” Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 

334 N.W.2d 580 (Ct. App. 1983). If such a showing has been made, we examine 

the evidentiary materials submitted by the opposing party to determine whether a 

genuine issue exists as to any material fact. Id. “In evaluating the evidence, we 

draw all reasonable inferences from the evidence in the light most favorable to the 

non-moving party.” Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, 

¶40, 294 Wis. 2d 274, 717 N.W.2d 781. 

¶16 The issue for our review is whether the facts located in the summary 

judgment record, viewed most favorably to Will, demonstrate that his claim is

barred by the common law doctrine of accord and satisfaction. “An ‘accord and 

satisfaction’ is an agreement to discharge an existing disputed claim and 

constitutes a defense to an action to enforce a claim,” “whether the claim be one 

arising in contract, tort, or otherwise.” Hoffman v. Ralston Purina Co., 86 

Wis. 2d 445, 453, 273 N.W.2d 214 (1979); see also Butler v. Kocisko, 166 

Wis. 2d 212, 215, 479 N.W.2d 208 (Ct. App. 1991). “Ordinary contract principles 

apply in determining whether an agreement of ‘accord and satisfaction’ is 

reached.” Hoffman, 86 Wis. 2d at 453 (citation omitted). “Mere performance 

does not operate as a satisfaction unless offered as such to the creditor or claimant. 

There must be expressions sufficient to make the creditor understand or to make it 
No. 2020AP407

9

unreasonable for [the creditor] not to understand that the performance is offered in 

full satisfaction of the claim.” Id. Our supreme court has explained how this 

doctrine applies when a debtor gives a settlement check to a creditor: 

Under the common law rule of accord and satisfaction, if a 

check offered by the debtor as full payment for a disputed 

claim is cashed by the creditor, the creditor is deemed to 

have accepted the debtor’s conditional offer of full payment 

notwithstanding any reservations by the creditor. In other 

words, the creditor’s cashing the full payment check 

constitutes an accord and satisfaction which discharges the 

entire debt.

Flambeau Prods. Corp. v. Honeywell Info. Sys., Inc., 116 Wis. 2d 95, 101, 341 

N.W.2d 655 (1984). 

¶17 There are two elements that must first be present for a valid accord 

and satisfaction: (1) “there must be a good faith dispute about the debt”; and 

(2) “the creditor must have reasonable notice that the check is intended to be in 

full satisfaction of the debt.” Id. at 111. An accord and satisfaction requires a 

“bona fide dispute as to the total amount owing, an offer, an acceptance and 

consideration.” Butler, 166 Wis. 2d at 215. 

I. Whether the circuit court relied upon the Uniform Commercial Code

¶18 The circuit court ordered that Will’s claims be dismissed on 

summary judgment based upon the common law doctrine of accord and 

satisfaction. Nonetheless, Will contends that the circuit court relied upon the 

Uniform Commercial Code (UCC) in support of its conclusion that the doctrine of 

accord and satisfaction applies in this case. He argues that the court erred in doing 

so as the UCC is inapplicable to this tort action. 
No. 2020AP407

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¶19 Progressive, however, correctly argues that the circuit court did not 

rely upon any UCC provisions in determining that Will’s claim was barred by 

common law accord and satisfaction. The Hoffman and Flambeau Products

cases provide that the doctrine of accord and satisfaction is applicable under 

common law, and it applies to tort claims. See Hoffman, 86 Wis. 2d at 453; see 

also Flambeau Prods., 116 Wis. 2d at 101. While contract principles are applied 

to an agreement to settle, this fact does not require the application of the UCC. 

Will’s assertion that the court erred by applying the UCC therefore lacks merit. 

II. Whether material questions of fact preclude summary judgment

¶20 Will next argues that there were material questions of fact 

preventing summary judgment on the application of common law accord and 

satisfaction.

3

 Resolution of this issue turns on whether there was a valid offer to 

settle. Specifically, here, we must consider whether the second element of an 

accord and satisfaction was met—i.e., did Will have “reasonable notice that the 

check [was] intended to be in full satisfaction of the debt.” See Flambeau Prods., 

116 Wis. 2d at 111. Will contends that there are material questions of fact 

whether he received any documents from Progressive with the check, and,

specifically, whether he received the release. He further asserts that based on

Thompson’s statements during her phone call with Will, in this particular case, the 

parties understood that the execution of a release was a necessary condition to 

resolving Will’s claim.

 

3

 The Wisconsin Association for Justice filed an amicus brief in support of Will’s 

position. 
No. 2020AP407

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¶21 We agree with Will that the circuit court erred in granting the 

defendants summary judgment on this record. Both parties agree that part of the 

agreement reached pursuant to Will’s phone conversation with Thompson was that 

she would send a release outlining the parties’ agreement, and that this release 

needed to be signed in order for further medical payments to be made. There is a 

genuine issue of fact, however, as to whether Will ever received a release. 

According to Will’s testimony, no release was ever provided to him, nor did he 

sign or return any release, and no copy of the release is in the record. The signing 

of the release was an express condition of the settlement. There is no question of 

fact that this signing did not take place. As the release was apparently meant to 

affirm the agreement between the parties, the absence of a sent or signed release 

creates a material issue of fact as to what the parties intended Will’s acceptance 

and deposit of the $950 check to settle all of Will’s claims. 

¶22 Indeed, Will argues that there are material questions of fact as to 

whether Will understood—or should have understood from his conversation with 

Thompson—that the subsequent cashing of the $950 check acted as a termination 

of his entire bodily injury claim. Will argues that based on his discussion with 

Thompson, he reasonably understood that he was settling only his claim to the 

date of the phone conference, and he did not understand that he was barred from 

ever making any future claim related to his injuries. According to Will, that

reasonable understanding created a material question of fact as to whether he 

understood that the check was offered in full satisfaction of his claim, and that it 

manifested a clear intent in that regard. 

¶23 In response, Progressive correctly notes that an offer and acceptance 

can occur even if there is no “meeting of the minds.” See Hoffman, 86 Wis. 2d at 

454 (citation omitted). Manifestation of intent to accept an offer can occur 
No. 2020AP407

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through the offeree’s words, or by the offeree’s actions. See id. “[W]hen a party 

accepts, without objection, a check which he [or she] knows to be offered in full 

settlement of a disputed account, he [or she] is estopped from claiming in the 

future that the account has not been settled. The acceptance of the check 

constitutes a good accord and satisfaction.” Chicago & N.W. Transp. Co. v. 

Thoreson Food Prods., Inc., 71 Wis. 2d 143, 146, 238 N.W.2d 69 (1976). The 

problem with Progressive’s argument here, however, is that material questions of 

fact remain as to whether the deposit of the check clearly expressed an intent to

settle in full satisfaction of the entirety of Will’s claim, including his damages for 

future pain and suffering from bodily injury, and whether Will’s cashing of the 

check constituted an acceptance of that offer. 

¶24 Nothing in the conversation between Will and Thompson 

conclusively established that the amount agreed upon was intended to fully and 

finally settle all aspects of Will’s claim for relief regarding his bodily injury, 

whether already existing or in the future. In fact, Thompson never used the word 

“settle” during her conversation with Will. Additionally, Thompson’s discussion 

with Will regarding the release indicated that the release would outline the details 

of the agreement and that it was to be signed in order for Will to have Progressive 

pay any medical bills, not to settle his bodily injury claim. Furthermore, there is 

little evidence a release was ever received, much less signed. We do not know 

what the release said, and without it, there remains a genuine dispute as to whether 

the offer as made can be considered as accepted under the doctrine of accord and 

satisfaction. Without the release, we do not agree with Progressive and the circuit 

court that there is no material question of fact that Will’s cashing the check 

establishes that there was reasonable notice to Will that he was accepting the $950 

in full and final settlement of his negligence claim. 
No. 2020AP407

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¶25 Will also argues that there was a material question of fact as to the 

basis for his statement to his doctor in December that he needed his hernia injury 

“acted on quickly.” Will claims the circuit court could not rely upon that 

statement as evidence that he understood his agreement with Progressive was final 

and that he only had thirty days to obtain medical treatment. Instead, Will argues 

that there was a question of fact as to whether he was instead referencing a time 

limit due to his expiring health insurance. The court did not, however, state that it 

relied on Will’s statement to his physician in support of its summary judgment 

decision. And, in any event, our summary judgment review is de novo, and we 

agree with Will that this issue further supports our ruling in his favor. 

¶26 In summary, we agree with Will that there are genuine issues of 

material facts on the current record that preclude summary judgment in the 

defendants’ favor. There are questions as to whether the agreement between Will 

and Progressive required a signed release, and whether Will understood that by 

cashing Progressive’s check, he was fully and finally settling the full value of his 

bodily injury claim. On this record, these material factual questions must be 

resolve by a fact finder. The circuit court therefore erred in granting Progressive’s 

motion for summary judgment. For these reasons, we reverse and remand for 

further proceedings. 

By the Court.—Judgment reversed and cause remanded for further 

proceedings. 

Not recommended for publication in the official reports.