### COURT OF APPEALS DECISION DATED AND FILED August 20, 2019

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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP753 Cir. Ct. No. 2016CV9173 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

D AVID J. M C C ORMICK AND P EARSE A. M C C ORMICK ,
P LAINTIFFS -A PPELLANTS ,

V .
A UTO C LUB I NSURANCE A SSOCIATION ,
D EFENDANT -R ESPONDENT .

APPEAL from an order of the circuit court for Milwaukee County : ELLEN R. BROSTROM, Judge. Affirmed

. Before Brash, P.J., Kessler and Dugan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2018AP753

2 ¶1 PER CURIAM. David J. McCormick and Pearse A. McCormick (collectively, “Plaintiffs”) appeal the dismissal of their c laims against the Auto Club Insurance Association (“AAA”). The Plaintiffs argue that the trial court erred when it granted summary judgment in favor of AAA after co ncluding that
the Plaintiffs’ claims were barred under the doctrine of accord and satisfaction, and when it denied the Plaintiffs’ motion for reconsideration. We affirm.

BACKGROUND
¶2 David McCormick (“McCormick”) and his minor son, Pearse McCormick (“Pearse”), were involved in an automobile accident with an uninsured driver in 2012. In December 2016, the Plaintiffs filed suit against AAA, which provided auto insurance for McCormick, including uninsured motorist coverage. The suit alleged that McCormick suffered a back injury that required medical treatment and that as a result of McCormick’s injur y, Pearse had suffered the loss of McCormick’s services, society, and companionship.
¶3 In its answer, AAA pled several affirmative defenses, includ ing that there had been an accord and satisfaction. AAA subsequently moved for sum mary judgment on that basis, arguing that the Plaintiffs’ claims were barred. AAA asserted that it was undisputed that it sent McCormick a $20,000 che ck on July 13, 2016, which McCormick cashed. AAA claimed that the $20,000 check was
offered in full satisfaction of the Plaintiffs’ claims. Accor dingly, AAA argued, the Plaintiffs were barred from seeking additional damages from AAA.
¶4 Based on documents discussed more fully below, the trial court granted AAA’s motion for summary judgment, and it also denied the Plaintiffs’ motion for reconsideration. This appeal follows.No. 2018AP753

3 STANDARD OF REVIEW
¶5 We review a grant of summary judgment de novo , applying the wellestablished summary judgment methodology. See Tews v. NHI, LLC , 2010 WI 137, ¶¶40-41, 330 Wis. 2d 389, 793 N.W.2d 860. “Summary judgment is appropriate where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.” Id. , ¶42; see also W IS

. S TAT

. § 802.08(2) (2017-18). 1

DISCUSSION
¶6 At issue is whether the undisputed facts demonstrate that the Plaintiffs’ claims are barred by the doctrine of accord and satisfaction. “An ‘accord and satisfaction’ is an agreement to discharge an existi ng disputed claim
and constitutes a defense to an action to enforce a claim.” 2 Butler v. Kocisko , 166 Wis. 2d 212, 215, 479 N.W.2d 208 (Ct. App. 1991). Our supreme court has explained how this doctrine applies when a debtor gives a settle ment 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

1 All references to the Wisconsin Statutes are to the 2017-18 versi on unless otherwise noted.

2 On appeal, the Plaintiffs note that in their motion for reconsi deration, they argued that because McCormick was its insured, “AAA owed McCormick a heig hten[ed] duty of good faith.” It is not clear if the Plaintiffs are continuing to assert on appeal that this court should analyze the law of accord and satisfaction differently because the settle ment offer was made by an insurance company to its insured. To the extent that is their intent, we decline to address the issue because it is not adequately developed. See State v. Pettit , 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“We may decline to review issues inadequately briefed.” ).No. 2018AP753

4 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.

See Flambeau Prods. Corp. v. Honeywell Info. Sys., Inc. , 116 Wis. 2d 95, 101, 341 N.W.2d 655 (1984).
¶7 “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. In this case, it is undisputed that there was a bona fide dispute, and although the Plaintiffs disputed the element of consideration i n the trial court, they have not pursued that issue on appeal. The Plaintiffs acknowle dge that cashing a check can constitute acceptance, but they argue that the re can be no acceptance where there is not a valid offer. Because the Plai ntiffs do not dispute that there was a bona fide dispute, acceptance, and consideration, r esolution of this appeal turns on whether there was a valid offer. More specific ally, we must consider whether McCormick had “reasonable notice that the check [ was] intended to be in full satisfaction of the debt.” See Flambeau , 116 Wis. 2d at 111 (“[T]he creditor must have reasonable notice that the check is intended to be in full satisfaction of the debt.”).
¶8 The Plaintiffs identify “seven key pieces of undisputed docum entary evidence” that are relevant to this case. The first is a dema nd letter that McCormick personally sent to AAA on November 18, 2015. 3 McCormick listed past medical costs of about $9000 and future medical costs of about $239,00 0, including twenty-eight years of acupuncture, physical therapy, a nd other

3 McCormick is a personal injury attorney and represented him self in negotiations with AAA. The Plaintiffs retained counsel prior to filing their lawsui t in December 2016.No. 2018AP753

5 treatments. McCormick’s demand letter indicated that he would also seek damages for his pain and suffering in an amount equal to his medica l expenses, as
well as claims for loss of consortium for his wife and son. He demanded the “full policy limit of $300,000.”
¶9 The second document is an April 4, 2016 letter from AAA’s claim s representative to McCormick. That letter, which reference s a conversation between the claims representative and McCormick, contains an of fer to settle McCormick’s claim for “$20,000, all-inclusive.” The letter also indic ated that AAA believed that McCormick’s injury was “an aggravation of a pr e-existing
condition.”
¶10 On July 13, 2016, McCormick sent a letter to the claims representative via email. 4 That letter stated:

This will acknowledge receipt of your letter dated April 4, 2016 in this matter. It has been my position that the full value of my claim exceeds the available limits ($300,000) of [uninsured motorist] coverage provided by AAA. Because AAA concedes that the value of my claim is at least $20,000 in “new money,” please promptly remit that amount, together with interest thereon, calculated at 12% from December 18, 2015—30 days after the [date] I submitted documentation supporting my claim. I am in the process of formally retaining separate legal counsel who will shortly be filing a Summons & Complaint in Milwaukee County Circuit Court. As previously discussed, the Complaint [] will include a consortium claim for my 11 1/2 year old son. This Milwaukee County action will be the forum for establishing my entitlement to the remainder of the limits of my [underinsured motorist] coverage, as well as determining my son’s consortium claim.

4 Although McCormick’s July 13, 2016 letter did not reference conversat ions with the AAA claims representative, McCormick asserted in his af fidavit in support of his motion for reconsideration that negotiations with the claims representat ive “took place via email and by telephone” and that those negotiations were reflected in his July 13, 2016 l etter.No. 2018AP753

6 Thus, consistent with AAA’s duty of good faith and fair dealing, please forward to me a check within five (5) business days.
¶11 Also on July 13, 2016, 5 AAA’s claims representative sent a letter to McCormick that stated:

Under separate cover you will receive our settlement check in the amount of $20,000.00. This payment represents the value of your Uninsured Motorist Bodily Injury claim. We do not agree that you would be entitled to any interest and have not included any in the amount. Our offer was made in an attempt to reach a compromise to a disputed claim. An Uninsured Motorist Bodily Injury Release is enclosed. Should you change your mind in pursuing a lawsuit, please sign the release before a notary and return to
me. You are responsible for payment of all liens, known and unknown, from the settlement amount.

Included with that letter was a release form that indicated Mc Cormick was releasing AAA from liability in exchange for $20,000. It is undisput ed that McCormick never signed the release form.
¶12 On the same day that AAA’s claims representative sent Mc Cormick the letter and release, it sent McCormick a $20,000 check. The face of the check listed the claim number and date of loss, but it did not otherwise specify the purpose of the payment. However, the check stub listed the cla im number, payee (McCormick), and the date of loss. That check stub also contained this language:

5 In its appellate brief, AAA indicates that its July 13, 2016 correspondence was sent in response to McCormick’s July 13, 2016 email.No. 2018AP753

7 CLAIMANT: DAVID MCCORMICK
COVERAGE: UNINSURED MOTORIST BI
PURPOSE: FULL & FINAL SETTLEMENT OF CLAIMS BENEFIT TYPE[:] Liability Payment PAYMENT REASON[:] Settlement of All Claims AMOUNT[:] $20000.00
¶13 A copy of the $20,000 check indicates that McCormick endorsed it and deposited it on July 18, 2016.
¶14 Having reviewed those undisputed documents, we conclude that as a matter of law, AAA’s July 13, 2016 correspondence, check, and check s tub gave McCormick “reasonable notice that the check [was] intended to be in full
satisfaction” of his claims. See Flambeau , 116 Wis. 2d at 111. AAA told McCormick in its letter that the $20,000 “settlement check” it w as sending under separate cover “represents the value” of his underinsured motorist claim. That letter further rejected McCormick’s request for interest on his claim and stated that AAA’s offer “was made in an attempt to reach a compromise on a disputed claim.” The check itself referenced McCormick’s claim numbe r and date of loss. The check stub stated that the purpose of the check was “Full & Final Settlement of Claims” and that the reason for the payment was “Settle ment of All Claims.” (Some capitalization omitted.) The language of the letter and the notations on the check and check stub provided reasonable notice that AAA was offe ring to settle McCormick’s claims for a total of $20,000.
¶15 The Plaintiffs disagree with this conclusion. They offer seve ral reasons why McCormick “lacked reasonable notice of the terms of the offer.” They explain:No. 2018AP753

8 McCormick and AAA both knew that $20,000 was not the full extent of his claims. The offer AAA made to McCormick—its own insured—was ambiguous in its terms. The July 13, 2016 letter never stated that merely depositing the check would be seen as agreeing to all of the terms in the release provided. The correspondence between the parties makes clear that at no time did McCormick even hint at accepting $20,000 as a full settlement of his claims. Furthermore, it is not reasonable to believe that anyone looking at approximately $240,000 of medical bills would cheerfully accept $20,000 instead.
(Record citations omitted.) The Plaintiffs further argue that the release sent along with AAA’s July 13, 2016 letter “was confusing and ambiguous on its f ace” because “[b]y its own terms it was to be signed, notarized and returned before AAA would send McCormick a check.” The Plaintiffs also assert t hat the letter “clearly contemplates further litigation—even if McCormick accepted the check.” They argue that “McCormick believed the $20,000 was a payment of the minimum AAA owed him, and that it had been provided as a way to st op interest running on his settlement demand.”
¶16 We are not persuaded by the Plaintiffs’ arguments. AAA’s J uly 13, 2016 letter clearly indicated that AAA was offering to settle all of the claims for $20,000, as it had offered in the past. The letter did not suggest that AAA intended to make a partial payment and contemplated paying mo re in the future. Indeed, the letter stated: “Our offer was made in an attempt to reach a compromise to a disputed claim.” Further, the letter expli citly indicated that it disagreed with McCormick’s demand for interest and had not included int erest in
the offer.
¶17 We note that AAA’s letter referred to a release that Mc Cormick did not sign. The parties and the trial court discussed this at length a t the motion hearing. Ultimately, the trial court was persuaded that the defe nse of accord andNo. 2018AP753

9 satisfaction is separate from the defense of release. 6 We agree. AAA’s letter indicated that McCormick should sign the release if he did not plan to pursue litigation. While the release itself indicated that a settl ement check would be sent after the release was signed, AAA chose to send the check immedia tely. If McCormick had signed the release, AAA would have had another defense to the lawsuit. The fact that the release was not signed does not defeat AAA’s de fense of accord and satisfaction; none of the cases the parties discuss in their br iefs requires a debtor asserting the defense of accord and satisfaction to obt ain a written release
before the defense is effective.
¶18 In short, we are not persuaded that the reference to a written release in AAA’s July 13, 2016 letter created an ambiguity that overrides t he language of the letter, the check, and the check stub. Those documents provi ded, as a matter of law, “reasonable notice” that AAA’s check was intended to se ttle all of McCormick’s claims. See id. , 116 Wis. 2d at 111. McCormick chose to accept AAA’s settlement offer when he cashed the $20,000 check. Accordingly, ba sed on the undisputed documentary evidence presented in this case, we agr ee with the
trial court that AAA had a valid accord and satisfaction defense a nd was therefore entitled to summary judgment. Furthermore, we agree with the tri al court that there was no basis to grant the Plaintiffs’ motion for reconsidera tion. For these reasons, we affirm.

By the Court. —Order affirmed.

6 W ISCONSIN S TAT

. § 802.02(3) provides a list of affirmative defenses that includes both “accord and satisfaction” and “release.”No. 2018AP753

10 This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.