DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

JOHNNY THOMPSON, as Personal Representative of the ESTATE OF 

SCOTT THOMPSON, on behalf of the surviving parents, JOHNNY and 

MARIE THOMPSON,

Appellant,

v.

ESTATE OF KENDRICK KEVIN MAURICE, CHRISTICE GUILLAUME, 

JACKSON JOSEPH and PATRICIA GUILLAUME,

Appellees.

No. 4D13-2618

[ November 12, 2014 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; John J. Murphy, III, Judge; L.T. Case No. 11-6135 (21).

Elliot B. Kula, and W. Aaron Daniel, Aventura, and David Kleinberg of 

Neufeld, Kleinberg & Pinkiert, P.A., Aventura, for appellant.

Dennis P. Dore and Paula Parker, Jacksonville, for Appellees-Estate of 

Maurice, Christine Guillaume, Jackson Joseph and Patricia Guillaume.

TAYLOR, J.

This appeal arises from the trial court’s orders granting the defendants’ 

motion to enforce a pre-suit settlement and motion for summary judgment 

in a wrongful death action. The issue is whether the evidence 

demonstrated that the parties reached a binding settlement agreement 

before appellant filed suit. Because the evidence failed to support a finding 

that there was a meeting of the minds between the parties as to every 

essential element, we reverse.

The plaintiff’s son, Scott Thompson, was a passenger in a car that spun 

out of control, causing an accident that resulted in the death of everyone 

in the car. On February 9, 2011, plaintiff, as personal representative of 

the Estate of Scott Thompson, on behalf of the surviving parents, sent a 

demand letter through his counsel to GEICO Insurance Company, 

(“GEICO”). In his demand letter, plaintiff made a settlement offer 
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enumerating four conditions for acceptance:

1) Receipt of an affidavit of no additional insurance coverage 

executed and notarized by a representative of GEICO

Insurance Company.

2) Receipt by our office a [sic] certified policy # 4186492783.

3) Tender of a property damage check in the amount of 

$1,830.00 made payable to the Estate of Scott Thompson. 

. . .

. . . .

4) Tender of a settlement draft in the full amount of the bodily 

injury policy limits available for your insured, made 

payable to the Estate of Scott Thompson and Ellis, Ged & 

Bodden, P.A. Please be advised that this settlement offer 

will remain open until 5:00 p.m. on March 9, 2011. . . .

On March 4, 2011, GEICO responded to the plaintiff’s demand letter, 

stating:

Please accept the following as a complete acceptance of the 

terms and conditions of your demand letter of February 9, 

2011, within the 30 day demand timeframe. According to 

those terms and conditions, enclosed please find the following:

1. An Affidavit of no additional insurance coverage, executed 

and notarized by a representative of GEICO Insurance 

Company;

2. Another certified copy of policy number 4186492783, 

which had previously been forwarded to you;

3. A Property Damage check in the amount of $1,830.00 

made payable to the Estate of Scott Thompson; and

4. The settlement draft in full amount of the Bodily Injury 

policy limits of $20,000.00 made payable to the Estate of 

Scott Thompson and Ellis, Ged & Bodden, P.A.

GEICO’s responsive letter mirrored the four settlement conditions set 

out in plaintiff’s demand letter. However, the letter went on to state the 

following:
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In addition to the above, please also find enclosed the 

following:

1. An Affidavit of Christice Guillaume, also attesting that she 

had no additional insurance coverage available for the 

subject accident; and

2. A release of all claims, as to my clients and GEICO’s 

insureds, Christice Guillaume and Patricia Guillaume, upon 

which this demand and acceptance is conditioned which is 

appropriate pursuant to Maldonado v. First Liberty 

Insurance Corporation, 342 Fed. Appx. 485 (11th Cir. Ct. 

of Appeals 2009).

We would appreciate receipt of the executed release, along 

with a copy of the Letters of Administration of the Estate, prior 

to disbursement of the proceeds of this settlement.

(emphasis added).

The release contained the following indemnification language:

Further, in return for the above-recited consideration, I do 

hereby agree to fully indemnify and hold harmless the above 

released parties against any and all claims, liens, or rights of 

reimbursement by any person, entity or insurance carrier, 

personal injury protection carrier, or health, surgical, 

medical, or hospitalization insurer, whether group or 

otherwise, arising out of the alleged incident, by myself or my 

claims for damages arising therefrom, including but not 

limited to any expenses arising out of services rendered in 

connection with the aforementioned injuries or damages; said 

agreement to indemnify and hold harmless to include 

attorneys’ fees incurred by the aforementioned released 

parties herein as a result of any claims against them from the 

aforementioned incident. I further agree to fully indemnify 

and hold harmless the above released parties against any and 

all derivative claims arising out of the alleged incident, 

including but not limited to, any claims for loss of consortium; 

said agreement to indemnify and hold harmless to include 

attorney’s fees incurred by the aforementioned released 

parties herein as a result of any claims against them from the 

aforementioned incident.
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On March 15, 2011, the plaintiff filed a complaint against the Estate of 

Kendrick Kevin Maurice, Christice Guillaume, Jackson Joseph, and 

Patricia Guillaume. As amended, the complaint alleged that on the date 

of the incident, Kendrick Kevin Maurice was driving a car, with the consent 

of the owners/lessors, and negligently caused the vehicle to spiral out of 

control and collide with a tree, killing Scott Thompson. The amended 

complaint asserted four counts against defendants as follows: Count 1, 

Negligence of Estate of Kendrick Kevin Maurice; Count 2, Vicarious 

Liability against Christice Guillaume; Count 3, Vicarious Liability against 

Jackson Joseph; and Count 4, Vicarious Liability against Patricia 

Guillaume.

Defendants Christice Guillaume, Jackson Joseph, and Patricia 

Guillaume together filed an Answer and Affirmative Defenses, wherein they 

asserted as their fifth affirmative defense that, “a settlement was reached 

by and between the Plaintiffs and certain Defendants, and to the extent of 

that settlement, this action is barred by the Doctrine of Accord and 

Satisfaction.” The Estate of Kendrick Kevin Maurice filed its Answer and 

Affirmative Defenses, also asserting as its fifth affirmative defense that a 

settlement had been reached.

The plaintiff filed a “Motion for Summary Judgment as to Defendant, 

Estate of Kendrick Kevin Maurice’s Fifth Affirmative Defense,” asserting 

that there was no issue of material fact as to the Estate of Kendrick Kevin 

Maurice’s fifth affirmative defense and that there had been no settlement 

between the parties, satisfaction and accord, agreement to settle, nor 

meeting of the minds. The plaintiff attached to the motion supporting 

affidavits in which he and his wife attested that no settlement had been 

reached prior to suit, and that no money had been paid.

The defendants moved for partial summary judgment, asserting that 

there was no issue of material fact as to their fifth affirmative defense 

because GEICO’s responsive letter constituted an acceptance of the terms 

of the demand letter. The defendants attached to their motion a copy of 

the demand letter and the responsive letter with its attachments. At the 

same time, they filed their Motion to Enforce Settlement.

The trial court held a hearing on all three motions. The parties agreed 

that no checks had been cashed and that the release was never signed. 

The plaintiff argued that GEICO’s responsive letter did not constitute an 

acceptance to the demand letter, because it sought to release Patricia 

Guillaume, a non-party at the time and a non-insured under GEICO’s 

policy. The plaintiff also argued that the release contained objectionable 
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indemnification language and a hold harmless clause. The defendants 

asserted that they were entitled to request a release as part of their 

acceptance, and that there had been no correspondence from the plaintiff

objecting to the release or its language.

The trial court entered its orders: (1) granting the defendants’ Motion 

for Partial Summary Judgment; (2) granting the defendants’ Motion to 

Enforce Settlement; and (3) denying the plaintiff’s Motion for Summary 

Judgment as to the defendant, Estate of Kendrick Kevin Maurice’s Fifth 

Affirmative Defense.

On appeal, the plaintiff argues that the trial court erred in finding that 

there was an enforceable settlement agreement between the parties and 

granting summary judgment in favor of the defendants. Specifically, the 

plaintiff argues, as he did below, that the defendants failed to demonstrate 

the plaintiff’s assent to every essential element of the agreement because 

GEICO’s proposed release contained objectionable and unusual terms, 

including extensive indemnification language not bargained for and the 

release of Patricia Guillaume, a non-insured, non-policy holder. Contrary 

to the defendants’ position, we find that this issue was preserved for our 

review. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 

(Fla. 2005) (“In order to be preserved for further review by a higher court, 

an issue must be presented to the lower court, and the specific legal 

argument or ground to be argued on appeal or review must be part of that 

presentation if it is to be considered preserved.”).

The granting of a motion for summary judgment is reviewed de novo. 

Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 

2000). Summary judgment is appropriate only where “there is no genuine 

issue of material fact and if the moving party is entitled to a judgment as 

a matter of law.” Fla. R. Civ. P. 1.510(c).

The burden is on the moving party to show “conclusively the absence 

of any genuine issue of material fact, and the court must draw every 

possible inference in favor of the party against whom a summary judgment 

is sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). “If the 

evidence raises any issue of material fact, if it is conflicting, if it will permit 

different reasonable inferences, or if it tends to prove the issues, it should 

be submitted to the jury as a question of fact to be determined by it.” Id.

Additionally, “[t]he interpretation of a written contract is a question of 

law and the appellate court construes the contract under a de novo

standard of review.” Command Sec. Corp. v. Moffa, 84 So. 3d 1097, 1099 

(Fla. 4th DCA 2012) (quoting Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 
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766 So. 2d 294, 296 (Fla. 4th DCA 2000)) (internal quotation marks 

omitted).

“As settlement agreements are contractual in nature, they are 

interpreted and governed by contract law.” Barone v. Rogers, 930 So. 2d 

761, 763-64 (Fla. 4th DCA 2006) (citing Cheverie v. Geisser, 783 So. 2d 

1115, 1118 (Fla. 4th DCA 2001)). “To be enforceable, a settlement 

agreement ‘must be sufficiently specific and mutually agreeable as to every 

essential element.’” Id. at 764 (quoting Long Term Mgmt., Inc. v. Univ. 

Nursing Care Ctr., Inc., 704 So. 2d 669, 673 (Fla. 1st DCA 1997)). As we 

explained in Cheverie, “[a]lthough the law favors settlement agreements 

and their enforcement whenever possible, the evidence must clearly 

demonstrate that there was mutual agreement to the material settlement 

terms.” Cheverie, 783 So. 2d at 1119. Additionally, “[t]he making of a 

contract depends not on the agreement of two minds in one intention but 

on the agreement of two sets of external signs. A trial court’s finding of a 

meeting of the minds must be supported by competent substantial 

evidence.” Id. (internal citations omitted). As to the burden of proof, the 

party seeking judgment on the basis of settlement bears the burden of 

establishing assent by the opposing party. Id.

“Generally, the acceptance of an offer which results in a contract must 

be absolute and unconditional, identical with the terms of the offer, and 

in the mode, at the place, and within the time expressly or impliedly stated 

within the offer.” Cheverie, 783 So. 2d at 1119. Therefore, acceptance of 

an offer “must contain an assent to the same matters contained in the 

offer.” Id.

In Cheverie, the plaintiff’s husband died as a result of injuries he 

sustained when the defendant collided with his automobile. 783 So. 2d at 

1116. After several months of negotiations between the plaintiff’s attorney 

and the defendant’s insurer, Allstate, plaintiff filed a wrongful death action 

against the defendant. The defendant filed a counterclaim for declaratory 

relief, alleging that the parties had reached a settlement agreement for the 

defendant’s insurance policy limits. The plaintiff disputed this claim,

asserting that “there was no valid settlement agreement because there was 

no meeting of the minds on two essential terms: (1) indemnification 

language in the release proposed by Allstate; and (2) production of the 

policy limits affidavit.” Id. at 1116-17.

In reversing the trial court’s dismissal of the complaint, we concluded 

that the trial court’s finding that the parties had reached an enforceable 

settlement agreement was not supported by competent, substantial 

evidence. We held that the indemnification language in the release 
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proposed by the defendant was a crucial term, and there was no evidence 

that the plaintiff agreed to the indemnification language. Id. at 1119. We 

stated, “[w]here the language of a release is disputed and the parties fail 

to reach an agreement as to the character, nature, or type of release to be 

used, an essential element of the agreement is not established.” Id.

The plaintiff acknowledges that a release is implicit in an offer of 

settlement, as part of the procedure to effectuate the agreement. See 

Erhardt v. Duff, 729 So. 2d 529, 530 (Fla. 4th DCA 1999) (holding that “the 

execution of the release was implicit as part of the tender, and not an 

additional element of the agreement”). However, he contends that the 

parties in this case, as in Cheverie, failed to reach an agreement as to “the 

character, nature, or type of release to be used” and establish “an essential 

element of the agreement.” Cheverie, 783 So. 2d at 1118.

Here, the plaintiff’s settlement offer did not contain any indemnification 

language. Instead the offer enumerated a closed list of conditions, 

“complete performance of each of every one” of which would constitute 

acceptance by GEICO and the defendants. GEICO, however, conditioned 

its acceptance upon execution of a release that introduced broad 

indemnification language, thereby injecting a new “essential element of the 

agreement” into the pre-suit negotiations. Thus, GEICO did not assent to 

“the same matters contained in the offer.” See Cheverie, 783 So. 2d at 

1119. As such, GEICO’s responsive letter was not a valid acceptance, but 

rather a counteroffer. See Nichols v. Hartford Ins. Co. of the Midwest, 834 

So. 2d 217, 219 (Fla. 1st DCA 2002) (indemnification language is an 

essential term, requiring assent to form a settlement contract); Knowling 

v. Manavoglu, 73 So. 3d 301, 303-04 (Fla. 5th DCA 2011) (“[T]he release 

tendered by Allstate did not meet the dictates of the offer. The offer was 

expressly conditioned upon acceptance by performance, which included 

the provision of a ‘ready for signature’ release to settle the claim for bodily 

injury only. The tendered release purported to encompass all claims 

arising from the accident, and included indemnification language, a new 

term, not contained within the offer. . . . As such, the so-called acceptance 

was nothing more than a counter-offer, and the plaintiff was not bound by 

it in the absence of a manifestation of assent to the additional terms.”).

Because the defendants failed to meet their burden to demonstrate 

mutual assent as to every essential element of the agreement, we reverse 

the orders enforcing the settlement agreement, granting summary 

judgment for the defendants, and denying the plaintiff’s Motion for 

Summary Judgment as to the defendant Estate of Kendrick Kevin 

Maurice’s Fifth Affirmative Defense.
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Reversed and Remanded.

WARNER and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.