В сложной финансовой ситуации приходит на помощь кредит наличными в Казахстане.

settlement

Must be a Meeting of the Minds for there to be a Settlement

Posted by David Adelstein on October 30, 2019
Trial Perspectives / Comments Off on Must be a Meeting of the Minds for there to be a Settlement

A settlement agreement is governed under the tenets of contract law – there needs to be a meeting of the minds for there to be a settlement.  Ideally, you want this meeting of the minds to be memorialized in writing in a settlement agreement.  However, what if it is not memorialized in a written settlement agreement?

As is true of contracts generally, a settlement agreement is formed “only when one party makes an offer and another party accepts it.”  An acceptance sufficient to create an enforceable agreement “must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer.”  This ensures that there is a “meeting of the minds” between the parties on all essential terms. “[W]here it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.”

Basner v. Bergdoll, 44 Fla.L.Weekly D2593a (Fla. 1st DCA 2019) (internal citations omitted).

By way of example, in Basner, an automobile accident occurred. The accident was caused by a vehicle driven by the child of the owners.  The owners’ insurer sent a check to the plaintiffs and a release that required the plaintiffs to release the owners and their child.  The plaintiffs marked up the release because they did not want to release the owners’ child and signed the release, but held onto, and did not cash, the check.  The plaintiffs did not hear back from the insurer and ultimately returned the check and sued the owners and their child. 

The owners moved for summary judgment contenting there was a settlement agreement and they had been released.   The trial court agreed and enforced the release as to the owners.  The appellate court, however, reversed because there was NO meeting of the minds. The plaintiffs marked up the release and, thus, did not agree to the terms the insurer proposed in issuing the check, which was a release of the owners and the owners’ child.  Instead, the plaintiff’s made a counteroffer in marking up the release in agreeing to release only the owners.  When the plaintiffs did not hear back from the owners’ insurer, they returned the check ultimately terminating their counteroffer.  Hence, there was NO meeting of the minds.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:
error

Tags: , , ,

Set-Off when Entering into Settlements in Multi-Party Disputes

Posted by David Adelstein on March 25, 2018
Trial Perspectives / Comments Off on Set-Off when Entering into Settlements in Multi-Party Disputes

Lawsuits oftentimes involve multiple parties.  This could include multiple defendants or third-party defendants, whatever the case may be.  During the course of the dispute, there are avenues for settlement.  With a multi-party dispute, sometimes the stars are aligned where a favorable global settlement works out.  Sometimes, a party needs to settle with some, but not all, of the defendants.  This means the plaintiff will need to try the case against the remaining defendants (or parties).  The remaining defendants, obviously, want the settlements with the settling defendants to be used to set-off any damages or judgment entered against them.  For example, if the plaintiff settles with multiple defendants for $1 Million and recovers damages against the remaining defendants for $1.5 Million at trial, the remaining defendants want the $1 Million in pre-suit settlements to be set-off from their damages award.  This means their exposure is not a $1.5 Million judgment, but instead, a $500,000 principal judgment — a big difference, right!  

The issue of set-off is an issue that should not be overlooked in multi-party disputes, specifically from the plaintiff considering pre-suit settlements.  Time should be dedicated to trying to craft settlements to truly prevent a set-off, which is designed to prevent the plaintiff from recovering a gratuitous windfall.  For more information on a construction defect case where the issue of set-off hurt a plaintiff based on the broad wording in settlement agreements, view this article.  Due to pre-suit settlements, the plaintiff’s damages against the remaining defendants at trial were reduced by the total sum of the settlements.  All because of this set-off doctrine; had the settlement agreements been drafted differently, perhaps the plaintiff’s damages awarded at trial would not have been set-off by the pre-suit settlements.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:
error

Tags: , , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com