ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
appeal arises from an accident in which Michael Stephens'
vehicle collided with Yolanda Castano's vehicle. On
appeal, Michael Stephens (the defendant in the underlying
litigation) argues that the trial court erred: (1) in denying
his motion to enforce a settlement agreement; (2) by
prohibiting questioning and evidence regarding a treating
physician's financial interest in the case; and (3) by
excluding questioning and evidence related to the treating
physician's potential bias and credibility. We decline to
find that the trial court committed error when it denied
Stephens' motion to enforce the settlement agreement and
when it excluded evidence that Castano's attorney
referred her to the treating physician. However, Stephens
should have been permitted to introduce evidence of the
treating physician's financial interest in the case.
Therefore, for the reasons that follow, we affirm in part and
reverse in part.
a car accident in which Castano claimed she was injured by a
vehicle driven by Stephens, Castano retained legal counsel.
On September 3, 2013, Castano's counsel sent a settlement
demand for the $25, 000 insurance policy limits to
Stephens' insurer. In addition to requesting payment in
the amount of the policy limits, the settlement demand letter
indicated that settlement was contingent upon sworn
affidavits from the insurer, insured, and defense counsel
regarding the amount of insurance coverage available, and a
limited release. The demand letter indicated that it would
otherwise be withdrawn in 30 days, and that payment was to be
made within that time.
days later, a representative from Stephens' insurer
called Castano's counsel to indicate that it would pay
policy limits, would work with defense counsel on the limited
release, and that it was attempting to contact Stephens with
respect to the affidavit. The insurance representative stated
that she could not immediately issue the check and that she
would have to wait until she was instructed to do so by
defense counsel. Castano's counsel indicated that he
would wait to hear from defense counsel.
November 5, 2013, defense counsel contacted Castano's
counsel via email "to facilitate the settlement of this
matter." To that end, defense counsel requested the
status of any liens resulting from the accident and drafting
instructions for the settlement check. A little over an hour
later, Castano's counsel responded with payment
instructions for the check and stated that liens were being
negotiated and would be paid from "this recovery"
directly from their escrow account. Defense counsel requested
confirmation that there were no Medicare or Medicaid liens
and that a limited liability release had been requested (as
opposed to a general release). Minutes later, Castano's
counsel clarified that there were no Medicare or Medicaid
liens and that a limited liability release was all that was
one week later, Castano's counsel sent a letter to
defense counsel claiming that Stephens and his insurer had
failed to timely respond to the settlement demand, and that
any payment of the policy limits would be rejected. Two weeks
later, Stephens' insurer tendered the $25, 000 settlement
check and proposed limited liability release to Castano's
counsel. Castano's counsel immediately rejected the
tender, stating that the insurer's delays had been
filed suit against Stephens alleging negligence and
negligence per se and requested damages and attorney fees.
Stephens filed a motion to enforce the settlement. Following
a hearing, the trial court denied the motion, stating that by
its express terms, the original offer contained in the demand
letter had expired on October 5, 2013, and that the emails
exchanged between the parties, alone, were not sufficient to
constitute an offer and acceptance such that a new contract
to settle between the parties could be inferred following the
expiration of the original offer.
to trial, Castano filed a motion in limine to exclude any
reference or suggestion that she was referred to Dr.
Chappuis, the physician who performed her neck surgery, by
her attorney or that her attorney assisted in securing
funding for the treatment. Stephens objected, noting that the
jury was entitled to consider Dr. Chappuis' financial
interest in the case and potential bias, interest, or
partisanship. Following oral argument, the trial court
granted Castano's motion, noting that the attorney
referral to the physician was not relevant, and that Dr.
Chappuis would be entitled to collect on the amounts owed
regardless of the outcome of the case, and that the lien on
the lawsuit was merely security on the debt.
trial, Stephens made an offer of proof to introduce testimony
and evidence regarding Dr. Chappuis' financial interest
and potential bias in the case. The jury awarded a verdict of
$700, 000 against Stephens. This appeal followed.
Stephens argues that the trial court erred in denying his
motion to enforce settlement. This Court applies a de novo
standard of review to a trial court's order on a motion
to enforce a settlement agreement. DeRossett Enter., Inc.
v. Gen. Elec. Capital Corp., 275 Ga.App. 728,
728 (621 S.E.2d 755) (2005).
Because the issues raised are analogous to those raised in a
motion for summary judgment, in order to succeed on a motion
to enforce a settlement agreement, a party must show the
court that the documents, affidavits, depositions and other
evidence in the record reveal that there is no evidence
sufficient to create a jury issue on at least one essential
element of the ...