DEMARCO et al.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
MILLER, P.J., ANDREWS and BROWN, JJ.
DeMarco, individually, and as administrator of the estate of
Philip DeMarco, deceased, filed a complaint against State
Farm Mutual Automobile Insurance Company ("State
Farm") seeking enforcement of a settlement agreement.
She appeals from the superior court's order granting
summary judgment in favor of State Farm, contending that
genuine issues of material fact exist with regard to (1)
whether she unreasonably delayed performing her obligations
under the settlement agreement and (2) whether she retracted
an alleged anticipatory repudiation of the settlement
agreement. For the reasons explained below, we disagree and
reviewing the trial court's order on both a motion to
enforce a settlement agreement and a motion for summary
judgment, we apply a de novo standard of review and, thus,
view the evidence in a light most favorable to the nonmoving
party." (Footnotes omitted.) Sherman v. Dickey,
322 Ga.App. 228, 231 (1) (744 S.E.2d 408) (2013). The record
in this case contains limited information about the two
underlying liability lawsuits that are related to the
petition to enforce a settlement at issue in this appeal. It
shows that on July 29, 2007, Philip DeMarco was injured when
his vehicle was struck by a car that knocked his vehicle into
another lane of traffic, where it was struck again by a
different vehicle driven by Jacob Pittman. In March 2008,
Philip DeMarco and his wife, Patricia DeMarco, filed a
complaint against Pittman and Jackie Kimbrell, the owner of
the car driven by Pittman. The complaint alleged that
Kimbrell was liable based upon a theory of negligent
same month, State Farm tendered its policy limits of $25,
000, provided the DeMarcos agreed to release all of their
claims against both Kimbrell and Pittman. In June 2008, a
different insurance carrier similarly tendered its policy
limits of $25, 000 "in release of all claims." The
record before us does not include all of the court records
from the 2008 lawsuit. From what we can determine, it appears
there was some dispute between the parties about the
existence of a settlement before April 2010. An April 21, 2010
order granting Pittman and Kimbrell's motion for summary
judgment "as to the liability of the defendants"
references a pending motion in the alternative to enforce a
settlement agreement filed by the defendants . The trial
court did not rule upon the motion to enforce a settlement
reasons we cannot determine from the record before us,
Mrs. DeMarco's attorney believed the case could be tried
in late 2010, and wrote a letter to both insurance carriers
accepting their respective $25, 000 offers that had been made
in 2008, if they were "still on the table." On
November 23, 2010, counsel for State Farm wrote the following
We are enclosing the following:
1) Check number 127705856J in the amount of $25, 000.00 made
payable to Mr. and Mrs. Demarco and your firm; and,
2) Full Release and Notice to Claimants.
The enclosed settlement funds are being delivered to you in
trust pending full and complete execution of the enclosed
Full Release and Notice to Claimants. Please do not disburse
any settlement funds until the enclosed Release has been
signed and returned to me. Please let me know if you have any
questions or concerns.
. . .
P. S. The enclosed check is the old check we sent back and
forth several years ago. Although the check is dated 2/14/08,
it remains negotiable.
check was made payable to "Philip DeMarco & Patty
DeMarco, individually and as husband and wife & . . .
their attorney." The release had signature lines for
both of the DeMarcos.
DeMarcos did not execute the release or cash the check before
Mr. DeMarco died on April 13, 2011, approximately five months
later. According to a letter from her attorney, Mrs. DeMarco
"had an extremely rough time" after her husband
died. On October 13, 2011, Mrs. DeMarco filed a second
lawsuit against Pittman and Kimbrell that raised a claim of