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Demarco v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Georgia, Second Division

July 13, 2018

DEMARCO et al.
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

          MILLER, P.J., ANDREWS and BROWN, JJ.

          BROWN, JUDGE.

         Patricia 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 affirm.

         "[I]n 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 entrustment.

         That 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.[1] 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 agreement.

         For reasons we cannot determine from the record before us, [2] 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 letter:

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.

         The 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.

         The 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 wrongful ...


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