In a negligence case arising from a motor vehicle collision, we granted Beverly Mealer’s application seeking interlocutory review of the denial of her motion to enforce a settlement agreement with Alex Kennedy. Because the trial court erred in concluding that Mealer and Kennedy had not reached a settlement agreement, we reverse. “A trial court’s order on a motion to enforce a settlement agreement based on undisputed facts is subject to de novo review.” Anaya v. Coello .1 The undisputed record shows that while Kennedy was riding his motorcycle on July 22, 2006, he was injured in a collision with a car driven by Mealer. On August 10, 2006, Mealer’s insurance carrier, Progressive Insurance Company “Progressive”, sent a letter to Kennedy’s attorney at the time, offering the policy limits of $25,000 per person in exchange for either 1 a full and final release or 2 a limited liability agreement accompanied by a waiver of subrogation from any uninsured/underinsured motorist UM carriers. The offer was also inclusive of any hospital liens, known or unknown.
On September 19, 2006, Progressive was notified that Kennedy’s attorney had been replaced by new counsel. The new counsel, rather than responding directly to Progressive’s offer of its policy limits, of which he had knowledge, sent on October 4, 2006, a letter to Progressive “demanding the policy limits to settle this case for the sum of $25,000, which Progressive has represented is the limit of their available insurance.” The demand further provided that it expired on October 13, 2006, with no other terms being specified. The new attorney refused to communicate with Progressive except in writing. On October 5, 2006, Progressive responded in writing that it had previously offered to settle for the policy limits and attached the original August 10 letter memorializing the offer. Kennedy’s attorney faxed a response the same day, stating, “I received Progressive’s faxed letter of today’s date accepting our demand for policy limits of $25,000. . . . As you are aware, the limited release is necessary to allow Kennedy to recover available underinsured motorist benefits.” Thus, having received Progressive’s letter, he attempted to couch the arrangement as Progressive having accepted his demand, rather than the plaintiff having accepted Progressive’s offer which was on the table before this attorney was in the case. As shown by Kennedy’s written offer, and as conceded by Kennedy’s attorney at oral argument, Kennedy’s attorney sought through the tactics discussed herein to put Progressive in an excess posture as to any verdict in excess of the policy limits.
