Consider this common scenario: A claimant demands policy limits to be paid in twenty days. Insurance company timely complies but requires a general release to be signed. And money held in escrow. And a hold harmless. And a confidentiality agreement. Do any of these terms result in a counter-offer?

In a short, developing series of cases, the courts – primarily the Fourth District – is trying to make it out like the answers are more obvious than they appear. While the courts are claiming that acceptance must be a “mirror image” of the offer, these cases indicate greater wiggle room – and the potential for confusion. In other words, until others develop the case law for you, wary lawyers may want to be careful with recommendations and opinions about which of these will work, or not, in settlement discussions.
Citations below are cited in Dwight Grant v. Matthew Lyons (Warner, Stevenson, Damoorgian).

GENERAL RELEASE: In Erhardt v. Duff, 729 So. 2d 529 (Fla. 4th DCA 1999), the plaintiff demanded policy limits and the defendant’s insurance company timely agreed to tender and wrote, “upon your acceptance, we are prepared to forward our settlement draft and releases.” The court held this was not a counter-offer since it met the (1) amount and (2) time limit requirements. Signing a release was “implicit as part of the tender, and not an additional element of the agreement… it would have made no sense for [the insurer] to tender its policy limits if there remained a possibility that it could still be liable for further claims […] arising from the same incident.”

The Third DCA tends to agree with Erhardt, holding that “usual settlement documents” are OK to “protect the offeror from unforeseen developments or creative maneuvering by the other party.” “A document releasing an insurance company an insurance company for claims arising from the same incident for which the full policy limits were tendered, particularly where the injured party is permitted to modify such a release, is the kind of usual settlement documents implicit in any settlement agreement.”

NOT THE “USUAL TERMS”: In this new Fourth District case, the insurance company responded to a time-limit demand with a requirement to hold the funds in escrow, resolve liens, and insert various terms into the release. The Panel held this to be a counter-offer. It concluded the following are not the “usual terms” of settlement and, for the rest of us, would likely be a counter-offer: (1) requiring the check to be held in escrow until an unaltered release is signed and returned, (2) release of all persons liable, not just the defendant and insurance company, (3) warranty the medical bills were paid and none outstanding, and (4) non-disclosure / confidentiality clause.