In late 2009, the Fourth District held in Grant v. Lyons that there were certain "usual terms" to a general release and the inclusion -- or suggestion of inclusion -- may not be a counter offer.

The First District faced a similar issue in Roger J. Gonzalez v. Dawn Elizabeth Claywell and ended up with a split panel (Padovano, Wolf, and Thomas (dissenting)).

In Gonzalez, Plaintiff's counsel sent to Defendant's insurer a $26k settlement demand with the instruction that settlement would not include indemnification. The insurer agreed and sent a proposed release... which included indemnification language. The Plaintiff rejected it and the insurer reported that they included that term in error and sent back a proposed release which did not have the offending language. The Plaintiff refused.

The majority held that Plaintiff's offer was specific, the insurer's response was a counter-offer, and there was no agreement. The majority noted that some cases may suggest that including an insurer on the release is commonplace however none of those cases involved offers where such terms were expressly rejected.

The dissent suggested that the insertion of a meaningless term had no legal consequence and further hinted that it was part of the "usual settlement documents."