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Voice of Experience

Voice of Experience: September 2024

Adventures in the Law: The Gotcha Theory of Justice

Norm Tabler

Summary

  • An overemphasis on procedural and technical matters is known as the Sporting Theory of Justice.
  • Reading the fine print can help or hinder your legal case.
Adventures in the Law: The Gotcha Theory of Justice
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Over a century ago, law professor Roscoe Pound spoke out against what he called the sporting theory of justice: an overemphasis on procedural and technical matters at the expense of substance and purpose. Writing today, he might have called it the gotcha theory of justice.

A recent Georgia case provides an example of the gotcha theory in action. After William’s pickup truck struck and killed Theodore. An attorney for Theodore’s daughters sent William’s insurer an April 13 letter offering to settle the matter for $50,000, provided that the insurer accept the offer within 31 days, draft a limited release, and provide a $50,000 draft 41 days after receiving the offer. The offer letter noted that acceptance must exactly comply with the terms of the offer.

On April 26, the insurer’s attorney sent a letter to the daughters’ attorney stating the insurer’s acceptance of the offer and including a check for $50,000 and a Limited Liability Release.

Case settled, right? Wrong! On May 25, a different attorney for the daughters wrote to the insurer, returning the check and stating that the insurer had “failed to accept the offer” and that suit would be filed.

On January 18, the daughters filed a suit. When the insurer moved to enforce the $50,000 settlement, the daughters filed what might be described as a gotcha response, enumerating the myriad ways the insurer’s response to the offer had amounted to a rejection:

  1. The back of the check was stamped “must be endorsed by all payees.”
  2. The payee line on the check omitted some periods and commas.
  3. The check included the claim number, named insured, and date of loss.
  4. Payment was received on the eighth, rather than the 41st day, after receipt of the offer.
  5. The release said, “do hereby release” rather than “to release.”
  6. One signature line included an extra comma.
  7. The acknowledgment portion of the release contained an errant comma.
  8. The release had a line for insertion of the date, which the offer didn’t authorize.

The insurer countered that its acceptance met all material requirements of the offer and that any deviations were immaterial and inconsequential.

The trial court found in favor of the daughters, noting that the offer stated that any deviation from its terms—including the addition of new terms--would constitute a rejection. The court cited five ways the insurer’s response to the offer varied from the offer: numbers one through five above and “failing to deliver a release identical in language to the offer.”

On appeal, the Georgia Court of Appeals affirmed the trial court’s denial of the insurer’s motion to enforce the settlement:

“When, like here, the recipient of a pre-suit offer fails to perform the act required to accept the offer, then the parties do not have a meeting of the minds” [citing Patrick, 370 Ga. App, at 577]. Because the settlement check required an additional condition/restriction, the parties did not have a meeting of the minds. Accordingly, the trial court correctly ruled that there was no formation of a settlement agreement, and we affirm its denial of the motion to enforce the settlement.

One lesson: If you have a Georgia contract stating that payment is due on the 30th of the month, don’t breach it by paying on the 29th

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