This appeal in a personal injury case arising from an automobile accident is before this Court on certified questions from the United States Court of Appeals for the Eleventh Circuit. At issue is the proper interpretation of OCGA § 9-11-67.1, which governs the formation of settlement agreements pursuant to a pre-suit “offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants” (a “Pre-Suit Offer”). OCGA § 9-11-67.1(a). We conclude that OCGA § 9-11-67.1 does not prohibit a claimant from conditioning acceptance of a Pre-Suit Offer upon the performance of some act, including a timely payment. We leave it to the Eleventh Circuit to apply this principle to the facts of this case.
1. Factual and, procedural background
The relevant facts are largely undisputed. On March 20, 2014, Thomas Dempsey was driving his car in Georgia when he collided with a pickup truck operated by Boris Woodard in which Woodard’s adult daughter, Anna Woodard, was a passenger. Both Woodards were injured, and Anna died of her injuries. Dempsey’s vehicle was insured under a personal automobile liability policy issued by Grange Mutual Casualty Company (“Grange”) with liability limits of $50,000 per person, $100,000 per accident. Grange assigned claims representative Heather Conn to handle Boris Woodard’s personal injury claim, as well as Boris and Susan Woodard’s wrongful death claim for Anna. The Woodards selected T. Shane Peagler of the Law Offices of Michael Lawson Neff, PC., to represent them in the matter.
On June 19, 2014, Peagler sent Conn a letter making a settlement offer, under the heading, “Offer to Settle Tort Claims Made Pursuant to OCGA § 9-11-67.1 and OCGA § 51-12-14.” In his letter, Peagler said that the Woodards offered a limited release of their claims against the Dempseys and Grange in exchange for the $ 100,000 policy limit. The letter contained a list of demands under the boldface heading, “Note: The following items must be noted and fully and strictly complied with in order to accept this offer[.]” Among those demands were the following:
• “Pursuant to O.C.G.A. § 9-11-67.1, you have 30 days from your receipt of this offer to accept it.”
• “Your acceptance of this offer must be in writing to me at the above address shown in my letterhead. If we do not actuallyPage 849receive a timely acceptance, this offer will be deemed rejected, and we will file a lawsuit against your insureds to recover the total amount of losses caused by your insureds, instead of the limited amount afforded by your coverage and other coverage that may be available.”
• The Dempseys and a Grange officer were required to provide affidavits swearing that the insurance coverage from Grange was the only coverage available and that no excess or umbrella policies were available. “All three affidavits must be received in my office within ten (10) days after your written acceptance of this offer to settle. Timely compliance with this paragraph is an essential element of acceptance.”
• “Ifpayment is not tendered in cash pursuant to OCGA § 9-11-67.1 (f)(1), payment in the amount of $50,000 must be made payable to ‘Boris and Susan Woodard and Michael L. Neff, their attorney for the wrongful death of their daughter, Anna Woodard,’ within ten (10) days after your written acceptance of this offer to settle. Timely payment is an essential element of acceptance.”
• “Ifpayment is not tendered in cash pursuant to OCGA § 9-11-67.1 (f)(1), payment in the amount of $50,000 must be made payable to ‘Boris Woodard and Michael L. Neff, his attorney’ within ten (10) days after your written acceptance of this offer to settle. Timely payment is an essential element of acceptance.”
Peagler agreed that Grange had until July 23, 2014, to accept the offer. In a letter dated July 22, 2014, Conn told Peagler, “We accept your demand as outlined in your correspondence of June 23, 2014.” The letter stated that the requested affidavits and checks would follow under separate cover within ten days. Conn e-mailed Peagler the affidavits on July 29, stating that the checks were being issued that day.
Conn and Neff spoke on August 12, 2014, and Neff informed Conn that the checks had not arrived. Neff told Conn this meant the parties had not reached a binding settlement agreement. Conn offered to reissue new checks for overnight delivery, but Neff was unwilling to accept them. Conn nonetheless wrote to Neff’s office after their conversation, including settlement checks with the correspondence. She apologized, explaining that the original checks were issued on July 29 but there was an error in addressing them to Neff’s office. On August 14, Neff sent Conn a letter returning the checks and stating that the Woodards rejected Grange’s untimely response to the settlement offer and would be filing a lawsuit.
Grange filed a lawsuit against the Woodards in the United States District Court for the Northern District of Georgia. The one-count
(a) Prior to the filing of a civil action, any offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants shall be in writing and contain the following material terms:
(1) The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of the offer;
(2) Amount of monetary payment;
(3) The party or parties the claimant or claimants will release if such offer is accepted;
(4) The type of release, if any, the claimant or claimants will provide to each releasee; and
(5) The claims to be released.
(b) The recipients of an offer to settle made under this Code section may accept the same by providing written acceptance of the material terms outlined in subsection (a) of this Code section in their entirety.
(c) Nothing in this Code section is intended to prohibit parties from reaching a settlement agreement in a manner and under terms otherwise agreeable to the parties.
(d) Upon receipt of an offer to settle set forth in subsection (a) of this Code section, the recipients shall have the right to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts. An attempt to seek reasonable clarification shall not be deemed a counteroffer.
(g) Nothing in this Code section shall prohibit a party making an offer to settle from requiring payment within aPage 851specified period; provided, however, that such period shall be not less than ten days after the written acceptance of the offer to settle.
The district court agreed with the Woodards that the statute does not prohibit a party from requiring payment as a condition of acceptance, and found that Grange did not satisfy the Woodards’ terms of acceptance through written acceptance alone. The district court also rejected Grange’s argument that even if payment was an essential element of acceptance, the insurer had satisfied that provision when it issued settlement checks payable to the Woodards in a timely manner. The district court denied Grange’s motion for summary judgment and granted summary judgment to the Woodards.
Grange appealed to the Eleventh Circuit, which concluded that OCGA § 9-11-67.1 was “arguably ambiguous with respect to its requirements.” Grange Mut. Cas. Co. v. Woodard, 826 F3d 1289, 1300 (11th Cir. 2016). On the one hand, the court observed, the statute appears to contemplate that an offeree will accept an offer in writing, such that payment would be a term of contract performance, not contract formation. Id. On the other hand, the court continued, subsection (c) arguably permits the parties to reach an agreement as they see fit, including “by contracting around” the procedure set forth in subsections (a) and (b). Id. Noting there were no published state or federal court decisions interpreting OCGA § 9-11-67.1, id. at 1299, the Eleventh Circuit certified the following questions to this Court:
(1) Under Georgia law and the facts of this case, did the parties enter a binding settlement agreement when the insurer Grange accepted the Woodards’ offer in writing?
(2) Under Georgia law, does OCGA § 9-11-67.1 permit unilateral contracts whereby offerors may demand acceptance in the form of performance before there is a binding, enforceable settlement contract?
(3) Under Georgia law and the facts of this case, did OCGA § 9-11-67.1 permit the Woodards to demand timely payment as a condition of accepting their offer?
(4) Under Georgia law and the facts of this case, if there was a binding settlement agreement, did the insurer Grange breach that agreement as to payment, and what is the remedy under Georgia law? Id. at 1300-1301.
a. Background principles of law
The Eleventh Circuit’s certified questions call on us to interpret key provisions of OCGA § 9-11-67.1.1
When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. . . . [I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.
Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). Additionally, “[a]ll statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law[.]” Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700-01 (10 SE2d 375) (1940) (citation and punctuation omitted). This principle is critical to our understanding of the statute.
In enacting OCGA § 9-11-67. l,theGeneral Assembly actedagainst the backdrop of a large body of law on contract formation generally and settlement formation specifically As part of that existing law, “settlement agreements must meet the same requirements of formation and enforceability as other contracts.” Torres v. Elkin, 317 Ga. App. 135, 141 (2) (730 SE2d 518) (2012). There is no enforceable settlement between parties absent mutual agreement between them. Id. To that end,
an answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort. Apurported acceptance of a plaintiff’s settlement offer which imposes conditions will be construed as a counteroffer to the offer to settle for the policy limits.
Similarly, it is also a fundamental principle of contract law that “an offeror is the master of his or her offer, and free to set the terms thereof.” Atkinson v. Cook, 271 Ga. 57, 58 (518 SE2d 413) (1999) (citing Restatement (Second) of Contracts, § 59, cmt. (a) (1981)). This principle also finds its origin in the common law. See Packgen v. Berry Plastics Corp., 973 FSupp.2d 48, 62 (D. Me. 2013) (referring to “(t)he common law idea that the offeror is the master of the offer”) (quoting Corbin on Contracts § 3.8 (2013)). An offer ordinarily may contemplate acceptance by the doing of some act, as opposed to a mere oral or written statement of acceptance of certain terms. See Frickey, 280 Ga. at 575 (insurer’s response to plaintiff’s offer to settle required an additional act necessary to acceptance of the plaintiff’s offer — the resolution of all actual and potential liens of health care providers — and thus constituted a counteroffer); Douglas v. Austin-Western Road Mach. Co., 180 Ga. 29, 32 (1) (177 SE 912) (1934) (“An offer may contemplate acceptance by the doing of an act, and if the act be performed while the offer is in life, a binding contract is created, so far as the question of mutuality is concerned.”); Kitchens v. Ezell, 315 Ga. App. 444, 447-49 (1) (a) (726 SE2d 461) (2012) (rejecting defendants’ argument that presentation of certain bodily injury release was a condition of performance, not acceptance). The concept of a “unilateral contract,” whereby an offer calls for acceptance by an act rather than by communication, also has common law origins. See Doss v. Epic Healthcare Mgmt. Co., 901 SW2d 216, 220 (Mo. Ct. App. 1995); see also Friedrich Kessler et al., Contracts: Cases and Materials 370-71 (3ded. 1986) (quoting Sixth Interim Report of the EnglishLaw Revision Committee 23 (1937)).2
“The common-law rules are still of force and effect in this State, except where they have been changed by express statutory enactment or by necessary implication.” Humphreys v. State, 287 Ga. 63, 70 (4) (694 SE2d 316) (2010) (citation and punctuation omitted). Considered in this light, we conclude that the plain language of OCGA § 9-11-67.1 does not expressly or by necessary implication contravene these common law principles. Specifically, we cannot conclude that the statute displaced these common law principles by precluding Pre-Suit Offers from requiring terms in addition to those set forth in subsection (a), including requiring prompt payment as a condition of acceptance. Rather, subsection (a) merely sets forth five terms that, at a minimum, must be included in every Pre-Suit Offer. This is so for several reasons.
First, subsection (a) provides that a Pre-Suit Offer “shall . . . contain the following [five] material terms.” Although “contain” may sometimes be a term of exclusivity, it also has non-exclusive meanings. See, e.g., Webster’s II New College Dictionary, 249 (3d ed. 2005) (defining “contain” variously as “[t]o have within” and “[t]o have as component parts”). Although these different definitions create some ambiguity in the abstract, in considering how a word is used in a statute, “we must view the statutory text in the context in which it appears[.]” Deal, 294 Ga. at 172 (1) (a) (citation omitted). And the Georgia Code contains3 many examples of statutes that use the word “contain” in a context that clearly demonstrates that term is being used in a non-exclusive sense. See, e.g., OCGA § 12-5-27.1 (declaring unlawful the retail sale or use of “any cleaning agent containing phosphorus,” subject to exceptions such as products that “[c]ontain phosphorus in an amount not exceeding 0.5 percent by weight which is incidental to manufacturing”); OCGA § 9-3-30.1 (reviving or extending statute of limitations for certain actions against manufacturers and suppliers of “asbestos or material containing asbestos”); OCGA § 26-2-378 (requiring restaurants’ disclosure of “meat products” that
Subsection (g) bolsters this reading. It provides, “Nothing in this Code section shall prohibit a party making an offer to settle from requiring payment within a specified period; provided, however, that such period shall be not less than ten days after the written acceptance of the offer to settle.” This shows that prompt payment may be a term of settlement in a Pre-Suit Offer, as long as the offeror gives the recipient of the offer at least ten days from the time of written acceptance to make the payment. And, because prompt payment is not one of the terms listed in subsection (a), subsection (g) demonstrates that, as a more general matter, a Pre-Suit Offer may include terms other than those listed in subsection (a).
Additionally, subsection (c) provides, “Nothing in this Code section is intended to prohibit parties from reaching a settlement agreement in a manner and under terms otherwise agreeable to the parties.” Given the mandatory language of subsection (a) specifying terms that “shall” be included in a Pre-Suit Offer, the most natural reading of this provision is that the statute does not preclude a Pre-Suit Offer from requiring acceptance of terms in addition to those set forth in subsection (a). And the use of the word “manner” in subsection (c) indicates that not only are additional “terms” permissible, but a claimant may ask the recipient of a Pre-Suit Offer to do something to accept the offer beyond stating the recipient’s acceptance in writing.
Emphasizing the language of subsection (b), Grange argues that the statute plainly provides that if a Pre-Suit Offer contains the five terms listed in subsection (a), and those five terms are accepted unequivocally, without alteration, and in writing, then a settlement is created (at least where the demand is made pursuant to the statute explicitly). Subsection (b) provides that a recipient of “an offer to settle made under this Code section may accept the same by providing written acceptance of the material terms outlined in subsection (a) of this Code section in their entirety.” We agree that this language
The statute, including subsection (b), does not contravene those principles by necessary implication, either. Grange argues that to allow one making a Pre-Suit Offer to demand terms other than those set forth in subsection (a) or to require means of acceptance in addition to written acceptance would render the statute meaningless, particularly robbing subsections (a) and (b) of any force or effect. It is true that “a legislative body should always be presumed to mean something by the passage of an act, and an act should not be so construed as to render it absolutely meaningless[.]” Scott v. Mayor & Council of Mt. Airy, 186 Ga. 652, 653-54 (2) (198 SE 693) (1938) (citations and punctuation omitted). But our interpretation does not leave the statute without meaning.
In understanding the work that OCGA § 9-11-67.1 performs, it is helpful to recall the legal environment in which it was enacted. Our 1992 decision on an insurer’s duty to its insured when faced with a settlement demand, Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274) (1992),4 spawned much litigation over, among other things, what constitutes an offer to which an insurer must
3. Response to certified questions
For the foregoing reasons, we answer Question (2) in the affirmative. Yes, OCGA § 9-11-67.1 permits “unilateral” contracts whereby Pre-Suit Offers may demand acceptance in the form of performance (in addition to the statutorily mandated written acceptance) before there is a binding enforceable settlement contract. And, with respect to the general issue of law behind Question (3) (although we decline to consider it in the context of the facts of this case), we conclude that OCGA § 9-11-67.1 does not preclude a Pre-Suit Offer from demanding timely payment as a condition of acceptance. However, we respectfully decline to answer the Eleventh Circuit’s questions to the extent that they call us to decide the ultimate issues in the case, i.e., Question (1), which asks whether the parties entered into a binding settlement agreement, and Question (4), which asks about the consequences if the parties did reach an agreement. See PNC Bank, Nat.
Certified questions answered in part.
1.
In addition to the parties’ briefs and presentations at oral argument, the Court was assisted in its task by helpful amicus briefs from the Georgia Defense Lawyers Association, which filed a brief with the Eleventh Circuit in this case, and the Georgia Trial Lawyers Association.
2.
Although Grange cites Craddock v. Greenhut Constr. Co., 423 F2d 111, 114 (5th Cir. 1970) for the proposition that unilateral contracts are disfavored, that is not to say that they are disallowed. In Craddock, the Fifth Circuit found that the trial court erred in interpreting a contractor’s request for famishment of a performance bond as defining the exclusive means for accepting an offer, as opposed to establishing a condition subsequent modifying the contractor’s
3.
Yet another example of “contain” being used non-exclusively.
4.
Although this case does not call on us to consider whether Grange acted in bad faith, Georgia case law on insurers’ duties to their insured, specifically our decision in Holt, looms in the background. Therein we held that a trial court properly put to a jury the question of an insurer’s bad faith where the insurer refused to settle a plaintiff’s claim for policy limits within the time frame set by plaintiff’s counsel where liability was clear and the plaintiff’s medical bills and lost wages exceeded the policy limits. Holt, 262 Ga. at 269 (1). Regarding the boundaries of an insurance company’s duty to settle, we said that “[a]n insurance company does not act in bad faith solely because it fails to accept a settlement offer within the deadline set by the injured person’s attorney [,] but we rejected the insurer’s argument that an insurer has no duty to its
5.
See Baker v. Huff, 323 Ga. App. 357, 365 (1) (a) (747 SE2d 1) (2013) (letter offering to accept policy limits for pain and suffering damages only was not an offer to fully settle a claim within policy limits to which insurer had a duty to respond).
6.
See McReynolds v. Krebs, 290 Ga. 850, 853-54 (2) (725 SE2d 584) (2012) (invitation to discuss how liens will be resolved as part of the settlement was counteroffer); Torres, 317 Ga. App. at 142-43 (2) (insurer’s emphasis on its “trust that [plaintiff’s counsel’s] office will satisfy any liens arising out of this matter” made purported acceptance of settlement demand a counteroffer).
7.
See Holt, 262 Ga. at 269 (1) (“Nothing in this decision is intended to lay down a rule of law that would mean that a plaintiff’s attorney under similar circumstances could ‘set up’ an insurer for an excess judgment merely by offering to settle within the policy limits and by imposing an unreasonably short time within which the offer would remain open.”) (citation omitted); Southern Gen. Ins. Co. v. Wellstar Health Sys., Inc., 315 Ga.App. 26, 31 (1) (726 SE2d 488) (2012) (questioning whether demand was sufficient to invoke duty to respond under Holt given its five-day time limit and a lack of documentation to show that special damages exceeded policy limits); Whiteside v. Infinity Cas. Ins. Co., No. 4:07-CV-87, 2008 U.S. Dist. LEXIS 60512, *38-39, 2008 WL 3456508, *12 (M.D. Ga. Aug. 8, 2008) (denying both parties’ motions for summary judgment as to claim that insurer acted in bad faith in failing to respond to demand letter within six-day time limit, with deadline falling on a national holiday, given that the demand letter was not plaintiff’s counsel’s only effort to settle the matter).
8.
The dissent suggests that our reading of the statute is wrong because it undermines the General Assembly’s goal in passing OCGA § 9-11-67.1 —that is, to reduce bad faith claims. As explained above, the statute indeed limits claimants’ ability to present settlement offers with
9.
Grange also suggested that an insurer’s response to such an offer could not be the basis for a bad faith claim. We express no opinion here as to the implications for bad faith claims our construction of the statute may have.