FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 2, 2026
In the Court of Appeals of Georgia
A26A1382. SANDERS v. RAY.
HODGES, Judge.
This appeal turns on the recent amendments to the offer-to-settle statute,
OCGA § 9-11-67.1 (2024). After Rico Ray was injured in an automobile collision on
September 4, 2024, involving a vehicle owned by Sharon Spivey and driven by Kendra
Sanders, their attorneys exchanged settlement communications and documents.
Spivey and Sanders’ insurance carrier, Progressive Premier Insurance Company of
Illinois (“Progressive”), accepted Ray’s offer of settlement on their behalf.1 For
reasons that will be discussed below, however, Ray later filed suit against Sanders.
Sanders moved to enforce the settlement, and following a hearing, the trial court
1
Neither Spivey nor Progressive are parties to the instant appeal.
denied the motion, finding that no enforceable settlement had been reached. We
granted Sanders’ application for interlocutory review, and she filed the instant appeal.
She contends that because she provided written acceptance of the material terms of
the offer pursuant to OCGA § 9-11-67.1(b), a binding settlement existed, and the trial
court erred in finding that no settlement existed. We agree, and reverse.
We apply a de novo standard of review to a trial court’s order on
a motion to enforce a settlement agreement. Because the issues raised are
analogous to those in a motion for summary judgment, in order to
succeed on a motion to enforce a settlement agreement, a party must
show the court that the documents, affidavits, depositions and other
evidence in the record reveal that there is no evidence sufficient to create
a jury issue on at least one essential element of the appellant’s case.
Thus, we view the evidence in a light most favorable to the nonmoving
party.
Torres v. Pineda, 378 Ga. App. 321, 321-22 (925 SE2d 765) (2026). In our analysis, we
are mindful that “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). “A definite offer and complete acceptance, for
consideration, create a binding contract.” Moreno v. Strickland, 255 Ga. App. 850,
852(1) (567 SE2d 90) (2002). Further, when inquiring whether the parties entered
2
into a settlement agreement, this Court is “limited to those terms upon which the
parties themselves have mutually agreed.” Sherman v. Dickey, 322 Ga. App. 228,
231(1) (744 SE2d 408) (2013) (punctuation omitted). Finally, “the law also favors
compromise, and when parties have entered into a definite, certain, and unambiguous
agreement to settle, it should be enforced.” Greenwald v. Kersh, 275 Ga. App. 724, 726
(621 SE2d 465) (2005).
Properly viewed, the record shows that following the collision, on December
19, 2024, Ray’s counsel sent Progressive an offer of settlement pursuant to OCGA §
9-11-67.1 proposing a limited release of Ray’s personal injury claims in exchange for
payment of Progressive’s $50,000 policy limits and execution of affidavits of no other
insurance by stated deadlines.
It is undisputed that the offer included all the required material terms under
OCGA § 9-11-67.1. It also contained provisions relating to the performance of the
required terms. The offer provided that Ray’s counsel’s law firm must receive the
$50,000 payment no later than 5:00 p.m. on or before the 40th day after Progressive
received the demand. The offer also provided that on or before the 40th day,
Progressive was to provide Ray’s counsel with a statement under oath regarding
3
whether all liability and casualty insurance issued by Progressive that offered coverage
for this claim, had been disclosed, and the offer required that this statement be on a
form attached to the offer to settle. Further, the offer required Sanders and Spivey
each to provide sworn, notarized statements that no other applicable insurance
coverage was available to them. Specifically, the offer provided that the documents
and payments must be received by specified dates in order to accept the offer. The
offer characterized the performance of these acts as “material.”
We turn now to a timeline of the pertinent events. Under the offer, a written
acceptance was due by January 25, 2025. Progressive received the offer on December
22, 2024, and it timely accepted the offer, in writing, via facsimile dated January 21,
2025. Its acceptance specifically provided that Progressive “accepts the material
terms of your offer of settlement on behalf of Rico Ray as set forth in OCGA § 9-11-67.1(b) in their entirety.” By its plain language, Progressive’s facsimile did not accept
extra-statutory terms. The acceptance further averred that, “[a]s a courtesy,”
Progressive had attempted to obtain Sanders’ affidavit of no other insurance and her
signature on a limited liability release but noted that she “has not complied with our
requests to date.” Under the non-statutory terms outlined above, Progressive would
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have needed to supply all the sworn statements and the $50,000 check by the 40th day
after the receipt of the offer, that is, by January 31, 2025. On January 28, 2025,
Progressive sent the relevant documents and the check to Ray’s counsel via Federal
Express overnight delivery.
The offer specified a physical address for delivery of the written acceptance, as
well as e-mail and facsimile contact information but did not specify an address for
delivery of the payment, release, and affidavits. Instead of sending these items to the
acceptance address, Progressive sent the performance letter to a different address
listed on Ray’s counsel’s website. Tracking information shows the documents were
delivered to that address on January 29, 2025. This address, however, was just a
“virtual office” that Ray’s counsel had never visited and no longer used, although he
had not updated his website to reflect an address change. FedEx, apparently without
any involvement by Progressive, then forwarded the documents and check to Ray’s
counsel’s home address, where he found them on his front porch on February 3, 2026.
Counsel did not accept the check and documents, and returned them to Progressive
because, on January 31, 2025 — the day that the check and other documents should
have been delivered to Ray’s attorney under the settlement terms — Ray filed a motor
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vehicle negligence complaint against Sanders. Sanders then filed a motion seeking to
enforce the pre-suit settlement agreement. Ray opposed the motion, arguing that no
settlement contract existed because Sanders had failed to perform the various “acts”
required to accept the settlement offer in that the check and documents were not
timely delivered. Ray also argued that there was never a settlement because
Progressive accepted only the “material terms” of the offer “as set forth in OCGA
§ 9-11-67.1” rather than the additional terms Ray had designated as material. The trial
court ruled in Ray’s favor, finding that no settlement agreement existed because the
acceptance package was not delivered by the January 31, 2025 deadline and a
Progressive affidavit was not in the form required by the offer.
1. To offer some preliminary context, OCGA § 9-11-67.1 became effective in
July 2024,2 shortly before the September 2024 collision from which this case arises.
At the time the trial court issued its order, the newly amended OCGA § 9-11-67.1 had
never been construed.3 About two months after the trial court determined that no
2
Ga. L. 2024 at 178, § 1 (eff. July 1, 2024).
3
This Code section has something of a tortured history, summarized as follows in Gomez v. USAA Cas. Ins. Co., 378 Ga. App. 702 (926 SE2d 687) (2026):
This is yet another case in the ongoing saga of settlement agreements in
the motor-vehicle, personal-injury context here in Georgia. The story is
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settlement had been reached, and shortly after the filing of the notice of appeal, this
Court issued an opinion interpreting the 2024 amendments to OCGA § 9-11-67.1 for
the first time. See Torres, 378 Ga. App. at 321.4
Apparently in this context, as will be discussed in more detail below, Ray has
significantly changed his argument on appeal from his argument in the trial court. In
the trial court, Ray contended that the parties never reached a binding settlement
agreement. Ray’s appellee’s brief, however, accepts that a settlement was reached but
asserts that Progressive breached material terms of the settlement by not meeting the
a familiar one by now. There is a car accident. Someone is tragically
injured. The party who caused the injury has minimal insurance policy
limits. The attorney representing the injured party makes a settlement
offer to the defendant’s insurer. In making that offer, the plaintiff’s
attorney includes onerous, byzantine terms in the hope of causing a
botched acceptance. And this then opens the door for the injured party
to bring a bad-faith claim against the insurer, which allows for the
possibility of a far larger verdict for the plaintiff. Enter the General
Assembly. In 2013, it passed OCGA § 9-11-67.1—which was revised in
2021 and 2024—to address this very issue.
4
In the months after the trial court issued its order, this Court also issued several other opinions which have some relevance here, as will be discussed below, although those opinions interpret the immediately prior, 2021 version, of OCGA § 9-11-67.1.
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deadline for sending the check and the documents and by providing the signed
affidavit in a different form than that referenced in the offer.
The trial court, relying on Ray’s prior argument before it, determined that no
settlement had been reached, and Sanders’ appeal naturally arises from that
determination.
2. Sanders argues that the trial court wrongly found that no settlement
agreement had been reached. She contends that, despite the missed deadlines and
different affidavit forms, her written acceptance of the statutory material terms of the
agreement created a binding settlement agreement. We agree.
As outlined above, Progressive, on Sanders’ behalf, timely sent notice of
acceptance of Ray’s offer, but because of the problematic address, the check and
documents were not timely received. Pertinently, Ray’s offer letter provided, as to the
check delivery and affidavit forms and receipt deadlines discussed above, that these
were material terms and that “some of the material terms are conditions of acceptance
and not conditions of performance. Each of the following acts must be performed in
order to ACCEPT this offer of compromise.”
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Before beginning our analysis on the merits, we turn to the relevant portions of
OCGA § 9-11-67.1 (2024). Under the statute, “[a]ny offer to settle a tort claim for
personal injury, bodily injury, or death arising from a motor vehicle collision shall be
an offer to enter into a bilateral contract.” OCGA § 9-11-67.1(a). Further, offers to
settle under OCGA § 9-11-67.1(b)
(1) Shall contain the following material terms, which shall be the only
material terms: (A) A date by which such offer must be accepted, ...; (B)
Amount of monetary payment; (C) The party or parties the claimant or
claimants will release if such offer is accepted; (D) For any type of
release, whether the release is full or limited and an itemization of what
the claimant or claimants will provide to each releasee; (E) The claims
to be released; (F) A date by which payment shall be delivered; provided,
however, that such date shall not be less than 40 days from receipt of the
offer; and (G) A requirement that in order to settle the claim the recipient
shall provide the offeror a statement, under oath, regarding whether all
liability and casualty insurance issued by the recipient that provides coverage
or that may provide coverage for the claim at issue has been disclosed to the
offeror and a date by which such statement under oath shall be delivered, and
such date shall not be less than 40 days from receipt of the offer;
provided, however, that the requirement provided in this subparagraph
may be waived by the offeror[.]
OCGA § 9-11-67.1(b)(1) (emphasis added).
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The statute further provides that:
(c) Where any offer to settle a tort claim for personal injury, bodily injury,
or death arising from a motor vehicle collision provides any term outside
of the material terms provided in paragraph (1) of subsection (b) of this Code
section, such term shall be construed as an immaterial term that may be
mutually agreed to, in writing, by both the offeror and the recipient;
provided, however, that a variance by the recipient from such immaterial
term shall not subject the recipient to a civil action arising from an alleged
failure by the recipient to accept an offer to settle such tort claim if such
recipient otherwise complies with subsection (i) of this Code section.5
OCGA § 9-11-67.1(c) (emphasis added). The statute also states that the offer to settle
may be accepted by providing written acceptance of the material terms outlined in
subsection (b)(1) of this Code section in their entirety. OCGA § 9-11-67.1(d).
Pertinent to this appeal and to changes between the current version of the
statute and its two prior versions, OCGA § 9-11-67.1(a) (2024) provides that any offer
to settle a tort claim as outlined in the statute “shall be an offer to enter into a bilateral
contract.” (Emphasis added.) The prior versions of OCGA § 9-11-67.1 (2013) and
5
OCGA § 9-11-67.1(i), as will be discussed further below, provides that no civil action arises from a recipient’s alleged failure to settle one of the tort claims addressed in the statute so long as the recipient has timely provided the offeror with a writing accepting the material terms; a statement under oath regarding insurance coverage, if required; and payment.
10
OCGA § 9-11-67.1 (2021), by contrast, could be unilateral contracts. See Grange Mut.
Cas. Co. v. Woodard, 300 Ga. 848, 858(3) (797 SE2d 814) (2017) (finding that the 2013
version of OCGA § 9-11-67.1 allows unilateral contracts); Ga. Automobile Ins. Law,
§ 56C: 1(c) (2025-2026 ed.) (“[A]ny offer to settle made under the 2021 version of the
statute, unlike the 2024 amendment, does not constitute, by operation of law, ‘an offer
to enter into a bilateral contract.’”) (quoting OCGA § 9-11-67.1(a) (2024)). In a
unilateral contract, 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 ... [or] as a condition of acceptance.”
Woodard, 300 Ga. at 858(3). Ray’s argument in the trial court, and the trial court’s
order, essentially tracked this philosophy: That is, performance was required for
acceptance.
OCGA § 9-11-67.1(a) (2024), however, provides unequivocally for a bilateral
contract. As our Supreme Court has determined, “a bilateral contract [is] created
through the exchange of mutual promises.” Citizens & S. Nat’l Bank v. Benton, 257
Ga. 751, 752-53(1) (363 SE2d 549) (1988) (providing that an agreement for the partial
release of one property, if sales proceeds were timely paid on the secured debt, was a
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binding contract, and while one party’s failure to timely pay as agreed “may constitute
a partial breach of contract for which a right of damages may exist[,]” the lender was
not relieved of its duty to perform on its promise to sign over the mortgage because
a bilateral contract had been created). See OCGA § 13-3-42.
We turn now to Sanders’ argument. The record shows that Ray offered to settle
his claim under OCGA § 9-11-67.1 and included the material terms set out in the
statute. OCGA § 9-11-67.1(a), (b)(1). In response, Progressive accepted Ray’s offer
by specifically agreeing to all material terms as delineated in the statute and by
providing a timely written acceptance of only those material terms “in their entirety.”
OCGA § 9-11-67.1(d). Contrary to Ray’s contentions in the trial court, and to the trial
court’s order, under the plain language of the statute, the parties indeed reached a
binding settlement agreement. See Jackson Elec. Membership Corp. v. Ga. Power Co.,
257 Ga. 772, 773(1) (364 SE2d 556) (1988) (“Clearly, the parties intended to enter an
agreement: they expressed their mutual intentions to be bound, and a contract was
formed.”). Our analysis does not end here, however.
First, although the offer provided additional, non-statutory terms and
designated them as “material” terms, the plain language of OCGA § 9-11-67.1(b)(1)
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provides that the statutorily identified material terms “shall be the only material
terms[.]” (Emphasis added.) “[W]hen we construe a statute, such as OCGA §
9-11-67.1, we must presume that the General Assembly meant what it said and said
what it meant.” Gabrell v. Hancock, 378 Ga. App. 406, 410 (926 SE2d 110) (2026),
citing Deal v. Coleman, 294 Ga. 170, 172-73(1)(a) (751 SE2d 337) (2013). The offer’s
designation of various non-statutory terms as “material” does not make them
material. OCGA § 9-11-67.1(c) provides that any term outside of the identified
statutory material terms “shall be construed as an immaterial term[,]” and OCGA §
9-11-67.1(e) provides that “no party shall require another party, as a condition of
settlement, to waive or modify the application of this Code section or any provision of
this Code section.” (emphasis added).
Second, the plain language of the statute discusses what terms must be included
in the offer to settle. The inclusion of those terms, coupled with the acceptance of
those terms, is what creates a binding contract. See Gabrell, 378 Ga. App. at 410-411
(finding, under OCGA § 9-11-67.1 (2021), that when an offer included all statutory
material terms, the insurer’s “letter accepting the terms of the offer [meant] a binding
agreement was made”). The current statutory language and the fact that the statute
13
provides only for a bilateral contract does not allow the performance of those terms to
be a factor in the formation of a binding settlement agreement. See Progressive
Mountain Ins. Co. v. Butler, 364 Ga. App. 439, 443-44(2) (875 SE2d 422) (2022)
(“Progressive’s failure to tender payment of the settlement amount bears on
Progressive’s performance of the settlement agreement, not its existence or
validity.”). Rather, performance or failure to perform pursuant to the terms is the
determining factor as to whether the parties have complied with the binding
settlement or breached it.
Whether the check and sworn affidavits were delivered on time goes to the issue
of breach, not formation, of the settlement agreement, because OCGA § 9-11-67.1(b)(1)(F) provides only that offers to settle a tort claim “[s]hall contain the
following material terms ... [a] date by which payment shall be delivered; provided,
however, that such date shall not be less than 40 days from receipt of the offer[.]”
(Emphasis added.) The delivery itself is not a “term” required for contract formation;
rather, it is performance pursuant to a term in an existing settlement agreement.
Benton, 257 Ga. at 752-53(1); Butler, 364 Ga. App. at 443-44(2). Similarly, whether any
sworn affidavits were in the form sought by the offeror also goes to the issue of
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compliance, not formation, of the settlement agreement because OCGA § 9-11-67.1(b)(1)(G)’s plain language neither addresses nor requires any particular form of
affidavit. In Torres, the plaintiff argued that the trial court erred in finding the parties
had reached a binding settlement agreement, contending that State Farm failed to
accept a material term under OCGA § 9-11-67.1(b)(1)(G) because the insurer provided
a written statement under oath, when Torres’ offer had demanded an oral statement
under oath. 378 Ga. App. at 323. This Court affirmed, finding that although Torres’
offer “included a requirement that State Farm provide an oral statement under oath
[, this] does not mean that a binding agreement was not reached when State Farm did not
do so. The Code section is clear that the only material terms are those set forth in the
statute.” Id. at 324 (emphasis added and in original). “And, the plain language of the
statute makes it clear that any additional terms” — here, the form of the affidavit —
“are immaterial and variance from an immaterial term does not result in a rejection
of the offer.” Id.6 In other words, acceptance of the statutory terms creates a binding
6
OCGA § 9-11-67.1(d) (2024), and OCGA § 9-11-67.1(b)(2) (2021), contain nearly identical language in this regard, providing that “[t]he recipients of an offer to settle made under this Code section may accept the same by providing written acceptance of the material [statutory] terms ... in their entirety.” As a result, two cases decided under the 2021 version of the statute are instructive: Gomez, 378 Ga. App. 711-12(2) (determining that where a party agrees in writing only to the statutory terms,
15
settlement; performance of those terms goes to the issue of breach, not contract
formation.
As discussed in Division 1, Ray now argues, for the first time on appeal, that
although a settlement was reached, Progressive breached that agreement and, as a
result, he has unilaterally rescinded the settlement contract. Ray urges us to affirm the
trial court’s judgment as right for any reason, see City of Gainesville v. Dodd, 275 Ga.
834, 838 (573 SE2d 369) (2002), and to find that because of his rescission, no
settlement agreement now exists. Ray, however, never raised the issue of rescission
in the trial court, nor did the trial court ever rule on the matter. “[I]ssues presented
for the first time on appeal furnish nothing for us to review, for this is a court for
correction of errors of law committed by the trial court[.]” OVIP, Inc. v. Blockbuster
Textiles, 289 Ga. App. 276, 278(1) (656 SE2d 907) (2008).
Ray also contends, in the context of breach, that OCGA § 9-11-67.1(i)(1)
provides that “[t]here shall be no civil action arising from an alleged failure by the
the absence of mutual agreement to additional terms is “irrelevant to the formation of a binding contract[.]”); Gabrell, 378 Ga. App. at 409, 411 (finding a binding agreement existed even where insurer’s statement of other insurance coverage did not “mirror” the form of the offeror’s demand because the insurer’s letter had accepted all material terms and the statute’s plain language did not dictate the form of statements regarding available coverage).
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recipient to settle a tort claim for personal injury, bodily injury, or death arising from
a motor vehicle collision, where the recipient provides the offeror on or before the dates
specified in the offer:
(A) A writing that purports to accept in their entirety the material terms
of the offer, with the exception of the amount of payment;
(B) A statement by the recipient under oath regarding insurance
coverage provided by the recipient, if required as a material term; and
(C) Payment[.] ...
(emphasis added).
It is undisputed that neither the $50,000 check nor the affidavits were timely
received under the terms of the settlement. As Ray recognizes, this goes to the issue
of breach. See Benton, 257 Ga. at 752-53(1) (finding that where a bilateral contract
exists, one party’s failure to timely pay pursuant to the contract may constitute a
partial breach). As noted above, the issue of breach was neither raised nor ruled upon
in the trial court, so we do not address it further. OVIP, 289 Ga. App. at 278(1).
The only issue before us is whether a binding, enforceable settlement agreement
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was reached. We find that it was, and the trial court erred in determining otherwise.
Judgment reversed. Barnes, P. J., and Markle, J., concur.
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