Peters v. Dealer Supply Co.

Banke, Judge.

This appeal is from a grant of summary judgment for defendants in a negligence action arising out of a motor vehicle collision. The summary judgment was granted based on an alleged settlement agreement between the parties.

Plaintiffs, husband and wife, sought judgment in the amount of $60,000. After answer and discovery, an agent of defendant’s insurer offered during a phone conversation with plaintiffs’ attorney to settle the case for $4,250. Plaintiffs’ attorney communicated this offer to plaintiffs; however, the latter understood it to be for $42,500 and accepted it on that basis. Plaintiffs’ attorney informed the insurers’ agent that plaintiffs accepted the offer for $4,250. Later, when plaintiffs came to the office of their attorney to sign release forms and complete the settlement, they discovered the misunderstanding and immediately informed their attorney that they would not accept that amount. This fact was communicated to the insurer’s agent, and the release forms were never signed. Held:

The trial court’s ruling that there remains no issue of fact is in error. The accord and satisfaction relied upon by the defendants is denied by the plaintiffs and the evidence does not show conclusively that one was reached. This presents a factual question (see Cross v. Cook, 147 Ga. App. 695 (250 SE2d 28) (1978)) and precludes summary judgment.

Judgment reversed.

McMurray, P. J., and Underwood, J., concur. Rehearing denied July 12, 1979 Donna J. Salem, J. Edward Wall, for appellants. Lokey & Bowden, Glenn Frick, Gary Hill, for appellees.