Thomas v. Michigan Mutual Insurance

Per Curiam.

Plaintiff was employed as an unskilled worker by defendant’s insured, Rooks Transit Lines, Inc. His job was described as "dock work, unloading freight”. On March 17, 1981, plaintiff was injured while working. He was able to work no more than two hours on the following day. He was sent to see a physician who took x-rays of his back and informed plaintiff that there was a "pulled strain in the back, low back area”, through an unrelated decision by the employer, all of the employer’s workers were permanently laid off on March 27, 1981. Plaintiff continued to suffer back pain and neck stiffness thereafter.

On November 9, 1981, plaintiff filed to collect no-fault insurance benefits from defendant, the insurer of Rooks. This claim was brought pursuant to MCL 500.3107(b); MSA 24.13107(b). On December 3, 1981, defendant’s adjuster, one Bruce Probst, contacted plaintiff’s counsel. Probst offered to settle the claim for $664. Counsel informed the plaintiff of the offer to settle and plaintiff told counsel to accept the settlement. On December 29, 1981, counsel contacted defendant’s adjuster and told him that plaintiff agreed to accept the settlement. Defendant’s adjuster told plaintiff’s counsel to have plaintiff sign a voluntary dismissal and mail it to his attention, whereupon he would issue a check for the agreed-upon amount. On January 27, 1981, plaintiff’s counsel sent a letter to defendant which reads, in part:

"Please be advised that my client has contacted me and indicated that he has had a change of heart with regard to accepting your settlement offer on his no-fault claim. As such, please treat this letter as a revocation of our acceptance of your previous offer.”

In April of 1983 defendant obtained summary judgment granting specific performance of the settlement agreement. This motion was granted on April 15,1983, when the court ruled:

"The Court: I am going to find that there was acceptance. He simply can’t 'change his mind’. Therefore, the motion for summary judgment is granted. Thank you both.”

Plaintiff appeals from the grant of summary judgment, raising three issues.

The first issue raised on appeal is whether there was an enforceable contract between the plaintiff and defendant. Our review of the record reveals that acceptance did occur.

In the case at bar, defendant offered to settle the suit by paying $664. Plaintiff accepted that offer. In consideration for the $664, plaintiff was to sign a dismissal. Plaintiff later attempted to revoke his acceptance. Plaintiff provides no explanation except that when he accepted he needed the money and later he did not need it quite so badly. No fraud, duress or misrepresentation by defendant are alleged. We hold that plaintiff’s acceptance was absolute and unconditional.

Reasonable persons could not dispute that acceptance occurred in the case at bar. Giving the benefit of every reasonable doubt to plaintiff, the vast preponderance of the evidence supports defendant’s position. Plaintiff’s letter, purporting to revoke acceptance, as well as plaintiff’s explanation that he accepted the offer because he needed money at the time the offer was made, leads to the inescapable conclusion that plaintiff intended to accept defendant’s offer and only later had a "change of heart”. Moreover, plaintiff’s objective behavior, telling his attorney to contact defendant to accept the offered $664, leads us to the conclusion that an acceptance did occur. Banque de Depots v National Bank of Detroit, 491 F2d 753 (CA 6, 1974). We hold that the trial court properly granted summary judgment to defendant. Pauley v Hall, 124 Mich App 255, 262; 335 NW2d 197 (1983); Miller v Foster, 122 Mich App 244, 248; 332 NW2d 454 (1982).

Secondly, plaintiff contends that, even if a binding contractual obligation did exist, plaintiff retains the option of breaching the contract up until the time it is entered upon the court record. This claim is without merit. See Ortiz v Travelers Ins Co, 2 Mich App 548; 140 NW2d 791 (1966).

Finally, plaintiff claims the trial court committed error in granting defendant specific performance. This claim is without merit. Defendant correctly analyzes the statutory provision cited by plaintiff, MCL 500.3148(2); MSA 28.13148(2), and demonstrates that plaintiff’s reliance on same is misplaced. See 15A Ám Jur 2d, Compromise and Settlement, §§ 35-37, pp 808-811. See also Gregory v Hamilton, 77 Cal App 3d 213; 142 Cal Rptr 563 (1978); Greyhound Lines, Inc v Superior Court for City & County of San Francisco, 98 Cal App 3d 604; 159 Cal Rptr 657 (1979); Anno: 94 ALR2d 504. Cf. Ortiz, supra.

Affirmed.