03-3343 American National Property and Casualty Company v. Nerserian

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“Thus, by its plain language, the offer was conditioned on the execution and return of the release to ANPAC. While the Nersesians did sign the release and the Nersesians did receive the two checks for the agreed upon amount, the Nersesians neither presented the checks for payment nor delivered the signed release to ANPAC. Furthermore, within one month of receiving the settlement paperwork, the Nersesians’ attorney contacted the parties and explained that the Nersesians were putting the release ‘on hold’ due to Marderos’s complications, thereby communicating an unwillingness to accept the offer at the time. Having failed to properly accept ANPAC’s offer by both signing and delivering the release, the Nersesians did not bind themselves to the settlement agreement.”

And, even though plaintiffs’ counsel had retained the settlement checks for seven months, that was not unreasonable under the circumstances and did not constitute an accord and satisfaction as a matter of law.

“Because the Nersesians fully explained the grounds for their retention of the check and release within weeks of receiving them and ANPAC acquiesced in that retention, we see no reason to hold that the Nersesians had agreed to accept an offer of accord which they had expressly rejected.”

Order reversed.

Recommended for publication in the official reports.

Dist II, Racine County, Constantine, J., Anderson, P.J.

Attorneys:

For Appellant: D. Michael Guerin, Milwaukee; Kathryn A. Keppel, Milwaukee

For Respondent: Patrick J. Anderson, Hartford