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Rabenstein v. Cannizzo5/19/2000
While driving an automobile insured by Allstate Insurance Company, Jill Cannizzo collided with an automobile driven by Jessie Rabenstein. Rabenstein sued Cannizzo for personal injury caused by the October 3, 1995 collision, and Cannizzo moved for summary judgment alleging that the claim against her was discharged by accord and satisfaction when, over a year prior to the suit, Rabenstein accepted and cashed a check from Allstate in the amount of $9,145 which contained a provision on the front of the check stating: "Final Settlement Of Any And All Claims Arising From Bodily Injury Caused By Accident On 10/03/95." The trial court granted Cannizzo's motion for summary judgment. We affirm the trial court because the evidence established, as a matter of law, that the claim was discharged by accord and satisfaction when Rabenstein cashed the check containing the final settlement provision and retained the settlement proceeds.
The delivery and acceptance of a check stating on its face that it constitutes final settlement of a claim, whether the amount of the claim is established or uncertain, amounts to an accord and satisfaction which discharges the claim. Hardigree v. McMichael, 181 Ga. App. 583 (353 SE2d 78) (1987); Wade v. Crannis, 209 Ga. App. 501, 503 (433 SE2d 669) (1993). In support of her motion for summary judgment on this basis, Cannizzo produced deposition testimony from Betty Strott, the Allstate claim representative who handled Rabenstein's claim against its insured. Although Strott had no independent memory of specific aspects of Rabenstein's claim among the thousands of claims she handled for Allstate, she identified records kept in the normal course of business and procedures she habitually followed in the routine course of handling claims, including Rabenstein's claim. Based on the records related to Rabenstein's claim and the procedures she followed in that claim, Strott testified that she and Rabenstein settled the claim for $9,145, that she explained to Rabenstein that this was a final settlement of the claim, and that she sent Rabenstein a check in that amount which contained a provision on its face stating: "Final Settlement Of Any And All Claims Arising From Bodily Injury Caused By Accident On 10/03/95." Strott also identified the cashed settlement check bearing her signature, the final settlement provision, and Rabenstein's endorsement, and testified that she had an independent memory that she had handled a claim by Rabenstein and that the claim had settled.
Rabenstein admitted in deposition testimony that she received the check from Allstate in the amount of $9,145, that she looked at the check, and that she deposited the proceeds from the check into her bank account. She testified that she did not sign a release document that was sent along with the check. When asked if she read the front of the check containing the final settlement provision, Rabenstein responded, "Well, I don't recall seeing [the settlement provision] on it, but at that point I needed the money." She further testified that, although she could not recall Strott telling her that the check was being sent to settle her claim, she could not testify that Strott did not tell her the check was to settle the claim. Accordingly, Rabenstein's deposition testimony shows that she did not deny she was told the check was to settle her claim, nor did she deny that the check contained the settlement provision - she said she could not recall.
About three months after giving her deposition testimony, Rabenstein gave a sworn affidavit in opposition to Cannizzo's motion for summary judgment. In the affidavit, Rabenstein stated that she told Strott she would accept $9,145, not as settlement of her claim, but as paym
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