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Petersen v. Genesis Learning Centers12/13/2005
ch would further reduce the remaining money available for settlement. After that telephone conversation, Plaintiffs' counsel faxed Crider a letter confirming the request to keep the offer open:
Tom and I ask that you keep your offer open for 48 hours, to give us an opportunity to confer with our clients and - in accordance with our telephone conversation - draft some type of indemnity language that is acceptable to both.
Please fax to my office your agreement to keep the offer open for 48 hours, as well as your suggestions as to indemnity language.
Later that same day, Crider sent a letter in response, which stated:
I am in receipt of your request to keep our offer open for 48 hours to give you and Tom an opportunity to confer with your clients. I have spoken with Dr. Call, Michael Hullett and our insurance adjuster. Although they are reluctant, based upon the results of the mock trial last night, they are willing to keep the offer open for 48 hours from the time that we made it. This means that the offer will expire at 5:00 p.m. on Wednesday, May 12.
The letter also set out possible indemnity language to include in the settlement agreement, with the proviso that the indemnity language had not yet been presented to her clients. Later that same day, Crider faxed another letter to Plaintiffs' counsel stating that TII would keep its offer open until Thursday, May 13, at 3:00 p.m.
On the afternoon of Wednesday, May 12, 2004, Plaintiffs' counsel called Crider on the telephone and informed her that they would accept TII's offer. Crider would later say that she understood this to mean that Plaintiffs accepted the offer of "remaining limits." In response, Crider told Plaintiffs' counsel that she would "stop the clock," so that the remaining policy limits could be preserved.
Later that day, Plaintiffs' counsel sent Crider a letter accepting "your offer of $575,000.00." Crider immediately faxed a letter to Plaintiffs' counsel setting out indemnification and assignment language to which TII would agree, and also informing Plaintiffs' counsel that the estimated remaining limits on the insurance policy were much less than $575,000. The letter stated:
. . . I have been very clear in all correspondence that we will pay whatever the remaining limits are at the time we finalize the agreement. I have expert bills outstanding, the mock trial bill outstanding (approximately $45,000), and all of my May time. It is a rough estimate, but I believe there is approximately $450,000 to $475,000 remaining. After I get your go ahead, I will draft a release and settlement agreement.
On May 13, 2004, Crider's co-counsel, John Hicks ("Hicks"), sent an e-mail to Plaintiffs' counsel stating, " t is apparent to me that we offered the balance of the limits of the policy covering , whatever that balance amounted to, upon conclusion of the settlement. . . . The two of you, on the other hand, interpreted [Crider's] letter of May 10, 2004 to be an offer of $575,000." Hicks told Plaintiffs' counsel that the remaining limits on the policy were $441,000, but that he nevertheless agreed to pay the Plaintiffs a minimum of $450,000 if the offer were accepted by 4:00 p.m. that day. Plaintiffs did not accept the offer.
Instead, on that same day, May 13, 2004, Plaintiffs filed this motion to enforce the settlement agreement in the amount of $575,000. The facts set out in the complaint are largely undisputed and are documented in the writings quoted above, which were attached as exhibits to the pleadings. Plaintiffs claimed that the plain and ordinary meaning of the language used in the parties' correspondence showed that the parti
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