Michigan Court of Appeals; Docket #360135; Unpublished
Judges Cavanagh, Boonstra, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Accord and Satisfaction
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Erica Fisher’s automobile negligence action against Defendants Chakira Lekeish Calcote and Mark Calcote. After Fisher was rear-ended by Chakira Calcote, the Calcotes’ automobile insurer, Progressive, called Fisher to purportedly negotiate a settlement of any bodily injury claims Fisher might have arising out of the accident. After the call, Progressive mailed Fisher a $1,500 check—which Fisher later cashed—accompanied by a document titled, “Advice of Payment[,]” which stated that the $1,500 payment constituted a full and final settlement of Fisher’s claims against the Calcotes. Given the language in the “Advice of Payment” document, the Court of Appeals held that the $1,500 payment constituted an accord and satisfaction of Fisher’s bodily injury liability claim(s) against the Calcotes, thereby barring Fisher from proceeding with the automobile negligence action.
In February of 2018, Erica Fisher was stopped at a red light when Chakira Lekeish Calcote (driving a vehicle owned by Mark Calcote) rear-ended her. Approximately three weeks after the crash, Doug Jones, a representative for Progressive, the Calcotes’ insurer, called Fisher to—according to his later testimony—negotiate a settlement of any bodily injury liability claims she might have against the Calcotes. Fisher disputed Jones’s contention regarding the subject of the call, but regardless, Progressive thereafter mailed a $1,500 check to Fisher. The check itself did not contain any language to indicate that it was a full and final settlement of Fisher’s claims, but an accompanying document titled “Advice of Payment” did: that document contained Fisher’s name and address, the date of loss, Fisher’s claim number, and the phrase, “Full and Final Settlement of all Bodily Injury Claims Individually and Jointly.” In March of 2018, Fisher cashed the check and deposited the funds in her bank account, but then almost three years later—in February of 2021—Fisher filed an auto negligence action against the Calcotes. The Calcotes moved for summary disposition on the basis that the $1,500 payment constituted an accord and satisfaction of Fisher’s claims, and the trial court ultimately agreed, granting summary disposition in their favor.
The Court of Appeals affirmed the trial court’s summary disposition order, holding that—given the language in the “Advice of Payment” document—the $1,500 payment constituted an accord and satisfaction of Fisher’s claims against the Calcotes. The Court observed that the elements of an accord and satisfaction are set forth in MCL 440.3311, which provides, in relevant part:
‘(1) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply.
(2) Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.’
The Court found that the first element was satisfied because Progressive tendered a check which the accompanying “Advice of Payment” document made clear was a full satisfaction of the claim. The Court found that the second element was satisfied because Fisher’s claim was unliquidated and her damages subject to a bona fide dispute (Plaintiff testified that at the time of her conversation with James, she was unaware of the extent of her injuries). Lastly, the Court found that the third element was satisfied based on the fact that Fisher cashed the check. Thus, the Court held that Fisher’s claims were discharged by virtue of MCL 440.3311(2), because, again, the “Advice of Payment” document ‘contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.’
“In this case, the Advice of Payment contained plaintiff’s name and address, Progressive’s name and address, the date of loss, plaintiff’s claim number, and a statement indicating the check was a ‘Full and Final Settlement of all Bodily Injury Claims Individually and Jointly.’ Unlike the check and accompanying letter in Nationwide, the Advice of Payment contains an explicit statement that the payment is a full and final settlement of plaintiff’s claims. And although the check did not identify defendants by name, plaintiff was informed during the February 2018 phone call with Progressive that Progressive was calling on behalf of defendants. Because the Advice of Payment accompanying the check contains sufficient information to discharge plaintiff’s claim under MCL 440.3311(2), the trial court did not err by finding that an accord and satisfaction had been created.”
The Court of Appeals also rejected Fisher’s second argument on appeal: that even if there was a valid accord and satisfaction, it was fraudulently induced. The Court noted that, when testifying regarding her conversation with Jones, Fisher said only:
‘They told me they were giving me $1,500 because of me being in the accident. They didn’t say it was a settlement. . . . They told me it was because I was in an accident and they know that, you know, things come up when you’re in an accident. They just want to give me something for it because I was in the accident. They didn’t say it was a settlement.’
“Even viewed in the light most favorable to [Fisher],” the Court held, this testimony did not establish by clear and convincing evidence that Progressive fraudulently induced the accord and satisfaction.