Missouri’s Western District Court of Appeals recently held that “because a letter, by its plain language, added to an original settlement offer an indemnification provision, it was not a mirror image of the original offer and was not an unequivocal acceptance.” Reppy v. Winters, 2011 Mo. App. LEXIS 1025 (August 9, 2011). The appellate court reviewed the judgment of the trial court granting Winters’s Motion to Dismiss and to Enforce Settlement because Reppy argued that the evidence did not support the trial court’s conclusion that the parties had achieved an agreement to settle.
Reppy was injured in a head-on vehicular collision between Winters’s vehicle and a vehicle in which Reppy was a passenger. Counsel for Reppy sent a pre-suit settlement demand for Winters’s policy limits. The demand letter did not mention indemnification nor any medical liens. Winters’s counsel then replied stating an acceptance of Reppy’s demand, but also included an indemnity provision for any type of lien. Because Winters’s counsel and insurer required Reppy’s counsel and/or Reppy to indemnify all liens, Reppy filed suit against Winters because his insurer failed to timely accept the offer by meeting Reppy’s conditions for a policy limit settlement.
The appellate court found that Winters did not establish by clear and convincing evidence that the parties had agreed to all of the essential terms of the settlement as of the purported acceptance date or thereafter. Because Winters’s reply, “by its plain language, added to Reppy’s original offer a term requiring Reppy’s counsel to indemnify Winters, his insurer, and his attorney of any type of lien, it was not a mirror image of the original offer and was not an unequivocal acceptance.” The trial court erred in concluding that there were no material deviations in Winters’s purported acceptance. The case was remanded to the trial court for further proceedings not inconsistent with the appellate court’s ruling.
Based on this ruling, careful consideration must be undertaken in determining how to proceed when faced with a policy limits demand that does not address the indemnification of liens. As noted by the appellate court, there must be clear and convincing evidence that the parties agreed to all of the essential terms of the settlement. If terms are added to the original offer as in the Reppy case, it is not a mirror image of the original offer and therefore, not an unequivocal acceptance.
 NOTICE: This Opinion is not final until expiration of the rehearing period.
 Id. at *2.
 Id. at *3.
 Id. at *5.
 Id. at *9.