Campbell v. Pfeifer

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

COURTNEY ANN CAMPBELL, Plaintiff/Appellant,

v.

TAMMY PFEIFER, et al., Defendants/Appellees.

No. 1 CA-CV 18-0534
FILED 9-5-2019

Appeal from the Superior Court in Maricopa County
Nos. CV2017-012732 and CV2017-015016
(consolidated)
The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Counsel for Plaintiff/Appellant

Hill Hall & DeCiancio PLC, Phoenix
By Joel DeCiancio, Christopher Robbins
Counsel for Defendants/Appellees
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Decision of the Court

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Diane M. Johnsen and Judge Samuel A. Thumma joined.

S W A N N, Chief Judge:

¶1 This is an appeal from a summary judgment ruling enforcing
a settlement agreement. The appellant, Courtney Ann Campbell, contends
that appellee Tammy Pfeifer’s insurer did not properly accept her
settlement offer. We conclude that the offer was properly accepted and the
settlement agreement was binding. We therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 At all relevant times, State Farm Mutual Automobile
Insurance Company (“State Farm”) provided automobile insurance to
Pfeifer. In November 2015, Pfeifer negligently caused an automobile
collision that allegedly injured Campbell.

¶3 On July 26, 2017, Campbell, through counsel Augustine
Jimenez, sent a policy-limits demand letter to State Farm. The demand
letter stated:

Although our client has several unresolved injuries and
medical issues, given your insured’s liability policy limits of
$100,000 we are compelled at this time to submit this policy
limit demand.

....

[W]e hereby make a policy limits demand. Our offer can only
be accepted with certification of policy limits and an affidavit
of no other applicable insurance.

Please review the enclosed documentation and advise me of
your position no later than twenty days from the date of this
demand.

(Underlining omitted.)

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¶4 Exactly twenty days later, on August 15, State Farm faxed a
response letter to Jimenez. State Farm stated that it accepted the offer and
was simultaneously providing a copy of the policy and a no-other-
insurance affidavit:

We are writing to advise we are accepting your policy limit
offer in the amount of $100,000.

Enclosed is a certified copy of the above-captioned policy, a
completed affidavit of no other insurance, assets and course
of employment and a settlement release. . . .

....

Enclosure(s): certified policy, affidavit & release

But according to Campbell, the affidavit was not actually included in State
Farm’s fax.

¶5 On August 23, Jimenez sent a letter to State Farm declaring its
acceptance deficient and withdrawing all settlement offers:

[O]ur client’s offer dated July 26, 2017 and any [and] all prior
offers of settlement are her[e]by withdrawn.

Our client’s offer was explicit in that it required an affidavit
from your insured’s [sic] of no other applicable insurance. On
August 15, 2017, we received 7 separate e-faxes from State
Farm, each with a cover sheet. One of those faxes was your
cover letter indicating that you were enclosing three items
including an affidavit. No affidavit was included.

¶6 On August 25, State Farm faxed a response letter to Jimenez,
stating that it had previously sent the affidavit, had obtained assurance by
telephone from Jimenez’s office that it was received, but was re-sending it:

Enclosed is the affidavit we sent on 08/15/17 at 8:28am, in
addition, a call was place[d] at 8:44am to your office to verify
its receipt and your office indicated a hold harmles[s] would
be forthcoming.

....

Enclosure(s): affidavit

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According to Campbell, however, the affidavit again was not included.

¶7 Campbell refused to move forward with the settlement, and
in October 2017 brought a negligence action against Pfeifer. Pfeifer
answered and asserted a counterclaim seeking enforcement of her insurer’s
settlement agreement. Pfeifer then moved for summary judgment on the
complaint and counterclaim, contending that an enforceable settlement
agreement was formed on August 15 when State Farm accepted Campbell’s
offer. Pfeifer contended that the offer did not condition acceptance on
provision of the no-other-insurance affidavit within a specified period, and
that in any event, State Farm had faxed the affidavit to Campbell on August
15 and August 25. Pfeifer provided a copy of the affidavit, which was in
the form of an unsworn declaration signed under penalty of perjury,
consistent with Ariz. R. Civ. P. (“Rule”) 80(c).

¶8 Campbell responded that State Farm could not have accepted
her offer without providing the affidavit, and that it never did so. In
support of her assertion that State Farm never provided the affidavit,
Campbell submitted (1) Jimenez’s secretary’s sworn statement that no
affidavit was received with the August 15 and August 25 faxes, and (2) a
computer forensic analyst’s report concluding that Jimenez’s fax and
computer system did not receive the affidavit. At oral argument, Campbell
also argued that the affidavit was substantively deficient because it was not
notarized, and therefore was not actually an “affidavit” as required by the
offer. Campbell also argued, without elaboration or supporting evidence,
that an asset check had raised questions about whether Pfeifer had
additional insurance policies.

¶9 The superior court granted summary judgment for Pfeifer
and entered a final judgment from which Campbell appeals.

DISCUSSION

¶10 We review the grant of summary judgment de novo, viewing
the evidence and reasonable inferences in the light most favorable to the
non-moving party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). A party
is entitled to summary judgment when “there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter
of law.” Rule 56(a) (emphasis added). “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986) (applying analogous federal summary judgment rule)

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(emphasis in original); see also Orme Sch. v. Reeves, 166 Ariz. 301, 311 (1990)
(“[I]t would effectively abrogate the summary judgment rule to hold that
the motion should be denied simply on the speculation that . . . some
dispute over irrelevant or immaterial facts might blossom into a real
controversy in the midst of trial.”). “[T]he substantive law will identify
which facts are material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248.

¶11 Settlement agreements, favored by Arizona law, are governed
by general common-law contract principles. Emmons v. Superior Court, 192
Ariz. 509, 512, ¶¶ 11, 14 (App. 1998). An enforceable contract requires an
offer and its acceptance. K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass’n,
139 Ariz. 209, 212 (App. 1983). An offer is “a manifestation of willingness
to enter into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited and will conclude
it,” and an acceptance of an offer is “a manifestation of assent to the terms
thereof made by the offeree in a manner invited or required by the offer.”
Id. (quoting Restatement (Second) of Contracts (“Restatement”)1 §§ 24, 50).
The acceptance must manifest assent to the same bargain, Restatement
§§ 29 cmt. a, 50 cmt. a, and it must comply with the offer’s substantive
requirements, Restatement § 58, Clark v. Compania Ganadera de Cananea, S.A.,
94 Ariz. 391, 400 (1963), as well as any requirements regarding the time and
manner of acceptance, Restatement §§ 60 & cmt. a, 30 cmt. a, 50 cmt. a. But
unless the offer unambiguously limits the type and manner of acceptance,
any reasonable acceptance will suffice. Restatement §§ 58 cmt. a, 30 cmt. b,
60 cmt. a. “In case of doubt an offer is interpreted as inviting the offeree to
accept either by promising to perform what the offer requests or by
rendering the performance, as the offeree chooses.” Restatement § 32.

¶12 The parties agree that Campbell’s policy-limits demand
constituted an offer to release her claims against Pfeifer in exchange for
payment of the $100,000 policy limits. They dispute whether the offer
placed conditions on acceptance. We conclude that the offer imposed no
conditions on the manner of acceptance. The offer asked that State Farm
“[p]lease . . . advise [Campbell] of [State Farm’s] position” within twenty
days. The offer required State Farm to do nothing more than that—to
accept the offer by advising Campbell of its position. We reject Campbell’s

1 We typically follow the Restatement in contract cases. See 7200
Scottsdale Rd. Gen. Partners v. Kuhn Farm Mach., Inc., 184 Ariz. 341, 347 (App.
1995).

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contention that provision of a no-other-insurance affidavit was required to
effect acceptance. The offer stated that it could “only be accepted with”—
not by—“certification of policy limits and an affidavit of no other applicable
insurance,” with no time limit specified for providing those collateral
documents. (Emphasis added.) State Farm’s production of the documents
was a condition precedent to Campbell’s release of claims under the parties’
agreement, not its acceptance of the offer. Cf. Hays v. Fisher, 161 Ariz. 159,
163 (App. 1989) (“[O]nce this case was settled . . . by [Hays’ counsel]’s
acceptance on behalf of Hays of Fischer’s offer, there was a binding
settlement agreement between the parties. It obligated Fischer to tender
$10,500 to Hays and required Hays, in turn, to execute a release and a
stipulation to dismiss the action with prejudice.”). On the twentieth day,
State Farm unambiguously informed Jimenez that it agreed to the deal,
thereby binding the parties.

¶13 Though not required for acceptance, State Farm also at least
endeavored to provide the no-other-insurance affidavit on August 15 and
again on August 25. To be sure, a genuine dispute of fact exists as to
whether State Farm actually provided the affidavit. But that disputed fact
is not material to the question of the contract’s formation.

¶14 Finally, we reject Campbell’s contention that the affidavit,
even if provided, was deficient because it was not truly an “affidavit” as
requested by the demand letter. Traditionally, an “affidavit” is “a signed,
written statement, made under oath before an officer authorized to
administer an oath or affirmation in which the affiant vouches that what is
stated is true.” In re Wetzel, 143 Ariz. 35, 43 (1984). The relevant document
was not sworn, and therefore does not meet this definition of an affidavit.
But the demand letter nowhere demanded strict compliance with the
affidavit form (perhaps because such a formal requirement could not have
benefitted Campbell in any way), and the declaration provided the same
assurance as an affidavit. Cf. 28 U.S.C. § 1746; Rule 80(c). The difference
was stylistic, not substantive.

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CONCLUSION

¶15 We affirm for the reasons set forth above. In exercise of our
discretion, we grant Pfeifer’s request for an award of attorney’s fees on
appeal under A.R.S. § 12-341.01, as well as costs under § 12-341, subject to
her compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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