finding proposals complied with the rule by identifying the claim or claims it sought to resolve; rejecting broker’s argument that the proposals 14 were ambiguous where paragraph 2 failed to clarify whether proposals applied to claims “in this action” as opposed to claims which may have accrued in the future because the phrase “in this action” was used in paragraphs 3 and 4, and there was no other claim to resolve other than the broker’s breach of contract claim
How later courts described this case
- finding proposals complied with the rule by identifying the claim or claims it sought to resolve; rejecting broker’s argument that the proposals 14 were ambiguous where paragraph 2 failed to clarify whether proposals applied to claims “in this action” as opposed to claims which may have accrued in the future because the phrase “in this action” was used in paragraphs 3 and 4, and there was no other claim to resolve other than the broker’s breach of contract claim
- holding that offeree did not meet burden of proving that $500 proposal for settlement was made in bad faith where claimed damages were $300,000
- finding that a $500 proposal was made in good faith
- reversing the trial court’s finding of a lack of good faith, despite the fact the offeror had conducted little discovery, because the unenforceability of the contract was apparent from its face
Written by the judges who cited it.
The opinion
DAMOORGIAN, J.,
concurring specially.
I concur and write only to emphasize Judge Gerber’s point that the offeree should be required, by statute or rule, to notify the offeror of any real or perceived ambiguity in a proposal for settlement. The very notion that ambiguity can be raised as a defense after the time for acceptance of the offer has passed makes no sense. This “gotcha” tactic has plagued the courts for far too long and is a waste of judicial resources. The fix is quite simple. If the offeree does not specifically identify the ambiguity within a fixed period of time from the date of the offer, any objection based on ambiguity is waived.