Tamara Carr v. USAA General Indemnity Company

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2025-CA-00106-COA

TAMARA CARR APPELLANT v. USAA GENERAL INDEMNITY COMPANY APPELLEE

DATE OF JUDGMENT: 01/17/2025 TRIAL JUDGE: HON. BURNICE WESLEY CURRY IV COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PAUL MANION ANDERSON ATTORNEYS FOR APPELLEE: MATTHEW D. MILLER RACHEL E. GHOLSON

NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 09/15/2026 MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., McCARTY AND LASSITTER ST. PÉ, JJ.

McCARTY, J., FOR THE COURT:

¶1. A driver sued her insurance company when it refused to pay benefits after she was hit by an uninsured driver. After an unsuccessful mediation, the parties agreed to hold their ending offers open for one week. The driver’s lawyer texted the company’s lawyer their final offer. Before end of business, the company emailed “we have a settlement” at that number.

¶2. But a few days later, the driver’s lawyer attempted to claw back the settlement and go to trial. The company sought to enforce the settlement, and the trial court agreed it was enforceable.

¶3. On appeal, the driver argues it was an abuse of discretion to enforce the settlement. Finding that there was evidence the parties reached a meeting of the minds, we affirm.

FACTS AND PROCEDURAL HISTORY

¶4. On January 16, 2020, Tamara Carr was injured and her car totaled when she was hit by uninsured driver, Erica Caffie. Carr had attempted to cross U.S. Highway 49 at the intersection of Rawls Spring Road in Hattiesburg when she was struck on the passenger side. Carr was taken to the emergency room and later treated at various medical clinics for neck and back pain.

¶5. The initial police report found Carr to be 100 percent at fault. But she denied liability, and claimed that she had looked both ways, yielding the right of way, but did not see Caffie because the other driver was negligently driving in the dark without headlights.

¶6. At the time of the crash Carr was insured by USAA General Indemnity Company. Because Caffie was uninsured, Carr was eligible to claim benefits under her uninsured motorist coverage. However, USAA refused to make any payments to Carr under this coverage until she could prove that she was legally entitled to recover damages. So Carr hired Holmes, McLelland, & Ferraez, PLLC.

¶7. Through her attorney Mary Lee Holmes, Carr provided USAA with a preliminary expert report confirming that Caffie’s headlights were off, resulting in the crash. Upon receipt, USAA adjusted its liability evaluation assigning 85 percent fault to Carr and 15 percent fault to Caffie.

¶8. Attorney Holmes sent an initial demand for $466,808.60 to settle the matter. As Carr continued to receive medical care a second demand was sent for $900,000, or the stacked policy limits. However, without receipt of Carr’s full medical release, both demands went

3

unanswered. At some point thereafter, another attorney at HMF, Cory Ferraez, took over Carr’s representation.

¶9. Ferraez filed a Complaint for Carr against Caffie and USAA in the Circuit Court of Forrest County in December 2021. The matter proceeded to litigation, including removal to and remand from federal court, discovery, various motion hearings, and several amended scheduling orders. An unsuccessful initial mediation also took place. A default judgment was ultimately entered against Caffie for failure to appear, leaving USAA as the sole defendant.

¶10. Afterwards, the parties discussed a second mediation. As a part of the discussion, USAA’s Counsel, Tim Sterling, emailed Ferraez USAA’s certain conditions:

And these next things were mentioned at last mediation, but still applicable.

USAA requires non-disparagement and confidentiality. It does not automatically pay for mediation, even successful ones. Its general rule is that the cost of mediation is split no matter the outcome. And finally, a settlement would end everything; dismissal of the entire suit.

¶11. But just like the first, the second mediation ended unsuccessfully. While the parties did not settle, they agreed to hold their final mediation offers open for one week. Notably, the parties were only $25,000 apart, with USAA at $250,000 and Carr at $275,000.

¶12. On Friday, September 1, 2023—the last day of the offer period—Ferraez texted Sterling. The text was sent at 11:44 a.m. and read:

Tim, this is Cory. Tamara’s not coming off the 275k given liens. Can you see if you can get that authority so we can wrap this up?

¶13. At 4:50 p.m. the same day, before close of business, Sterling responded to Ferraez via email:

4

All,

We have a settlement at $275k in exchange for dismissal and release of all claims, non-disparagement and confidentiality. Mediation costs split.

Please confirm agreement.

Thanks everyone and have a better holiday weekend!

Tim

¶14. The following Monday, Ferraez called and emailed Sterling to discuss the purported settlement. Due to the Labor Day holiday, Ferraez did not receive a response. Carr’s lawyer reached out once more on Tuesday, emailing Sterling at 8:29 a.m.:

Tim:

I tried to call yesterday, but understand it was a holiday weekend. Put simply, my client no longer wishes to settle and would instead like to proceed to trial.

Because I was not expecting this and did not have the opportunity to work over the weekend, I’m having Rebecca reach out to Beth Re pre trial conference dates for next week instead to give us both time to complete what we need to prior to the conference.

I will be in the office shortly after lunch to discuss by phone.

¶15. The next day, September 6, 2023, the mediator emailed the parties:

Counselors:

I was copied on an email string between the two of you in this matter.

As you are aware, I had indicated to both of you that I would make a mediator’s recommendation to split the difference between the $275,000.00 that Cory demanded and the $250,000.00 that Tim had offered.

I did not reserve anything from Cory related to this client’s acceptance of that proposal. However, I did receive an email from Tim Sterling, Esquire on behalf of the Defendant accepting the $275,000.00 demand for settlement before the close of business on Friday. Please correct me if I am wrong, however, I understood that the $250,000.00 offer was going to be open

5

through Friday, as was the $275,000.00 demand. Please advise if I am correct that the case is settled. I will provide each of you with a copy of my invoice as soon as possible.

Neither party responded to the inquiry. However, believing an agreement had been reached, USAA filed a Motion to Enforce Settlement. The same day, Ferraez filed his Motion to Withdraw as Counsel of Record for Tamara Carr.

¶16. A hearing was held on the motion. Carr was represented by a new lawyer from a different law firm, who had entered his appearance a day prior. Meanwhile, Ferraez’s motion for withdrawal was granted. The trial court then set a briefing schedule to address the motion to enforce, and ordered an evidentiary hearing.

¶17. During the hearing, USAA put on evidence of the parties’ emailed discussions regarding mediation and settlement, Ferraez’s text message to Sterling prompting settlement negotiations, Zachary’s letter to the parties inquiring about reaching a settlement, and Sterling’s Affidavit confirming USAA’s acceptance of Carr’s offer and lack of terms in dispute. Three witnesses also took the stand: Ferraez, Zachary, and Carr herself.

¶18. Ferraez testified that he represented Carr throughout litigation, during both mediations, and up until the initial hearing on the motion to enforce the settlement. He further acknowledged sending and receiving various communications related to mediation and settlement that had been entered into evidence by USAA. Going into the mediation, Ferraez confirmed that the parties had no dispute as to the terms of non-disparagement, confidentiality, or mediation costs.

¶19. Crucially, Ferraez conceded that “the only material term to discuss . . . was the amount

6

of money that USAA would pay Ms. Carr” to resolve the lawsuit. During the negotiation period, Ferraez acknowledged that Carr neither withdrew nor revoked her offer before USAA’s acceptance.

¶20. The mediator, Pat Zachary, took the stand next. He testified that the parties did not reach a settlement at mediation, but that they verbally agreed to hold their ending offers open for a week. He stated that “early on” it was established that “if a settlement was reached, the terms that USAA would . . . include[] in the settlement would be a release with confidentiality and non-disparagement language and a final judgment of dismissal of all claims[.]” That normally, “[t]hose are details that are done after there is an agreement on the number[.]” Therefore, “the only thing left to negotiate with this settlement [was] the sum of money that USAA would pay to Ms. Carr[.]”

¶21. Carr then took the stand as the last witness. Unlike the two witnesses before her she testified that at mediation she “did not agree to make an offer for $275,000 . . . . And [she] did not at any point say that [she] would accept a $275,000 amount.” However, she did agree that “USAA made an offer . . . to settle [her] case for $250,000[.]” When questioned about the parties’ agreement to leave their offers open after mediation had failed, she stated that she “did not hear that conversation that stated to leave that offer open. . . . [T]hat that offer – $275,000 never came up.” She also never withdrew her offer before September 1, 2023, because “[t]he offer was never made.” Given her injuries, lost wages, and pain and suffering, Carr testified that $275,000 was never “on [her] radar as a potential settlement for this case.”

¶22. After the hearing, the trial court entered an order enforcing settlement. Carr now

7

appeals the trial court’s decision.

STANDARD OF REVIEW

¶23. “This Court reviews rulings on motions to enforce settlement agreements for abuse of discretion.” Logan v. RedMed LLC, 377 So. 3d 956, 962 (¶26) (Miss. 2024) (quoting Crowley v. Germany, 268 So. 3d 1277, 1278 (¶7) (Miss. 2018)). “The existence of a contract is a question of fact that is to be determined by a jury, or a trial judge when a trial is conducted without a jury.” Id. (quoting Redd v. Redd (In re Conservatorship of Redd), 332 So. 3d 250, 257 (¶24) (Miss. 2021)). In cases “where the judge has sat as the fact-finder, we afford deference to the findings of the trial judge.” Chantey Music Pub. Inc. v. Malaco Inc., 915 So. 2d 1052, 1055 (¶10) (Miss. 2005). For “it is the role of the trial judge . . . to resolve conflicts in the evidence, evaluate the credibility of the witnesses, and determine the weight of the evidence.” Mallette v. Revette, 430 So. 3d 799, 808 (¶27) (Miss. 2026) (quoting Phillips v. City of Oxford, 368 So. 3d 317, 326 (¶33) (Miss. 2023)).

¶24. Ultimately, “we will not disturb the findings of the judge unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Chantey Music Pub., 915 So. 2d at 1055 (¶10).

DISCUSSION

¶25. On appeal, Carr raises two issues: whether the circuit court abused its discretion by determining that there was a meeting of the minds to enforce settlement, and whether the circuit court abused its discretion by allowing the parties’ mediator to testify regarding the purported agreement. As we find the first issue to be dispositive, we will decline to address

8

the second.

¶26. Generally, settlement agreements are favored by the law and will be enforced “absent any fraud, mistake, or overreaching.” McManus v. Howard, 569 So. 2d 1213, 1215 (Miss. 1990). Should an agreement be challenged, “the party seeking to enforce the agreement has the burden of proving ‘by a preponderance of the evidence that there was a meeting of the minds.’” Nat’l W. Life Ins. Co. v. Dunn, 117 So. 3d 670, 672 (¶10) (Miss. Ct. App. 2013) (quoting Vaughn v. Rettig, 912 So. 2d 795, 799 (¶21) (Miss. 2005)).

¶27. “A meeting of the minds, or ‘the manifestation of mutual assent . . . ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party.’” Thompson v. White, 328 So. 3d 210 216 (¶16) (Miss. Ct. App. 2021) (quoting Restatement (Second) of Contracts § 22(1) (1981)). And acceptance “may be inferred from conduct of the parties.” Ammons v. Cordova Floors, Inc., 904 So. 2d 185, 190 (¶19) (Miss. Ct. App. 2005).

¶28. As set out above, the burden of proof in these types of cases is set by our Supreme Court as a preponderance of the evidence. Therefore, as the party seeking the enforcement, USAA need only convince the trial court that the parties more likely than not agreed to settle.

¶29. Upon review, we find that the evidence presented supported a finding that the parties had settled the case. Witness testimony and evidence provided that the only remaining term in dispute between the parties was the dollar amount. Carr was insisting on $275,000 to resolve her claims, and USAA remained steadfast it would not pay more than $250,000. Ferraez, who had represented Carr throughout the litigation, testified that $275,000 and

9

$250,000 were the ending positions of the parties after the unsuccessful mediation. As Ferraez explained it, those offers had not expired. When asked “Did the parties agree . . . that they would leave the offers open for a week?” Ferraez replied “Yes.”

¶30. Ferraez further admitted on the stand that terms required by USAA such as confidentiality, full release, non-disparagement, and mediation costs were not crucial to resolving the dispute between Carr and her insurer. In fact, Ferraez testified that these terms had been covered by the terms of the mediation.

¶31. The trial court also had before it two additional pieces of evidence which tended to show that the parties had indeed reached a settlement. First, there was Ferraez’s, Carr’s then- lawyer, text to counsel for USAA. In the text, he relayed that Carr was “not coming off the 275k given liens. Can you see if you can get that authority so we can wrap this up?” The trial court also saw USAA’s e-mailed response to the text which relayed in part “We have a settlement at $275k in exchange for dismissal and release of all claims, non-disparagement and confidentiality,” as well as “Mediation costs split.” This exchange further amplified that the core dispute between the parties was the dollar amount, and not terms involving confidentiality or mediation costs.

¶32. It is true that Carr took the stand and testified that she did not want the deal and would not have agreed to it. But she was represented by counsel throughout the proceeding, and generally litigants are bound by the actions of their lawyers. See Parmley v. 84 Lumber Co., 911 So. 2d 569, 573 (¶19) (Miss. Ct. App. 2005) (holding that “[a]n attorney is presumed to have the authority to speak for and bind his client”). Moreover, the existence of a settlement

10

“agreement may be established by the actions of the parties, or that of their respective agents.” Id. at 572 (¶15). While Carr’s newly-retained counsel argued terms required by USAA such as non-disparagement and confidentiality required further negotiation and separate consideration, there was evidence that these terms had already been agreed to at the mediation and were not the source of any conflict. Given the modest burden of proof, it was not error for the trial court to find that the parties agreed that the $275,000 offer would encompass the entire settlement amount, release terms and all.

¶33. Accordingly, we find that the trial court did not err by finding that the parties had reached a settlement, and did not err in granting the motion to enforce the settlement.

¶34. AFFIRMED.

BARNES, C.J., CARLTON, P.J., WESTBROOKS, McDONALD, LAWRENCE, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.