Bretton Albrecht of the Ft. Lauderdale office secured an affirmance of a defense summary judgment enforcing a pre-suit auto accident settlement, even though neither settlement check was received by Plaintiff within the 30-day demand deadline.

The $15,000 bodily injury limits check was properly addressed to Plaintiff’s counsel but lost in the mail. The diminished value check was mailed to Plaintiff but returned as undeliverable because the apartment number was missing.

The appeal centered on whether the checks were timely “tendered.” All other demand requirements were timely satisfied. Plaintiff argued that “tender” required actual delivery or receipt, that the diminished value check should have been sent to counsel, and that the defense could not conclusively prove the BI check was mailed.

Bretton argued that “tender” is distinct from actual payment: the demand required the checks to be “tendered,” not “delivered,” “received,” or “paid.” Both checks were issued, printed, and processed for mailing about two weeks before the deadline. A postmark established timely mailing of the diminished value check, while an affidavit established that the BI check was processed and sent for mailing.

Bretton also argued that if actual receipt were material, the demand would have said so. Plaintiff’s counsel was repeatedly advised that the checks were being sent but never reported they had not arrived before filing suit.

She further argued that sending the diminished value check directly to Plaintiff rather than counsel was not a material deviation.

Following oral argument, Florida’s Fifth DCA issued a per curiam affirmance just two weeks later, upholding the defense win.