This civil action was brought for damages arising out of an automobile collision. Annette J. Painter, the appellant and plaintiff below, appeals an order of the Circuit Court of Mercer County, entered September 7, 1993, which granted summary judgment in favor of Patrick Devolta Peavy, the appellee and defendant below. The circuit court found that an accord and satisfaction was reached between the parties when the plaintiff deposited a check from the defendant's insurance company tendered "[f]or full settlement of all claims," irrespective of the notation "[d]eposited under protest" by the endorsement. The plaintiff contends that summary judgment was inappropriate because genuine issues of material fact exist. We disagree with the plaintiff's argument and affirm the order of the circuit court.
The record shows that on September 17, 1989, the plaintiff was injured when the car she was driving was struck by the defendant's car. Garland Spangler, an attorney in Virginia, originally represented the plaintiff.
In February, 1990, Mr. Spangler notified a claims adjuster for Colonial that the plaintiff rejected the settlement offer of $750. Affidavits of two Colonial claims examiners reveal that after Mr. Spangler rejected the settlement offer, he was instructed to return the check to Colonial. Colonial did not, however, stop payment of the check. The check was endorsed and it was deposited in Mr. Spangler's account in March, 1990. "Deposited under protested" was written on the back of the check.
The plaintiff stated in her affidavit that she had no contact whatsoever with Colonial nor with the defendant. The plaintiff's mother forwarded all documents to Mr. Spangler's office. The plaintiff had limited contact with her attorney. She signed a medical release and contract with Mr. Spangler, but could not remember whether she endorsed the $750 settlement check. She does not, however, assert that the signature is a forgery.
A lawsuit was filed on September 16, 1991. Negotiations between Mr. Spangler and Colonial continued.
In March of 1993, Colonial discovered that the settlement check had been deposited and that it had cleared their bank account.
The defendant moved for summary judgment based upon its defense of accord and satisfaction. By order entered September 7, 1993, the circuit court granted summary judgment, finding "no genuine issue of material fact." The circuit court held that an accord and satisfaction was reached when the plaintiff retained and used the settlement check, and that her "attempt to alter the insurance company's offer was ineffectual."
The sole issue in this appeal is whether summary judgment was appropriate.
"`A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)."
See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The circuit court's function at the summary judgment stage is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986). We, therefore, must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Masinter v. WEBCO Co., 164 W.Va. 241, 262 S.E.2d 433 (1980). Andrick, 187 W.Va. at 708, 421 S.E.2d at 249.
Nevertheless, the party opposing summary judgment must satisfy the burden of proof by offering more than a mere "scintilla of evidence," and must produce evidence
The plaintiff asserts that a genuine issue of material fact exists as to whether an accord and satisfaction was reached. In Syllabus Point 1 of Charleston Urban Renewal Authority v. Stanley, 176 W.Va. 591, 346 S.E.2d 740 (1985), we set forth the following elements of accord and satisfaction:
It is undisputed that the first element was met. Consideration was paid by the settlement check. However, the plaintiff argues that nevertheless there exist genuine issues of fact as to the remaining two elements. We disagree.
In documents supporting his motion for summary judgment, the defendant offered evidence on the second element by submitting the $750 settlement check. The words "[f]or full settlement of all claims" were conspicuously written on the top of the check.
Furthermore, the record supports the defendant's contention that the plaintiff understood Colonial offered the check upon the condition that it would be accepted in full satisfaction of the claim. The words "[f]or full settlement of all claims" leave little room for misunderstanding Colonial's intention. The fact that the words "[d]eposited under protest" were written on the instrument demonstrates the plaintiff's awareness of Colonial's condition.
We recognized in Stanley, 176 W.Va. at 595, 346 S.E.2d at 744, that the "`full payment' check rule is a harsh rule, [and] it [therefore] must be applied strictly and not liberally." The pertinent facts of this case which are clear and undisputed, however, lead only to the reasonable conclusion that the plaintiff's retention and use of the check of Colonial constituted an accord and satisfaction.
Finally, the plaintiff urges us to hold that because negotiations continued for more than a year after the settlement check was cashed, Colonial's actions constituted a waiver of the condition that the check be accepted as payment in full and the waiver was sufficient to preclude the granting of the defendant's motion for summary judgment. Some jurisdictions have concluded, based on the factual circumstances of the case, that a completed contract of accord and satisfaction was rescinded by agreement or waived by the debtor's subsequent actions. See Annot., 42 A.L.R.4th § 12 at 12 (1985). In RTL Corporation v. Manufacturer's Enterprises, Inc., 429 So.2d 855, 856-57 (La.1983), the Supreme Court of Louisiana explained how such "waiver" is governed by the law of contracts:
"These precepts are called into play when a debtor tenders a check as payment in full of an obligation due under contract to his creditor, the amount of which has been disputed by the parties. This offer by the debtor confers on the creditor a specific right to consent to full satisfaction of the debt by accepting the check or to
We agree with the Louisiana court to the extent that it suggests that "whether the parties altered their original contract or entered a transaction or compromise depends on whether there was mutual consent[.]" In the case at bar, however, we do not find the evidence sufficient to create a genuine issue of fact as to mutual consent. The evidence in the record is undisputed that Colonial requested the plaintiff's attorney to return the check after the offer was verbally rejected. Colonial continued negotiations only because it assumed the check was returned without being cashed. Thus, we find that the evidence supporting a conclusion or inference of mutual consent does not exist.
Accordingly, for the reasons set forth above, the order of the Circuit Court of Mercer County granting summary judgment is affirmed.
BROTHERTON, C.J., did not participate.
MILLER, Retired Justice, sitting by temporary assignment.