Nadeem v. Maurer, No. 36630-8-III, 2020 WL 730683 (Wash. Ct. App. Feb. 13, 2020) (unpublished), arose from a motor-vehicle accident involving Mohammed Nadeem and Kendra Maurer. Nadeem was born in Iraq and was not fluent in English, though he understood English for basic transactions.  Shortly after the accident, Nadeem made a bodily injury claim to Maurer’s insurer.

A claims professional from Maurer’s insurer phoned the pro se Nadeem to negotiate a settlement. A transcript of their conversation, conducted entirely in English, showed that Nadeem responded “Um hum” or “Yes” to all of settlement terms. Those terms included a release of all claims against Maurer in exchange for payment of specific amounts for past medical expenses, wage loss, and pain and suffering, and payment of additional accident-related medical expenses incurred within 180 days of the agreement. The settlement was reduced to a written agreement, which Nadeem signed.

The insurer sent Nadeem a check for the amount negotiated for his past medical expenses, wage loss, and pain and suffering. He cashed the check.  Nadeem then submitted a claim for additional medical expenses, and the insurer sent him a second check. Nadeem retained counsel and returned the check uncashed.

Nadeem then sued Maurer for negligence. Maurer moved for summary judgment, citing the release. Nadeem responded that his command of the English language was not good and he believed that “release” meant that a check would be released to him. The opinion provided that Nadeem understood and spoke English for “routine daily transactions,” but used an interpreter for “legal and medical matters.” Despite Nadeem’s argument, the trial court granted the motion and dismissed the complaint.

Nadeem appealed the summary judgment order. Division Three of the Washington Court of Appeals reversed, finding a factual question on whether there was a “meeting of the minds” about the settlement’s key terms.

Washington law governing contract formation and release of liability is well settled. The state follows the objective manifestation theory of contracts, which requires courts to look to the parties’ objective manifestation of intent rather than their unexpressed subjective intent. (Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503 (2005).)

To form a contract, the parties must mutually assent to the “essential terms” of the contract. (See Mukilteo Ret. Apartments, L.L.C. v. Mukilteo Inv’rs L.P., 176 Wn. App. 244, 260 (2013).) “Mutual assent” is typically a question for the trier of fact, not a matter of law.  It can only be decided as a matter of law if reasonable minds could not differ. (P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 207 (2012).)

Furthermore, settlement agreements need not be in writing. (Saben v. Skagit Cty., 136 Wn. App. 869, 876 (2006).)  Whether acceptance of a check constitutes acceptance of an offer depends on the circumstances of the parties and the transaction. (Maryatt v. Hubbard, 33 Wn.2d 325, 331 (1949).)

Division Three found a question of fact concerning whether the parties assented to a settlement due to the fact that Nadeem was not a native English speaker. The appellate court could not say as a matter of law that Nadeem’s “belief in the meaning of the word ‘release,’ and what he thus was agreeing to when he ‘released’ Maurer, was incorrect. It is possible that he reasonably interpreted the conversation, as an agreement to accept specific amounts for specific damages incurred to that point without intending to release all of his claims for any future damages.” (Nadeem v. Maurer, 36630-8-III, 2020 WL 730683, at *2 (Wash. Ct. App. Feb. 13, 2020).)

Takeaway

When settling with a pro se claimant who acquired English as an additional language, consider having the release agreement translated into the speaker’s dominant language. Spending money for a certified interpreter to do the translation could be the difference between an enforceable settlement and continued, protracted litigation.

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