Enforcing Settlement: Kolbe v. McKnew
The Baltimore Medical Malpractice Lawyer Blog examines Maryland appellate opinions in personal injury cases that involve issues also arising in medical malpractice cases. In this post, I examine an attempt at enforcing a settlement agreement in a litigation case. The case is the January 20, 2026, unreported opinion by the Appellate Court of Maryland in Kolbe v. McKnew, No. 1791.
Factual Background
This case involved a car collision, and the plaintiff filed a lawsuit in the Circuit Court for Prince George’s County. The plaintiffs included a woman and her two minor children. (Op. at 2).
Before trial, counsel for the defendants sent a settlement offer to counsel for the plaintiffs via email. It stated, “I have final authority of $30k/each for the kids for a total of $160k.” Counsel for the plaintiff made a counteroffer stating, “I am at $175,000,” and asked whether the insurance company would make it a “global settlement.” According to counsel for the defendant, he orally accepted that offer during a phone call with opposing counsel. Subsequently, per counsel for the defense, counsel for the plaintiff attempted to raise the settlement demand to $300,000 on the same phone call. Counsel for the defense later filed a motion enforcing the $175,000 settlement. (Id. at 3). Defense counsel also asserted that the plaintiff lawyer’s statement that he “meant to withdraw the offer during the phone call but had not done so” indicated a settlement. (Id. at 4).
In response to the motion enforcing settlement, counsel for the plaintiffs did not dispute whether the phone call took place or whether counsel for the defense accepted the settlement demand for $175,000. Instead, counsel asserted that he withdrew the $175,000 settlement offer “at the same time” that counsel for the defense accepted. Per counsel for the plaintiff, there was no settlement, and negotiations remained ongoing. (Id.)
The circuit court granted the defense’s motion to enforce the settlement without holding a hearing. The plaintiffs appealed. (Id.).
Appellate Court on Enforcing a Settlement Agreement
The Appellate Court stated that it is often extremely difficult to determine the factual question of whether the parties intended to create an executory accord, where one party pays the other to dismiss claims. Such an agreement need not be in writing. Oral executory agreements are binding and may be enforced as long as the basic requirements for a contract are present. Where the existence of a settlement agreement is contested, a full plenary hearing is required. That an agreement to settle exists between the parties must be proven based on facts in the record and not solely on the allegations of counsel. (Id. at 5-6).
The Appellate Court held that the trial court erred because a full plenary hearing was required before issuing a ruling on the motion to enforce the settlement. The trial court granted the defense’s motion to enforce the settlement without any evidence that the parties had agreed to settle the case, even though the parties disputed the existence of any such agreement. There was no sworn testimony, affidavits, depositions, interrogatories, or anything remotely resembling evidence adduced at the motion hearing to prove the existence of an agreement between the parties. The trial court granted the defense’s motion to enforce the settlement solely based on the representations made by counsel in their pleadings. This was an error, and the Appellate Court reversed. (Id. at 6-7).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Enforcing a Settlement Agreement
The trial court in this case failed to take evidence on whether there was a settlement. The facts in this case are quite unusual. The trial court may have heard that the plaintiff’s lawyer admitted they failed to withdraw the offer and perhaps concluded that, legally, there was no dispute of fact. However, the Appellate Court made clear in this opinion that the trial court still has to take evidence.
Representations by counsel in pleadings are not enough, even when the evidence is going to be the same in sworn form. The evidence on whether there was a settlement was composed of communications between the lawyers.
Moreover, it is a very unusual situation for a plaintiff’s lawyer to attempt to withdraw a demand and then replace it with one that is almost twice as much. The opinion does not discuss any facts that shed light on what led to the move.
On remand, the parties will have an opportunity to present evidence regarding the existence or nonexistence of a settlement. In addition, the plaintiff should consider explaining the rationale for the attempt almost to double their settlement demand. Without a supportive explanation, it is hard to see a judge being sympathetic to such a move.
Practice point
In mediations, the mediator serves as a neutral witness to any settlement reached. When lawyers negotiate directly with each other, however, they should plan the communication and document it in the event one side contests with a motion enforcing settlement. Email is a good choice.
However, it is best not to mix and match. In this case, it appears that plaintiff’s counsel sent an email demand and then followed up with a phone call intended to replace it. The risk is obvious – the opposing lawyer may accept the prior demand before it is replaced. That may be what happened here. The preferred practice is to communicate the replacement demand by email.
You can read other Blog posts involving settlement issues.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.