Can I Sue Cash the Check the Insurer Gave Me and Still Sue Them?

Full question:

My car was totaled last month, the other driver's insurance accepted responsibility. However after many discussions we are still $3,000 apart on the value of the car. My plan is to take their check and sue the other driver in small claims court. If I deposit their check will writing 'accepted as partial settlement' with my endorsement will that protect my right to continue on with small claims court? Should I not deposit their check until after small claims? Basically, how do I move on to the next step of suing in small claims for the remainer of what I know is owed?

• Category: Insurance
• Date: 04/07/2025
• State: Georgia

Answer:

We suggest you contact the clerk of courts at the local small claims court to inquire what the monetary limit of their jurisdiction is. No, you likely cannot cash the check if you intend to sue. The check likely has terms attached stating the cashing it is full settlement of the claim and one party can’t change terms on their own without the other’s consent. For a valid accord and satisfaction between two parties, a mutual assent or agreement or a meeting of the minds is required. In other words, the thing agreed to be given or done in satisfaction must be offered and intended by the debtor as satisfaction, and accepted as such by the creditor. Where there is no agreement to settle all matters in dispute, no accord and satisfaction results.

Retention of a check offered as payment in full has been sometimes been held to constitute assent to an accord and satisfaction. As a general rule, where a creditor receives a check purporting to be in full payment of a debtor's disputed obligation, the creditor should return it promptly in order to avoid an accord and satisfaction or a presumption that the creditor's retention of the check is in satisfaction on the underlying obligation.