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