Nixon-Egli Equipment v. Superior Court CA4/2 (2016) · DecisionDepot
Nixon-Egli Equipment v. Superior Court CA4/2
California Court of Appeal Jul 8, 2016 No. E064305Unpublished
Filed 7/8/16 Nixon-Egli Equipment v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
NIXON-EGLI EQUIPMENT CO. et al.,
Petitioners, E064305
v. (Super.Ct.No. CIVRS1305081)
THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY,
Respondent;
COAST CONSTRUCTION, INC. et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Keith D. Davis,
Judge. Petition is denied.
Chapman Glucksman Dean Roeb & Barger, Glenn T. Barger and Aneta B.
Dubow; Stella Dugan Gunn, Morris & Stella, Joseph N. Stella and Jeffrey W. Gunn, for
Petitioners.
No appearance for Respondent.
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Yukevich/Cavanaugh, James J. Yukevich, Patrick J. Cimmarusti, and Sara M.
Greco for Real Party in Interest Coast Construction, Inc.
The Boccardo Law Firm and John C. Stein for Real Parties in Interest, Rui Costa
and Kimberly Costa.
The trial court granted the motion by real party in interest Coast Construction, Inc.
(Coast) for a determination that its settlement with plaintiff Rui Costa1 was in good faith
Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 904 (Dole Food).) The settlor’s
financial ability to respond to a judgment and the possibility of collusion with the
plaintiff are also factors to be considered. (Tech-Bilt, at p. 499.) We review the trial
court’s ruling under the deferential “abuse of discretion” standard and any factual
findings of the trial court, express or implied, will be upheld if supported by substantial
evidence. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957
(Cahill); Dole Food, at p. 909.) While the party bringing the motion need not provide
any factual information, if the “good faith” is challenged by other tortfeasors the moving
party must demonstrate that the settlement is reasonable. (§ 877.6, subd. (d); Mattco
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Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1350 at fn. 6 (Mattco
Forge).)
As noted above, petitioners estimated plaintiff’s damages as at least the $7 million
in insurance available to Coast, and pointed out that the settlement represented only about
2.85 percent of that amount.
A.
Privette Does not Immunize Coast from Liability to Petitioners
In Privette and cases amplifying on its rule, the Supreme Court held that the hirer
of an independent contractor cannot be liable to an employee of the contractor for injuries
suffered in the course and scope of his or her employment and due to the negligence of
the employer. (Privette, supra, 5 Cal.4th at p. 702; see SeaBright Ins. Co. v. US Airways,
Inc. (2011) 52 Cal.4th 590, 598-600.) The rationale is that the hirer should not be liable
to the employee because the employer’s obligations are limited to the payment of
workers’ compensation benefits. Because the hirer (not at fault) cannot seek indemnity
from the employer (at fault), it is unfair to impose upon the hirer liability for tort
damages. (Privette, at p. 701.)
However, this does not prevent the hirer (here, Coast) from being liable if its own
negligence contributes to the employee’s injury. (Hooker v. Department of
Transportation (2002) 27 Cal.4th 198, 214.) In this case, Coast was responsible for
traffic control at the work site, and petitioners argue that Coast’s performance of this
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obligation was done negligently and contributed to the accident. If petitioners are
correct, Privette and its progeny do not apply.
B.
Coast next argued that because plaintiff never named it as a defendant, and the
statute of limitations had long since expired, it could not be liable to plaintiff or
petitioners. In considering whether a settlement is in good faith, the court must consider
not only the settling defendant’s liability to the plaintiff, but also any potential indemnity
liability to other tortfeasors. (PacifiCare of California v. Bright Medical Associates, Inc.
(2011) 198 Cal.App.4th 1451, 1465-1466 (PacifiCare); TSI Seismic Tenant Space, Inc. v.
Superior Court (2007) 149 Cal.App.4th 159, 165-166.) Coast’s reliance on Widson v.
International Harvester Co. (1984) 153 Cal.App.3d 45 (Widson) is misplaced. In that
case, the plaintiff made a tardy attempt to add defendant Louetto to the case but the trial
court rejected the effort. Louetto then settled with plaintiff for $30,000; a jury
subsequently fixed plaintiff’s total damages at $791,743. (Widson, at pp. 49-50.) Widson
does not hold that because plaintiff could not recover from Louetto, any settlement by
Louetto would be in good faith because it would be more than Louetto’s potential
liability to the plaintiff. Instead, the Widson court carefully considered the varying
evaluations both of Louetto’s proportionate liability and plaintiff’s potential recovery at
the time of the settlement. Because Louetto’s liability was estimated to be between zero
and 10 percent, or worst case 25 percent, and the estimated recovery by plaintiff was
estimated to be from $200,000 to $750,000, Louetto’s payment of $30,000 was not
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unreasonable. (See Mattco Forge, supra, 38 Cal.App.4th at pp. 1353-1354, citing
Widson.)
Hence, plaintiff’s inability to recover from Coast does not bar petitioners’
indemnity claim as a matter of law.
C.
Finally, we reach the issue of whether Coast’s settlement may be considered to be
within the ballpark. We conclude that it is and that the trial court correctly approved it as
being in “good faith.”
A good faith settlement under sections 877 and 877.6 must strike a balance
between the competing public policies of encouraging settlements (and thus discouraging
litigation) and the equitable sharing of financial responsibility. (PacifiCare, supra, 198
Cal.App.4th at p. 1464.) Factors to be evaluated include the overall likely recovery and
the settlor’s proportionate liability, the amount paid, the allocation of the settlement
among plaintiffs, the possibility of collusion, and the settlor’s financial ability to pay,
including available insurance. (Tech-Bilt, supra, 38 Cal.3d at p. 499.) And as we noted
above, a settling defendant must be expected to benefit by the decision to settle early and
therefore need not pay its entire “fair share” of the potential judgment.
In this case, both Crain, the driver, and plaintiff have testified that they were
looking for traffic on the cross street, Carlos, and were thus distracted from watching
each other. However, there is no evidence that it was necessary to watch for traffic
because Coast’s traffic control was inadequate. Multiple witnesses described traffic on
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Carlos as “light” or “almost nonexistent,” and even plaintiff agreed that it was “light.” In
their initial statements concerning the accident, neither Crain nor plaintiff mentioned
watching for traffic. Statements attributed to plaintiff in a CAL-OSHA report reflected
only that he “did not realized [sic] that he was too close to the grinder track.” Crain at the
time simply reported that he was taking precautions not to hit a nearby building with the
boom of the grinder when another worker ran up and told him he had struck plaintiff.
Thus, neither appears to have contemporaneously proffered the explanation for the failure
to maintain eye contact with each other on which plaintiff now relies.
There is no dispute that plaintiff’s potential recovery is in the high seven figures
and in this context a payment of $200,000 is nominal. Although Coast argues that its
available insurance has “[n]o [b]earing” on the good faith issue, it concedes that it is a
proper factor to consider under Tech-Bilt.5 Nevertheless, if the trial court reasonably
concludes that the settlor’s potential liability is minimal or remote, even a small
settlement may be found to have been offered in good faith. (Cahill, supra at pp. 962-
964.) That is the case here.
We agree that the question of allocation is not significant here and that there is no
evidence of collusion; although Costa has filed opposition to the petition (that is,
5 Coast cites the trial court’s comment that evidence of insurance was “ ‘simply not an issue here.’ ” But the trial court meant only that there was no dispute that Coast, through its insurance, had the financial ability to pay much more than $200,000. It did not mean that this point was irrelevant to the analysis.
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justifying the settlement), this may well reflect only his desire to obtain something from
Coast. The court did not abuse its discretion by granting the motion.
III
DISPOSITION
The petition for writ of mandate is denied. Real parties in interest to recover their
costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J. We concur:
McKINSTER Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in determining that a $200,000 settlement was made in good faith under Code of Civil Procedure section 877.6, as the settlor's potential liability was minimal or remote.
Issues
Whether a settlement is in good faith under section 877.6 when the settlor's potential liability is contested and the settlement amount is significantly lower than the potential judgment.
Whether the Privette doctrine immunizes a general contractor from indemnity claims by joint tortfeasors when the contractor's own negligence in traffic control allegedly contributed to an injury.
Whether a plaintiff's inability to recover directly from a defendant due to the statute of limitations bars a joint tortfeasor's indemnity claim against that defendant.
Disposition. denied
Quotations verified verbatim against the opinion
“if the trial court reasonably concludes that the settlor’s potential liability is minimal or remote, even a small settlement may be found to have been offered in good faith.”
“The court did not abuse its discretion by granting the motion.”