Huens v. Tatum

Opinion

DAVIS, J. In this case we hold that the 1992 amendment to Code of Civil Procedure section 473 (further unspecified statutory references are to this code), which provides for mandatory relief from “dismissal” resulting from attorney mistake, neglect or inadvertence, does not apply to a voluntary dismissal entered pursuant to a settlement agreement.

Plaintiff Jennie Lorraine Huens appeals from an order denying her section 473 motion to vacate a dismissal of defendant Cynthia Kay Tatum entered into as part of a settlement agreement with all defendants in the case. Shortly after the settlement was executed and the defendants dismissed, plaintiff’s attorney discovered he had miscalculated the amount of insurance that was available. His section 473 motion to vacate the dismissal based on this “mistake” was denied. We affirm the trial court order.

Factual and Procedural Background

Plaintiff filed a complaint for personal injuries she sustained when her car was struck by a vehicle driven by defendant Cynthia Kay Tatum and owned by defendant Bonnie Boyd. Both plaintiff and Boyd had insurance coverage with United States Automobile Association (USAA). Boyd had a $50,000 policy on her vehicle. Defendant Tatum was insured by State Farm with $25,000 per person liability coverage.

After discovery was conducted but before trial, plaintiff received an offer to compromise pursuant to section 998, offering to pay Boyd’s policy limit of $50,000. The offer was accepted, a release was signed, the money was paid and a voluntary dismissal of both defendants with prejudice was filed.

In the course of pursuing an underinsured motorist claim with USAA, plaintiff’s attorney, Thomas Ambrose, discovered that Tatum’s $25,000 [262]State Farm policy had been available as supplemental coverage for plaintiff’s claim, contrary to his belief that Tatum’s policy did not “stack” onto Boyd’s. Plaintiff’s underinsured motorist claim was denied because she had not exhausted all available insurance coverage.

Plaintiff then brought a motion for relief under section 473, seeking to set aside the voluntary dismissal as to Tatum only. The motion was supported by Ambrose’s declaration citing his mistaken belief with respect to the availability of insurance coverage. The trial court denied the motion on the ground that “moving parties failed to show the reasonableness of the mistake and the justification for the lack of determination of the correct law . . . .” This appeal ensues.