Smith v. Golden Eagle Insurance

Opinion

RYLAARSDAM, J. This action arises out of the aborted settlement of a personal injury action. Plaintiffs unsuccessfully attempted to enforce a purported settlement pursuant to Code of Civil Procedure section 664.6. (All further statutory references are to the Code of Civil Procedure.) Thereafter, they proceeded to trial on the underlying claim and lost; they did not appeal. Plaintiffs filed a new action against the nonsettling defendants, defendants’ insurance company and the insurer’s attorneys (hereinafter collectively referred to as defendants) for breach of the purported settlement agreement. Defendants successfully moved for summary judgment on the ground of collateral estoppel and res judicata. We agree the second action was barred and affirm.

Facts

Plaintiff Jerry O. Smith sustained personal injuries while working at Don Kott Ford when a driver lost control of his car and crashed it into Smith’s service booth. Smith and his wife (collectively referred to as plaintiffs) sued the premises owners, Don and Margaret Kott (Kotts) and others not parties to this appeal.

After plaintiffs settled with the driver, a settlement conference was conducted on November 15, 1993, in an attempt to resolve the remainder of the case. During that conference, a “tentative settlement” was reached and placed on the record; the Kotts agreed to pay $600,000 on the condition the workers’ compensation carrier would consent to the settlement on the basis that neither the Kotts nor plaintiffs would pay anything to the workers’ compensation carrier. The matter was continued for two days to obtain the assent of the workers’ compensation carrier; all of the parties agreed that the settlement was contingent.

On November 17, the parties and a representative from the workers’ compensation carrier appeared for the further settlement conference but were [1374]unable to reach a settlement. Plaintiffs’ counsel noted the settlement “fell apart,” the court’s minute order states there was no settlement; a trial date was set. Plaintiffs’ counsel served trial subpoenas and demands to exchange expert witness information on the other parties.

On the date set for trial, plaintiffs moved to enforce a settlement pursuant to section 664.6. The trial court noted that any settlement reached as a result of discussions which started on November 15 and continued on November 17 were before the court, one of the conditions for application of section 664.6, but denied the motion finding that no settlement had been reached. The parties then proceeded to trial; defendants prevailed; plaintiffs did not appeal from the judgment.