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Barker v. Roelke3/20/2003
This appeal involves an effort to set aside release agreements executed to settle tort claims arising from a serious automobile accident. A vehicle operated by Jackie Jay collided with a vehicle operated by Ronald Henry Roelke on February 13, 1995, in Sherman. Jackie Jay's children, Kirsten Barker and Ryan Jay, were passengers in her vehicle at the time of the collision. Jackie Jay and her two children were all seriously injured as a result of the collision. Kirsten died from the injuries she received in the accident.
Appellant, Melvin Barker, is Kirsten's surviving father and Jackie Jay's former husband. He initiated the underlying proceedings by filing suit against Ronald Roelke asserting wrongful death and survival claims arising from Kirsten's death. Appellant did not assert a wrongful death claim on behalf of Jackie Jay in the action. Ronald Jay, Ryan's father and Jackie Jay's husband at the time of the accident, intervened in appellant's suit against Ronald Roelke seeking damages resulting from the injuries suffered by Ryan. Appellant and Ronald Jay subsequently added Elroy G. Roelke as a defendant to the action for the purpose of asserting a negligent entrustment claim against him based on the allegation that he was the owner of the vehicle operated by Ronald Roelke. Jackie Jay did not file suit against either of the Roelkes within the two-year period following the accident either for her own physical injuries or for damages arising from the death of Kirsten and the severe injuries received by Ryan.
The Roelkes were insured by two insurance policies issued by State Farm Mutual Automobile Insurance Company, consisting of an automobile liability policy and an excess (umbrella) policy. The automobile liability policy provided policy limits of $100,000 per claimant and $300,000 per accident. The excess policy provided umbrella coverage of $1,000,000. Appellant forwarded a Stowers demand to the Roelkes' attorney on January 27, 1997, seeking to settle his claims for an amount within policy limits. See American Physicians Insurance Exchange v. Garcia, 876 S.W.2d 842 , 848-49 (Tex.1994)(outlining the elements of a Stowers demand). Ronald Jay also forwarded a Stowers demand to the Roelkes' attorney. The Roelkes' attorney responded to appellant's and Ronald Jay's settlement demands immediately following the two-year anniversary of the accident in a letter dated February 14, 1997. The response letter stated as follows:
I have received each of your settlement demands in the above-referenced case, copies of which I have attached (without exhibits) to this correspondence. You have both demanded the $100,000.00 per person policy limits under the applicable automobile liability policy and $1,000,000.00 policy limits under the excess (umbrella) policy.
On behalf of my clients, Ronald Henry Roelke and Elroy Gene Roelke, and on behalf of State Farm, I accept each of your $100,000.00 demands under the applicable automobile liability policy. In addition, I am authorized to pay the full $1,000,000.00 policy limits under the applicable excess (umbrella) insurance policy to all Plaintiffs, Intervenors and potential claimants/Plaintiffs/Intervenors in full and final settlement of this lawsuit and all potential claims arising out of the accident made the basis of this lawsuit against Ronald Henry Roelke, Elroy Gene Roelke and State Farm.
Both of you have demanded the policy limits under the excess (umbrella) insurance policy. Accordingly, it will be necessary for you [Melvin Barker and Ronald Jay] both to reach an agreement with regard to the division of the policy limits under the excess (umbrella) insurance policy. In addition, a Guardian Ad Litem must be appoin
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