Perera v. Windsor11/20/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this consolidated action for wrongful death and declaratory relief, we remand for the trial court to amend the amount of the judgment as explained in the opinion. As amended, the judgment is affirmed.
BACKGROUND
On October 5, 1994, the two-year-old son of plaintiffs Joseph and Maria Perera accidentally drowned in a backyard swimming pool at the home of defendants Eva Windsor and Stephen Windsor, Jr., while Eva was baby-sitting the child. In the ensuing wrongful death action, the jury found total economic damages of $30,000, and non-economic damages of $532,500. The jury apportioned liability as follows: 60 percent against Eva; 0 percent against Eva's husband; 10 percent against Eva's son, defendant Stephen M. Windsor (who was 19 years old at the time of the accident and has since filed for bankruptcy ); 10 percent against Eva's boarder, defendant Josef Halmos (an unrelated family friend who is now deceased and apparently left no estate); and 20 percent against plaintiffs.
On August 29, 1997, the court entered judgment for wrongful death against Eva, Eva's son, and Halmos as follows: (1) of the $30,000 economic damages award, 80 percent, or $24,000, was assessed jointly and severally against Eva, Eva's son, and Halmos; and (2) of the $532,500 non-economic damages award, (a) 60 percent, or $319,500, was assessed against Eva individually; (b) 10 percent, or $53,250, was assessed against Eva's son individually; and (c) 10 percent, or $53,250, was assessed against Halmos individually. The court also awarded plaintiffs post-judgment interest according to law and $5,046 in costs.
In September 1997, Eva's homeowner's liability insurer, defendant Allegiance Insurance Company, tendered to plaintiffs the $300,000 limit of Eva's policy plus costs of $5,046, for a total of $305,046.
An insurance allocation dispute arose regarding the allocation of the $305,046 payment. Eva and Allegiance took the position that the entire payment should be allocated solely toward Eva's share of the judgment. Plaintiffs, however, wanted to extinguish Eva's son's and Halmos' obligations before applying the balance toward Eva's share of the judgment. Eva, unlike her son, has other assets with which to satisfy her share of the judgment, including the proceeds from the sale of her home. By stipulation, $192,806.60 of Eva's home sale proceeds was placed into a blocked trust account pending resolution of the insurance allocation dispute.
Eva's son filed for bankruptcy and listed the wrongful death judgment as his sole liability. Plaintiffs filed a complaint in Eva's son's bankruptcy proceeding, seeking to satisfy their wrongful death judgment against him. In July 1998, plaintiffs and Eva's son stipulated in the bankruptcy proceeding to the conditional dismissal of plaintiffs' complaint "on the condition that the Plaintiffs are able to satisfy their Judgment against [Eva's son] in full from the tendered insurance policy [illegible] Allegiance Insurance Company." (In re Stephen M. Windsor (SV97-23246AG, U.S. Bankr. Ct., Cal., 1998).)
Neither Eva nor Allegiance was a party to the conditional bankruptcy settlement agreement. In the wrongful death action, Eva and Allegiance moved to apply the entire $305,046 policy payment exclusively toward Eva's share of the judgment and enter a partial satisfaction of
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