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American States Insurance Co. v. Castillo2/27/2003
settlement decisions from the outset of the action is not contained in appellant's separate statement of undisputed facts (Code Civ. Proc., ยง 437c, subd. (b)) and is not supported by the record before us. Third, that respondent's claims specialist, Wenograd, was aware of and attended settlement conferences, and was aware that the underlying action could be worth millions of dollars, does not create a triable issue of fact that respondent encouraged the settlement and stipulated judgment. Fourth, in July 1999, Wenograd unequivocally and in writing advised appellants' counsel that respondent would not be obligated by any settlement agreement or stipulated judgment entered into without its consent and reiterated respondent's offer to pay the limits of its policy. No evidence was presented that at any time thereafter respondent changed its position and consented to the terms of the settlement agreement and stipulated judgment. Finally, appellants' assertion that respondent accepted the terms of their October 26, 1999 settlement demand and settled the case in accordance with that demand is also not contained in appellant's separate statement of undisputed facts and is unsupported by the record. The October 26, 1999 settlement demand sought the remaining policy limits of $981,000 and a $15 million stipulated judgment. Respondent's subsequent tender of the $981,000 in no way establishes that it encouraged the parties to enter into the other terms of the settlement demand, particularly in light of its prior assertion that, absent its consent, it would not be obligated by any agreement. Respondent's payment of its policy limits was merely what it had offered all along as settlement of the matter. In addition, respondent's tender of the $981,000 was accompanied by its statement that as to costs, including interest, it was unable to acknowledge what had not occurred and was outside its control. While the intent of such statement is not crystal clear, it does not encourage the parties to enter into a settlement agreement with the challenged cost provision. To the contrary, the statement clarifies that those other terms were beyond its control because it was not involved in their negotiation. We conclude that appellants have failed to raise a triable issue of fact as to whether respondent's conduct estops them from relying on the no- action clause.
Summary judgment was properly granted on the ground that the no- action clause barred appellants from settling the matter without respondent's consent, and that, therefore, the award of prejudgment interest on that judgment is unenforceable against respondent.
Disposition
The judgment is affirmed.
We concur.
JONES, P.J.
STEVENS, J.
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