 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Serna v. Kingston Enterprises9/26/2002
olicy, this action should be precluded because under the settlement agreement between Serna and the passengers, the passengers control all aspects of this litigation on behalf of Serna, and Serna's lawyer also represents the passengers, who are third-party defendants here.
I am troubled by a number of ethical issues presented by the settlement agreement and believe that it extends beyond what was deemed acceptable by the court of appeals and the supreme court in Bashor v. Northland Insurance Co., 29 Colo. App. 81, 480 P.2d 864 (1970), aff'd, 177 Colo. 463, 494 P.2d 1292 (1972). The trial court was similarly troubled. In its summary judgment, it indicated that representation of different clients with different interests here was contrary to the Rules of Professional Conduct. The trial court concluded that although parties on opposite sides of a lawsuit conceivably could have common interests in a second lawsuit, such was not the case here. Indeed, the trial court stated that it was referring its opinion to "the Office of Disciplinary Counsel," now the Office of Attorney Regulation Counsel. See C.R.C.P. 251.1 to 251.34.
According to Kingston, "the adversarial process has been disfigured to the point that the original plaintiffs are now defendants, a settling defendant is now the plaintiff, and the attorneys representing the original plaintiffs are now representing the settling defendant acting as the new plaintiff as well as the original plaintiffs who are now defendants." Indeed, the passengers, who were plaintiffs in the first lawsuit, are now third-party defendants here. Serna, the settling defendant in the first lawsuit, is now the plaintiff here, and she is represented by the passengers' original attorney, who continues to represent the passengers as third-party defendants.
As summarized in the majority opinion, the agreement between the passengers and Serna included the following terms:
(1) Serna stipulated to an entry of a judgment against her in the amount of $1.5 million, an amount based upon the previously vacated default judgment in the first lawsuit;
(2) Serna would pursue her claims against Kingston to recover the full amount of the $1.5 million stipulated judgment against her, and the passengers would have the right to select the attorney to represent her either in the first lawsuit or in a new lawsuit;
(3) The passengers agreed to pay all of Serna's attorney fees, costs, and expenses in the additional litigation and further agreed to indemnify her from any costs or attorney fees that might be awarded against her;
(4) Serna agreed to the selection of the passengers' present attorneys to represent her;
(5) Serna agreed not to settle her lawsuit against Kingston without the consent of the passengers, and Serna further agreed to accept any settlement in this lawsuit which is approved by the passengers;
(6) Serna agreed to pursue and exhaust all legal remedies she might have against Kingston, including appeal, without an independent right to determine whether an appeal is appropriate;
(7) The passengers agreed not to execute any of the confessed $1.5 million judgment against Serna (except for $40,000 paid by her insurer), as long as she pursued the action against Kingston;
(8) In the event of settlement or judgment, the passengers would receive all sums up to $1 million, with any excess shared equally with Serna;
(9) The passengers would have sole discretion to pursue, settle, or appeal the litigation brought by Serna.
This agreement was entered into after the passengers had settled the first lawsuit against Kingston for $850,000.
Page 1 2 3 4 5 6 7 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|