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Smith v. Settle9/12/1997
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
This appeal of consolidated personal injury cases raises issues involving a so-called high-low agreement, sovereign immunity, and rulings on jury instructions.
Kenneth J. Settle, Sr., was driving a car on State Route 1 in Prince William County when it was struck in the intersection of Route 1 and Fuller Road by an ambulance of the Dumfries-Triangle Rescue Squad, Incorporated. The ambulance was being driven on Fuller Road by rescue squad member Robert L. Smith, Jr., with its siren and red lights in operation. At that time, the traffic light controlling the intersection was green in Settle's direction and red in Smith's direction. Smith pled guilty to a reckless driving charge arising from this collision.
Settle and the passengers in his vehicle, Dana Powell-Settle and their minor children, Dana L. Powell-Settle and Kenneth J. Settle, Jr., (by their next friend), filed separate personal injury actions against Smith and the rescue squad. These actions were "consolidated for all purposes, including trial." Pleas of sovereign immunity filed by Smith and the rescue squad were sustained after a pretrial hearing. Hence, the circuit court dismissed the rescue squad as a party defendant and held that Smith could only be liable for "acts or omissions constituting gross negligence."
Following presentation of the testimony at a subsequent jury trial, counsel for the plaintiffs stated that the parties and the primary liability insurance carrier of Smith and the rescue squad had arrived at a high-low agreement. Although the statement was made on the record in the presence of opposing counsel, the court was not present. As counsel for the plaintiffs noted on brief, the agreement was set out in the record "in its entirety." Among other things, the agreement required that the primary carrier pay the plaintiffs $350,000 if the jury returned verdicts for Smith.
Thereafter, the court heard argument on counsel's proposed jury instructions and read the instructions it had granted to the jury. After closing arguments by counsel, the jury deliberated and returned verdicts for Smith.
Later, the plaintiffs refused the primary carrier's tender of $350,000. Thereafter, the defendants filed a motion to enforce the high-low agreement, which the court denied. Instead, the court sustained the plaintiff-passengers' motions to set aside the verdicts and to award a new trial because the jury had been erroneously instructed that the passengers could not recover if the driver of the Settle car was guilty of contributory negligence.
After a second jury failed to agree upon the verdicts at the second trial, a third trial was held in which a third jury returned verdicts for Smith. Overruling the plaintiffs' motion to set aside the verdicts, the court sustained their alternative motions to enforce the high-low agreement and ordered "the defendant insurer" to pay the plaintiffs $350,000, "as agreed by the parties." Smith appeals that part of the final order enforcing the high-low agreement. The plaintiffs assign cross-error (1) to the sustaining of Smith's plea of sovereign immunity and (2) to the overruling of their motions to set aside the verdicts of the third trial.
Smith contends that he is no longer bound by the high-low agreement because the plaintiffs repudiated the agreement by refusing his primary carrier's tender of $350,000 following the return of the first verdict. The plaintiffs respond that their refusal of the tender was justified under the agreement. We agree with Smith.
Recognizing that there is no explicit provisi
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