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Smith v. Premier Alliance Ins. Co.12/20/1995
GRIGNON, J.:
Plaintiffs and appellants Jerri Lynn Smith and Adrian Paul Faskas appeal from a summary judgment entered in favor of defendant and respondent Premier Alliance Insurance Company. In the published portion of this opinion, we conclude a defendant in a wrongful death action owes no duty to nonsettling heirs not to settle with only one of the heirs. In the unpublished portion of this opinion, we address the appeal of plaintiffs and their attorney, Huey P. Shepard, from an award of sanctions against them for bringing and prosecuting a frivolous lawsuit, and Premier's request for sanctions for the prosecution of a frivolous appeal. We affirm, but deny the request for sanctions on appeal.
FACTS AND PROCEDURAL BACKGROUND
Paul Faskas died as a result of injuries he sustained in a plane crash on July 1, 1985. He was survived by his wife, Sharon Faskas (Wife), and plaintiffs, his two children from a previous marriage (Children). On June 19, 1986, Wife brought a wrongful death action against John Dubos, the pilot of the plane; Beech Aircraft, the manufacturer of the plane; and others. Wife did not name Children as plaintiffs in that action, but rather named them as defendants pursuant to Code of Civil Procedure section 382.
Sometime in 1988, Premier, the insurance carrier for Dubos, offered to settle the wrongful death action against Dubos for the $100,000 policy limits. Discussions took place with Attorney Robert Coleman, who represented Wife. Premier took the position that any settlement must encompass Children's claims as well as Wife's claim. This was agreeable to Wife. Premier drafted releases with signature blocks for Children and a request for dismissal with prejudice of the action against Dubos, which were given to Attorney Coleman together with the $100,000 settlement check. The releases were never signed by Children; the $100,000 check was deposited in Attorney Coleman's trust account.
On September 13, 1988, Wife filed a request for dismissal of the action against Dubos. Beech Aircraft then removed the action to federal court, where it was consolidated with other actions arising from the crash, under the title Dubos v. Beech Aircraft Corp. (CV 88-5525RB).
At some point, Children became aware of the wrongful death action and the settlement. Represented by Attorney Shepard, they sought a share of the settlement from Attorney Coleman. Negotiations were unsuccessful. Children therefore brought a motion in the consolidated federal court action to redesignate themselves as plaintiffs and to apportion the settlement. The motion was heard on July 17, 1989. The federal court granted the request to redesignate Children as plaintiffs, but denied the motion to apportion the settlement. After denial of the apportionment motion, Attorney Coleman released the $100,000 settlement from his trust account, presumably forwarding it, less his fees, to Wife.
On November 8, 1989, Children filed the present action against Wife, Attorney Coleman, his partner and their law firm, and Premier. The complaint pleaded a cause of action against all defendants, except Premier, for constructive trust and declaratory relief, seeking Children's intestacy share of the $100,000 settlement. The remaining cause of action, against all defendants, was for "tortious interference with succession rights." It sought damages caused by defendants' failure to inform Children of the insurance policy and settlement, and their failure to pay Children their share of the settlement.
The federal action proceeded. On November 20, 1989, a pretrial conference order was signed by counsel for all parties. That order
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