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Copper Mountain Inc. v. Poma of America Inc.2/6/1995
isclosed and hence is collusive. The element of secrecy is absent in the instant case, and there is no indication that even at the time Stubbs and Poma entered into the agreement, the parties intended to keep the agreement a secret.
Nor do we believe an inference of collusion may be drawn simply because the agreement was not voluntarily disclosed for over two months after it was executed. Although early disclosure might be preferred, neither party was under any duty or obligation to disclose the agreement immediately upon its execution and Copper never submitted a formal discovery request regarding the agreement. Additionally, there is evidence in the record that Stubbs and Poma reasonably believed that Copper was aware of the settlement, and Copper admits it understood that there was at least an informal understanding between Stubbs and Poma that Copper would be the focus of Stubbs' suit. When it became apparent that Copper was planning to pursue contribution against Poma, and thus did not know of the agreement or understand its implications, Stubbs' attorney promptly disclosed the agreement.
Finally, we do not believe the agreement was collusive based on the fact that it called for Poma to remain in the case and provide expert witnesses to defend against any claim that it was substantially at fault for Stubbs' injuries. Stubbs' attorney explained that Stubbs did not want to take on the additional burden of defending the product design case, believing that providing such a defense would encumber Stubbs' case and require resources Stubbs did not possess. There is nothing collusive in this conduct.
We thus conclude that the requisite "intent to injure" necessary to support a finding of collusion is not present in the instant case.
III
Having determined that the agreement in question was entered in good faith pursuant to ยง 13-50.5-105, we find it unnecessary to address the second issue on which certiorari was granted: whether the court of appeals erred in holding that a party challenging a settlement as not in good faith must establish actual prejudice as a result of the settling parties' collusion or fraud. Moreover, based on our resolution of issue one and our decision not to address issue two, we need not reach issue three -- whether the court of appeals erred in affirming the dismissal of petitioner's contribution claim prior to discovery.
IV
Because we find that a violation of the good faith requirement in section 13-50.5-105, 6A C.R.S. (1987), requires collusive conduct which was absent in this case, we affirm the judgment of the court of appeals upholding the trial court's order denying Copper's motion to realign the parties so that it may seek contribution and dismissing further proceedings.
Disposition
JUDGMENT AFFIRMED
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