 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Vaillette v. Fireman's Fund Insurance Co.8/31/1993
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT DISTRICT, DIVISION THREE
No. G012152.
1993.CA.42587 ; 18 Cal. App. 4th 680; 22 Cal. Rptr. 2d 807
Decided: August 31, 1993.
DAVID A. VAILLETTE, PLAINTIFF AND APPELLANT,
v.
FIREMAN'S FUND INSURANCE COMPANY, DEFENDANT AND RESPONDENT.
Superior Court of Orange County, No. 650765, Ronald L. Bauer, Judge.
Larry L. Curran for Plaintiff and Appellant.
Haight, Brown & Bonesteel, Roy G. Weatherup, Denis J. Moriarty and Ronald B. Axelrod for Defendant and Respondent.
Opinion by Sonenshine, J., with Sills, P. J., and Wallin, J., Concurring.
Sonenshine
David A. Vaillette appeals from a judgment of dismissal of his breach of contract/bad faith/fraud action against Fireman's Fund Insurance Company (Fireman's Fund). The case was dismissed after the court sustained the insurer's demurrer to Vaillette's second amended complaint without leave to amend.
The appeal presents the following issue: When an insurer pays a plaintiff policy limits and the plaintiff covenants not to execute on any judgment against the insured or to assert any further claim arising out of the subject incident, may the plaintiff subsequently recover from the insurer costs of suit, including statutory attorney fees? The answer is no. The subject agreement is not amenable to any reasonable interpretation that would allow the plaintiff to seek further compensation of any nature from the insurer.
FACTUAL AND PROCEDURAL BACKGROUND
In March 1984, Vaillette was rendered a quadriplegic and his passenger, James Downing, was killed when a drunk driver, Hugh Robinson, crashed his limousine into the rear end of Vaillette's vehicle. Vaillette sued Robinson and numerous other defendants. On March 31, 1986, one of Robinson's insurers, Fireman's Fund, agreed to pay Vaillette $1 million in exchange for Vaillette's covenant not to execute on any potential judgment or prosecute against the insured or insurer any further claim arising from the accident.
Because we must construe the effect of the 14-page document, we set out its relevant terms at considerable length. The agreement provides:
(1) "This Agreement for Policy Payment and Covenant Not to Execute . . . is entered into between David A. Vaillette . . . and all of the Insureds of [certain] Fireman's Fund Insurance policies . . . and Fireman's Fund Insurance Companies."
(2) "The Policy was in full force and effect at all relevant times . . . covering the liability of the Insureds . . . for a total of One Million, One Hundred Thousand Dollars . . . which coverage is the subject of this Agreement. Upon completion of this Agreement the Policy funds available for distribution will be exhausted. . .."
(3) " ursuant to agreement by counsel for all parties, the sum of Fifty Thousand Dollars . . . was 'advanced' by and through Fireman's Fund Insurance Companies under the Policy to Vaillette."
(4) "On or about March 13, 1986, a hearing concerning the available funds under the Policy was held . . . for the specific purpose of allocating the funds available under the policy between Vaillette and the Downing heirs, . . . and as a result of the recommendation of the [Judge] Vaillette has and does accept the sums herein specified and the Downing heirs jointly have agreed to accept the sum of One Hundred Thousand D
Page 1 2 3 4 5 6 7 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|