Judge: Wesley L. Hsu, Case: 19STCV38477, Date: 2023-03-22 Tentative Ruling
Case Number: 19STCV38477 Hearing Date: March 22, 2023 Dept: L
Defendant/Cross-Complainant/Cross-Defendant Gurney
Trucking, Inc.’s and Cross-Defendant James Robert Hayes’ Motion for Determination
of Good Faith Settlement is GRANTED.
Background
Plaintiff Brian Anthony Lopez (“Brian”) alleges as follows: Brian sustained
injuries in a July 30, 2019 car crash.
On October 25, 2019, Brian filed a complaint, asserting causes of action
against James Robert Hayes (“Hayes”), Daniel Lopez (“Daniel”), Gurney Trucking,
Inc. (“GTI”) and Does 1-25 for:
1. Motor Vehicle
2. General Negligence
On July 7, 2020, GTI filed a cross-complaint, asserting causes of action
against Bendix Commercial Vehicle Systems, LLC (“Bendix”), Paccar, Inc.
(“Paccar”), Peterbilt Motors Company (“Peterbilt”), Jackson Group Peterbilt,
Inc. (“Jackson Group”) and Moes 1-10 for:
1. Indemnity
2. Contribution
3. Comparative Fault
4. Declaratory Relief
On August 31, 2020, Bendix filed a cross-complaint, asserting causes of
action against GTI, Hayes and Roes 1-25 for:
1. Implied/Equitable Indemnity
2. Contribution/Apportionment
3. Declaratory Relief
On September
18, 2020, this case was transferred
from Department 32 of the Personal Injury Court to this instant department.
On April 8, 2021, Daniel filed four
Amendments to Cross-Complaint, wherein Bendix was named in lieu of Roe 1,
Paccar was named in lieu of Roe 2, Peterbilt was named in lieu of Roe 3 and
Jackson Group was named in lieu of Roe 4.
On April 19, 2021, Daniel and Intervenor
Maria Morales Garcia (“Garcia”) filed a First Amended Cross-Complaint,
asserting causes of action against Hayes, GTI, Bendix, Paccar, Peterbilt,
Jackson Group and Roes 1-10 for:
1. Negligence
2. Products Liability
3. Loss of Consortium
4. Indemnification
5. Apportionment of Fault
6. Declaratory Relief
On April 20, 2021,
GTI and Hayes filed a “Notice of Intent to Enter Into Sliding Scale Settlement
Agreement with Plaintiffs and Cross-Complainants.”
On May 20, 2021,
Jackson Group filed a cross-complaint, asserting causes of action against
Hayes, GTI, Daniel, Paccar, Peterbilt, Bendix and Does 1-10 for:
1. Negligence
2. Equitable Indemnity
3. Contribution and Apportionment of Fault
On June 11, 2021, Brian
filed four Amendments to Complaint, wherein Bendix was named in lieu of Doe 1,
Paccar was named in lieu of Doe 2, Peterbilt was named in lieu of Doe 3 and
Jackson Group was named in lieu of Doe 4.
On July 12, 2021,
Peterbilt dismissed its first cause of action, with prejudice. On July 14,
2021, Jackson Group filed a “Notice of Withdrawal” of its first cause of action
in its cross-complaint.
On February 3, 2023,
GTI and Hayes filed a “Notice of Intent to Enter Into Sliding Scale Settlement
Agreement with Plaintiffs and Cross-Complainants.”
A Trial Setting
Conference is set for April 17, 2023.
Legal Standard
“Any party to an action in which it is alleged that two or
more parties are joint tortfeasors or co-obligors on a contract debt shall be
entitled to a hearing on the issue of the good faith of a settlement entered
into by the plaintiff or other claimant and one or more alleged tortfeasors or
co-obligators, upon giving notice in the manner provided in subdivision (b) of
Section 1005 . . .” (Code Civ. Proc., § 877.6, subd. (a)(1).)
“A determination by the court that the settlement was made
in good faith shall bar any other joint tortfeasor or co-obligor from any
further claims against the settling tortfeasor or co-obligor for equitable
comparative contribution, or partial or comparative indemnity, based on
comparative negligence or comparative fault.” (Code Civ. Proc., § 877.6, subd.
(c).)
“[T]he intent and policies
underlying section 877.6 require that a number of factors be taken into account
including a rough approximation of plaintiffs’ total recovery and the settlor’s
proportionate liability, the amount paid in settlement, the allocation of
settlement proceeds among plaintiffs, and a recognition that a settlor should
pay less in settlement than he would if he were found liable after a trial.
Other relevant considerations include the financial conditions and insurance
policy limits of settling defendants, as well as the existence of collusion,
fraud, or tortious conduct aimed to injure the interests of nonsettling
defendants. Finally, practical
considerations obviously require that the evaluation be made on the basis of information
available at the time of settlement.” (Tech-Bilt, Inc. v. Woodward-Clyde
& Associates (1985) 38 Cal.3d 488, 499.) Additionally,
“the trial court’s good faith determination must take into account the settling
tortfeasor’s potential liability for indemnity to a cotortfeasor, as well as
then settling tortfeasor’s potential liability to the plaintiff.” (Far West Financial Corp. v. D&S Co.
(1988) 46 Cal.3d 796, 816, fn. 16.) “If section 877.6 is to serve the ends of
justice, it must prevent a party from purchasing protection from its indemnification
obligation at bargain-basement prices.” (Long
Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th
865, 876.)
Additionally, “(1) . . . Tech-Bilt's good faith standard applies to
sliding scale agreements, (2) . . . to satisfy the statutory objective of a
fair apportionment of loss (i) the ‘consideration’ paid by a defendant who
enters into a sliding scale agreement must fall within the Tech-Bilt ‘ballpark’ and (ii) the
plaintiffs’ claims against the remaining defendants must be reduced by
the amount of the “consideration paid” by the settling defendant, (3) . . . any
unreasonable or bad faith conduct of the nonsettling defendants which impeded
the settlement process and led to the sliding scale agreement may be taken into
account in determining whether the agreement satisfies the ‘ballpark’ standard,
and (4) . . . any provision which purports to give a settling defendant a
“veto” over subsequent settlements is valid only if it is limited to
settlements which would leave the earlier settling defendant to bear more than
its fair share of liability for the plaintiff's damages.” (Abbott Ford, Inc.
v. Superior Court (1987) 43 Cal.3d 858, 886-887.)
The moving party’s initial evidentiary burden depends on
whether the good faith of the settlement is being contested. If the nonsettling
defendants do not oppose the motion on the good faith issue, a “barebones”
motion which sets forth the grounds of good faith, accompanied by a declaration
which sets forth a brief background of the case, is sufficient. (City of
Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)
When a motion for determination of good faith settlement is
contested, however, the moving party must make a more specific showing under
the Tech-Bilt factors. (Id. at 1261-62.) Such
a showing may be made either in the original moving papers or in
counter-declarations filed after the nonsettling defendants have filed an
opposition challenging good faith of the settlement. (Id. at 1262.) Where good faith is contested, the showing requires
competent evidence in support of “good faith.” (Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 834.)
“Once there is a showing made by the settlor of the
settlement, the burden of proof on the issue of good faith shifts to the
non-settlor who asserts that the settlement was not made in good faith.” (City of Grand Terrace, supra, 192
Cal.App.3d at 1262; Code Civ. Proc., § 877.6, subd. (d).)
Discussion
GTI and Hayes (“Settling Defendants”) move
the court for orders approving the settlement between Brian, Daniel, and
Garcia (collectively, “Settling Claimants”), on the one hand, and the Settling
Defendants on the other, and determining that the settlement reached is in good
faith, and barring any other joint tortfeasor or co-obligor from any further
claims against the settling tortfeasor or co-obligor for equitable comparative
contribution, or partial or comparative indemnity, based on comparative
negligence or comparative fault.
Procedural Defects
Preliminarily,
Settling Defendants failed to
comply with California Rules of Court (“CRC”) Rule 3.1382 (i.e., “[a] motion or
application for determination of good faith settlement may include a request to
dismiss a pleading or a portion of a pleading. The notice of motion or
application for determination of good faith settlement must list each party and
pleading or portion of pleading affected by the settlement and the date on
which the affected pleading was filed”).
The
court admonishes counsel for Settling Defendants in this regard.
Merits
The subject incident occurred on July 30, 2019 at
approximately 11:45 p.m. (McDermott Decl., ¶ 2, Exh. A.) Hayes was traveling on
the Southbound 605 freeway in the El Monte neighborhood of East Los Angeles. (Id.)
Claimants Brian and Daniel were also traveling on the Southbound 605 freeway in
the El Monte neighborhood of East Los Angeles, initially in the far left lanes
of the freeway. (Id.) Brian and Daniel started merging across multiple lanes
of traffic in order to reach the far-right shoulder. (Id.) As Brian and
Daniel merged into the far-right lane on the Southbound 605 freeway, Hayes
approached and struck one or both of their vehicles. (Id.) Brian and
Daniel each allege that Hayes negligently drove his truck into both of their
vehicles. (Id., ¶¶ 5 and 12, Exhs. D and I.)
On October 25, 2019, Brian
filed a complaint against Hayes, Daniel and GTI for Motor Vehicle and General
Negligence. (Id., ¶ 12, Exh. I.) On July 7, 2020, GTI filed an indemnity cross-complaint against Bendix,
Paccar, Inc., Peterbilt and Jackson Group. (Id., ¶ 13, Exh. J.) On
August 31, 2020, Bendix filed an indemnity cross-complaint against GTI and
Hayes. (Id., ¶ 14, Exh. K.) On April 8, 2021, Daniel substituted Bendix,
Paccar, Peterbilt and Jackson Group in lieu of Roes 1-4 to his cross-complaint.
On April 19, 2021, Daniel and Intervenor Maria filed a First Amended
Cross-Complaint (“FACC”) against Hayes, GTI, Bendix, Paccar, Peterbilt and
Jackson Group for Negligence, Products Liability, Loss of Consortium, Indemnification,
Apportionment of Fault and Declaratory Relief. (Id., ¶ 5, Exh. D.) On
May 20, 2021, Jackson Group filed an indemnity cross-complaint against Hayes,
GTI, Lopez, Paccar, Peterbilt and Bendix. (Id., ¶ 15, Exh. L.)
On February 3, 2023,
GTI and Hayes filed a “Notice of Intent to Enter Into Sliding Scale Settlement
Agreement with Plaintiffs and Cross-Complainants.” (Id., ¶ 22, Exh. M.) The
instant motion was filed on February 14, 2023.
1.
Settlement Terms
Settling Defendants and Settling Claimants have entered into a
sliding scale settlement whereby Settling Claimants have collectively agreed to
receive a payment of $3,000,000.00 (allocated $30,000.00 to Brian and $2.97
million to Daniel and Garcia) in exchange for dismissal of Brian’s complaint
and Daniel’s/Garcia’s FACC. (Id., ¶¶ 16 and 20).
Settling Defendants have agreed to pay $3,000,000.00 and then will
apply sliding scale “Mary Carter” terms to any recovery from the non-settling
cross-defendants by either or both of the Settling Claimants or Settling
Defendants. (Id.) Settling Defendants and Settling Claimants will each
individually incur the costs of pursuing their remaining claims against the
non-settling cross-defendants; if either or both of Settling Defendants and
Settling Claimants reach a settlement with or obtain a judgment against the
non-settling cross-defendants, the settling parties are entitled to first
recover their costs and expenses (not including attorneys’ fees from any such
proceeds) and the settling parties will thereafter split the remaining proceeds
50/50 from any such settlement/judgment. (Id., ¶ 17.) Settling
Defendants’ share of the settlement or judgment proceeds from the non-settling
cross-defendants will not be more than $3 million, exclusive of recoverable
costs; this is a “net zero” settlement where there is no possibility Settling
Defendants will obtain a profit via this settlement (Id., ¶ 18.)
Additionally, neither Settling Defendants nor Settling Claimants have been
granted any veto power in the agreement as to any settlements subsequently
reached with the non-settling cross-defendants and the Settlement Claimants and
Settling Defendants agree to make themselves available to participate at trial
to verdict unless both of the parties reach a settlement with the non-settling
cross-defendants (Id., ¶ 19.)
2. Application of Tech-Bilt Factors
A. Rough Approximation of Settling Claimants’ Total Recovery
In addressing the rough approximation of plaintiff’s
recovery, Settling Defendants advise that Daniel seeks damages for past and
future medical expenses, past and future loss of earnings, property damage and
general damages. (Id., ¶ 5, Exh. D.) Settling Defendants represent
that Daniel’s medical specials currently amount to $3,403,198.67 (Id., ¶
28, Exh. R), that his past loss of earnings amounts to approximately
$168,000.00 as of February 2023 (Id., ¶¶ 6 and 7, Exhs. E [i.e., Resp.
to No. 8.4] and F [i.e., 17:17-18:6, 18:24-19:1, 20:14-16]), and that he seeks
lifetime future earnings of approximately $1.2 million based on his life
expectancy (Id., ¶ 6, Exh. E [i.e., Resp. to No. 8.8]). Following the
incident, Daniel was taken to LAC-USC Medical Center for head and brain trauma,
and lacerations to the back of his head and left calf. (Id., ¶ 26, Exh.
P.) Daniel was diagnosed with (1) right subdural hematoma with midline shift;
(2) right frontal intraparenchymal hemorrhage; (3) compression
fracture of the T4 thoracic spine; (4) right rib fractures 1, 3-5 with trace
right pneumothorax; (5) right upper lobe pulmonary contusion with trace
pneumomediastinum; (6) left psoas hematoma with adjacent hematoma near left
renal hilum; (7) right intrahepatic hematoma; and (8) posterior left lower leg
laceration. (Id.)
Daniel received a right decompressive hemicraniectomy for
right subdural hematoma evacuation on July 31, 2019. (Id.) After leaving LAC-USC, Daniel went in and out
of a nursing home due to complications resulting from infections. (Id.,
¶ 7, Exh. F [i.e., 41:5-23].) Garcia and Brian subsequently took Daniel home,
where they care for him full-time. (Id. [i.e., 45:9-13].) Daniel had a
trach tube replaced in June 2021 and is on oxygen. (Id. [i.e., 45:17-46:12
and 51:7-12.) His condition has improved “very little” since June 2021, but he
is able to open his eyes and move his hand and right arm. (Id. at pp.
54:21-55:2 and 56:6-8).
Settling Defendants
represent that Daniel continues to receive physical therapy and occupational
therapy, that he continues to treat with a neurologist and trachea specialist and
that he receives services from Rancho Los Amigos 1-2 times/month for services
such as speech therapy, eating therapy and trach and feeding tube checks. (Id.,
¶¶ 7 and 10, Exhs. F [i.e., 50:8-13, and 51:20-52:15] and H [i.e., 9:20-10:16
and 45:3-47:13].) Daniel has not returned to the hospital or received any surgeries
since 2021. (Id., ¶ 10, Exh. H [i.e., 43:10-44:4].)
Paragraph 11 of Brian’s complaint reflects that he seeks
wage loss, loss of use of property, hospital and medical expenses, general
damages, property damages and loss of earning capacity. (Id., ¶ 12, Exh.
I.) Brian suffered small cuts to his right hand and complained of pain to his
chest and both arms immediately following the accident. (Id., ¶ 27, Exh.
Q.) He was transported to Kaiser Permanente in Baldwin Park, but left with the
hospital’s permission before being fully admitted. (Id.) Brian then
sought treatment three days after the accident and received diagnoses of acute
post-traumatic headache, sprain/strain to parts of his lumbar spine and pelvis,
sprain of joints/ligaments in the neck, insomnia, cervical radiculopathy,
sprain to parts of the thorax, anxiety disorder, and jaw pain. (Id.) The
x-rays and MRIs Brian received immediately after the crash, though, all came
back normal and without signs of any acute fracture. (Id.) The MRI of
the lumbar spine showed only degeneration of the T11-T12 discs. (Id.) At
his August 19, 2019 neurosurgical evaluation, Brian was diagnosed with (1)
unspecified injuries of the left shoulder, upper arm, right ankle, and right
elbow; (2) sprain of ligaments of the lumbar spine; (3) muscle spasm of the
back; (4) sprain of unspecified parts of the thorax; (5) other muscle spasms;
and (6) sprain of joints and ligaments of unspecified parts of the neck. (Id.)
Although Brian informed the neurologist at this evaluation that he did not have
any prior symptoms or treatment to his neck, back or extremities, his medical
records reflect that he underwent surgery in 2017 to remove a bullet from a
gunshot wound in his neck. (Id.)
Brian attended physical therapy, acupuncture, chiropractic
treatment, and an orthopedic consultation, and received injections. (Id.,
¶¶ 9 and 27, Exhs. G [i.e., Resp. to No. 6.4] and Q). Settling Defendants
represent that Brian’s medical specials amount to $83,363.41 (Id., ¶ 29,
Exh. S) and that his lost income claim up to May 2021 (during which time he
procured employment working as a home-care provider for Daniel) is
approximately $44,250.00. (Id., ¶¶ 9 and 10, Exhs. G [i.e., Resp. to No.
8.4] and H [i.e., 8:14-9:12].) Further, while Brian still claims pain in his
back, neck, shoulders and arms (Id., ¶ 10, Exh. H [i.e., 18:15-23:14]),
he is not treating nor does he have any plans to treat (Id.)
Garcia was not involved in the accident. She seeks loss of
consortium damages. (Id., ¶ 5, Exh. D, ¶¶ 40-43.) Garcia claims that she
has been seeing a psychologist/therapist to avoid becoming depressed (Id.,
¶ 7, Exh. F [i.e., 56:14-19]), but she has not been diagnosed with a mental
condition by a mental health professional (Id. [i.e., 58:4-9].)
Settling Defendants advise that none of Settling Claimants
can collect non-economic damages pursuant to Civil Code § 3333.4.[1] They
advise that Brian was not insured at the time of the accident (Id., ¶¶ 2
and 9, Exhs. A and G [i.e., Resp. to No. 4.1]) and that, while Daniel had applied
for insurance prior to the accident (Id., ¶ 11), the insurance
policy was not in place at that time (Id.).
Bendix makes much of the fact that Daniel seeks over $80
million in his Statement of Damages (Martinez Decl., ¶ 4, Exh. 2); however, a
review of same reflects that the $80 million set forth therein is purely
non-economic damages, which appear to be precluded by Civil Code § 3333.4 as
set forth above.
Bendix next speculates that “[a] jury verdict of $8-10
million in this case is not outlandish” (Opp., 13:25); even if true, however, the
instant settlement represents 30-38% of this amount.
B. Settling Defendants’ Proportionate Liability
In addressing proportionate liability, Settling Defendants assert
that Settling Claimants’ slow speeds[2] caused
the subject accident, in that they were well below the applicable speed limit
of 65 mph for passenger vehicles on California highways as set forth in Vehicle
Code § 22349, subdivision (a). Bendix fails to dispute Settling Claimants’
contributory negligence.
Settling Defendants further assert that any fault attributed
to Settling Defendants must be reduced commensurate with the liability arising
from Bendix’s allegedly defective system. “[A] product is defective in design
if it fails to perform as safely as an ordinary consumer would expect.” (Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 562.) The subject
tractor driven by Hayes was equipped with version 1.0 of a Bendix Wingman
Fusion collision mitigation system (“System”). (McDermott Decl., ¶ 31, Exh. U.
[i.e., 19:24-20:8].) The Bendix Wingman Fusion Operator’s Manual claims that the
System will engage the foundational brakes when a collision is “likely to occur,”
that it is capable of braking up to 3.5 seconds before impact under certain
circumstances and that the range of the radar on the system is approximately
500 feet. (Id., ¶ 4, Exh. C, pp. 14 and 17)[3].
In addition to automatic braking, the System will issue an
“impact alert” warning to drivers prior to initiating a request for automatic
braking. (Id., ¶ 30, Exh. T [i.e., 54:17-18]). The automatic braking
will not be requested by the System until the warning has been active for at
least 0.5 seconds, but Bendix does not inform consumers of this fact. (Id.,
¶¶ 30 and 32, Exhs. T [i.e., 54:17-56:16] and V [i.e., 249:11-21].) The System,
moreover, could be “tune[d]” to have the impact alert and the collision
mitigation activated simultaneously. (Id., ¶ 30, Exh. T [i.e.,
56:9-16].) The fact that it was not so “tuned” appears to be an intentional
design choice.
The System is also advertised to be capable of assisting
with “side-swipe” incidents (Id., ¶ 31, Exh. U [i.e., 29:6-19].)
However, the System does not actually provide an ability to mitigate against
sideswipe accidents where the vehicle is never in the same lane as the host
vehicle; rather, it assists only with vehicles directly in the lane ahead of
the truck driver. (Id. [i.e., 30:10-22].) Bendix’s advertising, then, appears
to mislead consumers to believe that the System will function where a car cuts
off or merges in front of a commercial vehicle.
Here, Brian and Daniel entered the lane ahead of Hayes
approximately four seconds prior to impact. (Id., ¶ 2, Exh. A; Arst
Decl., ¶ 6.) Approximately 3 seconds before impact, data from the Safety Direct
Processor (“SDP”) from the System shows that Hayes’ tractor recognized a
vehicle that was approximately 177 feet ahead, even though the System is
advertised to be capable of recognizing objects in the road ahead at least 500
feet away. (Arst Decl., ¶¶ 11(a) and 16; McDermott Decl., ¶ 24, Exh. N.) At
approximately 2.5 seconds prior to impact, the System issued an impact
alert/warning. (Arst Decl., ¶ 11(b); McDermott Decl., ¶ 24, Exh. N.) At
approximately 2 seconds prior to impact, the System requested application of
the autonomous braking; this was up to 1.5 seconds less than the 3.5 seconds of
braking advertised by Bendix. (Arst Decl., ¶¶ 11(d) and 14); McDermott Decl., ¶
24, Exh. N.) At approximately 1.75 seconds prior to impact, Hayes requested the
brakes himself. (Arst Decl., ¶ 11(e); McDermott Decl., ¶ 24, Exh. N.)
Additionally, the SDP data points only reflect concurrent
quarter-second snapshots and thus show events which could have occurred at any
point in the preceding quarter-second. (McDermott Decl., ¶¶ 24 and 33, Exhs. N and
W [i.e.., 169:2-175:10]). The System’s request for braking, then, may have come
as little as 0.01 seconds before Hayes applied the brakes on his own. (Arst
Decl., ¶ 15.) An automatic braking system that applies the brakes at
essentially the same time as a driver does not provide any meaningful safety
enhancement.
Mechanical engineer Jason Arst (“Arst”) represents that the
System first recognized a vehicle when it was 177 feet ahead (i.e., rather than
the 500 feet stated in the Manual), which was 3 seconds prior to impact. (Arst
Decl., ¶ 16). Arst further represents he has run simulations based on the
information provided on the subject impact in the SDP report and on his
inspection and measurements of the roadway where the accident occurred. (Arst
Decl., ¶ 12). Arst took the approximate rate of change in velocity of Hayes’
truck shown in the data contained in the SDP report and then extended that
decleration rate over the time period of 3 seconds and 3.5 seconds. (Id.,
¶ 13.) Arst concluded that, in the case of braking either 3 or 3.5 seconds
prior to impact, the subject collision would not have occurred based on
Daniel’s speed and trajectory to the far right shoulder. (Arst Decl., ¶ 12.) If
the System had automatically engaged the brakes when it first saw the vehicles
ahead 3 seconds prior to the impact, the collision could have been avoided. Bendix
has not presented any evidence to dispute Arst’s opinions.
Further, while Bendix asserts that “this collision was
caused entirely by Hayes’ error and inattentiveness” (Opp. 4:13-14),
referencing the Traffic Collision report and the Bendix Data Recorder Report as
to his “excessive speed,” mechanical engineer and certified human factors
professional Michael J. Kuzel (“Kuzel”) has opined, based upon the dash cam
video, Brian’s deposition transcript, SDP data and the Traffic Collision
report, that “given the placement and speed of the vehicles of Daniel and Brian
Lopez and the standard perception-reaction time of a reasonable driver, the
subject impact was unavoidable,” that “Hayes’ perception-reaction time was
approximately 0.75 seconds,” that “even if Hayes did not recognize the impact
warning provided,. . . [his] perception-reaction time was reasonable under the
circumstances,” that “[his] speed had no impact on his perception-reaction
time” and that “[i]nstead, the speed of the Lopez vehicles traveling ahead of
Hayes made it impossible for [him] to react in time to prevent this incident.”
(Kuzel Decl., ¶¶ 8-10). Bendix has not presented any evidence to dispute
Kuzel’s opinions.
C. Amount Paid in Settlement and Allocation of
Settlement Proceeds
Again, Settling Defendants have agreed to pay $3,000,000.00
(sliding scale) to Settling Claimants. The settlement is allocated $30,000.00
to Brian and $2.97 million to Daniel and Garcia. (McDermott Decl., ¶¶ 16 and
20).
D. Insurance Policy Limits of Settling
Defendants
The Settling Defendants are paying the entirety of their available
insurance policies. (Id., ¶ 20.)
E. Existence of Collusion
There is no evidence of collusion, fraud or tortious conduct
between Settling Defendants and Settling Claimants.
F.
Potential Liability for Indemnity
Bendix has not produced evidence of any additional exposure
from any indemnity liability.
3. Application of Abbott
The Tech-Bilt
factors have been addressed above. Further, on November 8, 2022, all parties
attended mediation. (McDermott Decl., ¶ 21.) Jackson Group has settled with
Settling Claimants; however, Bendix had not made any offer whatsoever, to date.
(Id.) “[A] court can give recognition to the positive role sliding scale
agreements may have in deterring unreasonable nonparticipation in settlement
negotiations.” (Abbott Ford, Inc., supra, 43 Cal.3d at 882.) Finally, the
Settlement Agreement in issue provides for no veto power to any party. (McDermott Decl., ¶ 19.)
Conclusion
The court determines that the settlement agreement entered
into between Settling Defendants and Settling Claimants was made in good faith.
Bendix has not shown “that the settlement is so far ‘out of the ballpark’ as to
be inconsistent with the equitable goals of section 877.6” (Long Beach
Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th
865, 873). The motion is granted.
[1]
Civil Code § 3333.4 reads as follows:
(a) Except as provided in subdivision (c), in any action to recover
damages arising out of the operation or use of a motor vehicle, a person shall
not recover non-economic losses to compensate for pain, suffering,
inconvenience, physical impairment, disfigurement, and other nonpecuniary
damages if any of the following applies:
(1) The injured person was at the time of the accident operating
the vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was
convicted of that offense.
(2) The injured person was the owner of a vehicle involved in the
accident and the vehicle was not insured as required by the financial
responsibility laws of this state.
(3) The injured person was the operator of a vehicle involved in
the accident and the operator can not establish his or her financial
responsibility as required by the financial responsibility laws of this state.
(b) Except as provided in subdivision (c), an
insurer shall not be liable, directly or indirectly, under a policy of
liability or uninsured motorist insurance to indemnify for non-economic losses
of a person injured as described in subdivision (a).
(c) In the event a person described in paragraph (2) of subdivision
(a) was injured by a motorist who at the time of the accident was operating hir
or her vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and
was convicted of that offense, the injured person shall not be barred from recovering
non-economic losses to compensate for pain, suffering, inconvenience, physical
impairment, disfigurement, and other nonpecuniary damages.”
[2]
The traffic report states that Brian and Daniel were traveling at approximately
10-15 mph, whereas Brian testified that they were traveling between 15-20 mph.
(McDermott Decl., ¶¶ 2 and 3, Exhs. A and B [i.e., 78:14-17].)
[3]
Settling Defendants failed to include page 14 of Exhibit C in their motion;
however, this was attached as Exhibit 12 to the Declaration of Robert R.
Martinez filed concurrently with Bendix’s opposition. Page 14 provides that
“[i]f a collision is likely to occur the System can provide a warning and/or
apply the vehicle brakes” and that “[a]n alert may be issued up to three and
one-half (3.5) seconds prior to impact, which would suggest that it is also
capable of applying braking at such time.