Kirk Martin, et al. v. Roxanne Doree
Case No: 17CV030761
Hearing Date: Tue Apr 16, 2019 9:30

Nature of Proceedings: Motion Contest Good Faith Settlement

Motion to Contest Application for Determination of Good Faith Settlement

ATTORNEYS:

Mark O. Hiepler for Plaintiffs Kirk Martin and Randee Martin

Marjorie Motooka for Defendant and Cross-Complainant Roxanne Doree

Eric J. Stenberg and Michael A. Kruppe for Cross-Defendants Jonathan Lisowski and

Jessica Roth

RULING: The motion of defendant and cross-complainant Roxanne Doree contesting the application for determination of good faith settlement of cross-defendants Jonathan Lisowski and Jessica Roth is denied. The Court finds that the settlement between plaintiffs Kirk Martin and Randee Martin and cross-defendants Jonathan Lisowski and Jessica Roth was made in good faith, barring all present and/or future claims against Lisowski and Roth for indemnity, contribution, and/or declaratory relief. The Court has the proposed order and intends to sign it.

BACKGROUND:

This is a personal injury action. On April 11, 2017, plaintiff Kirk Martin (“Martin”) was riding his motor scooter on Modoc Road, west of Hollister Avenue in Goleta, when an unleashed dog owned by defendant Roxanne Doree (“Doree”) ran into the street in front of him. Martin swerved his scooter to avoid colliding with the dog, but lost control and crashed, fracturing his right elbow. Five months later, on September 4, 2017, Martin was involved in another motor scooter crash when his scooter collided with a vehicle operated by cross-defendant Jonathan Lisowski (“Lisowski”) and owned by defendant Jessica Roth (“Roth”). Martin suffered injuries in the second incident that were similar to the first incident, including a fractured right elbow. Martin claims that he has developed tremors in his right arm as a result of the incidents.

On July 7, 2017, Martin and his spouse, plaintiff Randee Martin (“Randee”), filed their complaint against Doree for negligence and loss of consortium. Doree subsequently cross-complained against Lisowski and Roth for total indemnity, implied partial indemnity, and equitable apportionment of fault due to the second incident. Doree contends that Lisowski and Roth are partly, or possibly primarily, responsible for Martin’s residual complaints.

Martin and Randee recently settled their personal injury and loss of consortium claims arising from the second incident involving Lisowski and Roth for their policy limits of $30,000 in exchange for a full and final release of all claims and demands. On March 13, 2019, Lisowski and Roth filed their application for determination of good faith settlement. On March 18, 2019, Doree filed the within motion, contesting Lisowski and Roth’s application for determination of good faith settlement.

ANALYSIS:

Code of Civil Procedure Section 877.6, subdivision (a)(2), provides in relevant part:

“[A] settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. . . . Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. . . .”

Section 877.6 further provides:

“(b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.

“(c) 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.

“(d) The party asserting the lack of good faith shall have the burden of proof on that issue.”

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the California Supreme Court outlined the factors for determining whether a settlement is in good faith. These factors include the plaintiff’s potential recovery, the amount of the settlement, the settling defendant’s proportionate share of liability, and a recognition that a settlor should pay less in settlement than it would if it were found liable after a trial. Id., at 499. Other relevant considerations include the financial condition and insurance policy limits of the settling defendant, as well as the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of the nonsettling defendants. Ibid. A party asserting the lack of good faith has the burden of proof on that issue and must demonstrate that the settlement “is so far out of the ballpark in relation to these factors as to be inconsistent with the equitable objectives of the statute.” Ibid.

On March 13, 2019, Lisowski and Roth filed their application for determination that their settlement with plaintiffs in the amount of $30,000 was made in good faith. Doree opposes the settlement, arguing that it is disproportionate to cross-defendants’ potential exposure in the action given their significant responsibility for plaintiffs’ injuries. In the second incident involving Lisowski and Roth, plaintiff suffered “road rash, sore muscles, cracked ribs, cracked collarbone, and broken right elbow.” (Motooka Dec., ¶5, Ex. A, Martin Deposition, p. 116:16-18.) On November 2, 2017, Martin was seen by Dr. Helen Young, a neurologist with the Sansum Clinic, with complaints of intermittent “shakiness [in] his handwriting.” (Motooka Dec., ¶6, Ex. B, p. 1.) Martin continues to complain of ongoing pain and tremors in his right hand and, because the proposed settlement would bar Doree’s claims for indemnity and/or contribution, Doree contends that the settlement is not in good faith under Tech-Bilt.

As an aside, this Court questions whether the cross-complaint for indemnity and apportionment of fault filed by defendant Doree should have been brought in this case since Doree, Lisowski, and Roth are successive tortfesors, not joint tortfeasors. As such, the settlement between plaintiffs Kirk Martin and Randee Martin and cross-defendants Jonathan Lisowski and Jessica Roth is not the proper subject of a Section 877.6 good faith settlement determination. The statute plainly states that it is only intended to apply to actions “in which it is alleged that two or more parties are joint tortfeasors.” Code Civ. Proc. §877.6, subd. (a)(1). Here, Doree is the sole tortfeasor allegedly responsible for the incident that took place on April 11, 2017, while Lisowski and Roth are the sole tortfeasors allegedly responsible for the September 4, 2017, incident. They are separate torts. While it is an open question whether the first or second incident was the cause, or primary cause, of Martin’s current complaints, that is a matter of causation, to be determined by medical experts, not joint liability.

That being said, defendant Doree’s cross-complaint has never been challenged and on March 13, 2019, following their settlement with plaintiffs, Lisowski and Roth filed their application for determination of good faith settlement. Because Doree contests the application, the Court will address the merits.

Doree contends that cross-defendants’ application provides insufficient information to determine whether the $30,000 settlement falls within the reasonable range of good faith settlements contemplated by Tech-Bilt. Recently, Martin made a $1.3 million settlement demand against Doree (Motooka Dec., ¶8) for injuries suffered in the incident involving Doree’s dog, yet Doree contends that Martin’s September 4, 2017, motor scooter accident involving Lisowski caused significantly more injuries than the $30,000 settlement and is not within the “ballpark” for fractured ribs, a broken collarbone, and a broken right elbow. In Tech-Bilt, the Supreme Court adopted a “reasonable range” test in order to determine whether a settlement was in good faith. The Court stated:

“A more appropriate definition of ‘good faith,’ in keeping with the policies of American Motorcycle and the statute, would enable the trial court to inquire, among other things, whether the amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional share of comparative liability for the plaintiff’s injuries.” Id., at 499.

The Court disagrees with Doree’s assessment, as her reading of Tech-Bilt is too narrow. The Supreme Court in that case made it clear that there are a number of factors to be taken into account in determining good faith, apart from the settling tortfeasor’s proportionate liability, including a recognition that a settling party should pay less in settlement than he or she would if found liable at trial, the financial condition and insurance policy limits of the settling defendant, as well as the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of nonsettling defendants. Specifically, on the issue of the settling tortfeasor’s proportionate share of liability for the plaintiff’s injuries and damages, the Court stated:

“This is not to say that bad faith is established by a showing that a settling defendant paid less than his theoretical proportionate or fair share. [Citation.] Such a rule would unduly discourage settlements. For the damages are often speculative, and the probability of legal liability therefor is often uncertain or remote. And even where the claimant’s damages are obviously great, and the liability therefor certain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.” Ibid. (internal quotes omitted; italics added).

Finally, the Court noted that a rule that looked solely to the settling defendant’s proportionate liability would subvert the intent of Section 877.6 since it would “convert the pretrial settlement approval procedure into a full-scale minitrial.” Ibid. Here, the $30,000 settlement with plaintiffs is the full amount available from cross-defendants’ insurance policy, which is limited to $15,000 per injured person and $30,000 per accident. (Lisowski Dec., ¶1.) Apart from his insurance, Lisowski has no meaningful assets to contribute to the settlement. (Lisowski Dec., ¶2.) He works full time as a production assistant and makes approximately $3,250 per month, before taxes. (Lisowski Dec. ¶6.) He shares an apartment and pays $1,300 per month in rent and has approximately $2,000 in the bank. (Lisowski Dec., ¶¶ 5, 7.) He does not own any real property and has no significant holdings of stocks or bonds. (Ibid.)

Given the realities of the case, and the fact that there is no evidence that the settlement was obtained through collusion, fraud, or for the purpose of injuring any other party to the action, the Court will deny Doree’s motion contesting the $30,000 settlement between plaintiffs Kirk Martin and Randee Martin and cross-defendants Jonathan Lisowski and Jessica Roth. The Court finds that the settlement was made in good faith, thus barring all present and/or future claims against Lisowski and Roth for indemnity, contribution, and/or declaratory relief.