Case Number: PC053375    Hearing Date: April 25, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ANAHID SARKISSIAN AND ARAM SARKISSIAN,
Plaintiff(s),
vs.

JAMES DEAN, ET AL.,

Defendant(s).

Case No.: PC053375

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Dept. 92
1:30 p.m. – #27
April 25, 2014

Defendant/Cross-Complainant, James Dean’s Motion for Summary Judgment is granted. Defendant has met his burden of establishing that there is no merit to Plaintiff’s claim for personal injury because defendant has an absolute defense based on his affirmative defense of compromise settlement. Plaintiff has not shown any evidence that there is a disputed fact as to whether the settlement exists. The motion for summary judgment is granted.

1. Background Facts
Plaintiffs, Anahid and Aram Sarkissian filed this action against Defendant, James Dean for damages arising out of an automobile accident allegedly caused by Defendant James Dean. Plaintiff sets forth causes of action for Motor Vehicle Negligence.

Defendant moves for summary judgment on the grounds that there is no merit to plaintiff Anahid Sarkissian’s claim for personal injury because defendant has an absolute defense based on his affirmative defense of compromise settlement.
In opposition, Plaintiff argues that Defendants alleged acceptance of the 998 offer was invalid because it was not signed by counsel for defendant, not communicated in the manner prescribed by the offer; and the acceptance was not absolute and unqualified.
Defendant in reply argues that the essential terms to the settlement were agreed upon, the acceptance was unequivocal, and the acceptance was not invalid without defendant’s attorney signature.

Standard
Code of Civil Procedure section 437c states in pertinent part:
“The motion for summary judgment shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. .”

This action arises out of a two-vehicle accident that occurred April 28, 2012. (SS#1) Aram Sarkissian was driving his Mercedes with his wife Anahid Sarkissian as his front seat passenger. (SS#2) Defendant James Dean was driving his Nissan. The two vehicles collided on Balboa Boulevard. (SS#3) On January 8, 2013, Anahid Sarkissian (hereinafter “plaintiff”) served by mail a CCP section 998 statutory offer to settle her claims against James Dean in the amount of $50,000. (SS #4- disputed only as to the inclusion of the fact that this was the total per-person policy limit under defendant’s Mercury Insurance liability policy.) On February 11, 2013, plaintiff’s counsel wrote to Mercury Insurance acknowledging receipt of defendant’s February 5, 2013 letter ‘tendering’ the $50,000 policy limits per plaintiff’s ‘Statutory Offer.’ (SS #7) On February 25, 2013, plaintiffs counsel wrote to Mercury Insurance again acknowledging receipt of the February 5, 2013 letter, but stating that Mercury’s tendering of policy limits was rejected because plaintiffs statutory offer to settle expired February 7, 2013, and per CCP section 998(b)(1), “your counsel” was to accept the offer by signing and returning the Statutory Offer pleading. (SS#9) Defendant’s motion to supplement his answer to add the affirmative defense of compromise settlement was granted on July 24, 2013. Defendant’s supplemental answer was filed and deemed served on July 24, 2013. (SS #10)
On February 5, 2013, within the 30 day time limit, defendant’s liability insurer wrote and mailed to plaintiff’s counsel a letter accepting Anahid Sarkissian’s January 8, 2013 offer to settle stating: “We are in receipt of your Statutory Offer to Compromise and Settle wherein you demand $50,000.00 to settle each of your clients’ injury claims. In regards to Anahid Sarkissian, we hereby tender our insured’s single Bodily Injury limit of $50,000.00 in order to settle her injury claim.” (SS #5) Plaintiffs offer with proof of acceptance was filed with the court on January 21, 2014, with a request that the clerk or the judge enter judgment accordingly. (SS #11). A true and correct specimen of the Mercury Insurance liability policy that provided coverage to James Dean on April 28, 2012 is attached as Exhibit B to the declaration of Scott Hendy. (SS #12) The Mercury liability policy provides Mercury Insurance with the sole power and authority to settle covered claims against Mr. Dean within his bodily injury policy limits of $50,000 per person. (SS #13).

Enforcement of a settlement without Defense counsel’s signature
Plaintiff contends that the settlement is unenforceable because it was never signed by defendant’s counsel, citing to Perez v. Torres (2012) 206 Cal.App.4th 418, 425, for the proposition that the strict requirements of section 998 must be abided to whether a party is represented by counsel or not. In Perez, the court held that a section 998 offer was invalid because it did not contain an acceptance provision. Here, there is no question whether the offer was valid. The issue here is with respect to the acceptance.
The first issue is whether the insurance carrier had the authority to sign the settlement. The
insurance carrier’s signature is sufficient since it was providing a defense without reservation of rights and with adequate coverage limits because in such cases the defendant has no personal liability at stake. See Cal Practice Guide, Civil Procedure Before Trial, Chapter 12(ii)-f- 12:959 discussing motions to enforce settlement under CCP 664.6. “The insurance carrier (but not defense counsel) has the power to settle on defendant’s behalf and its signature on the settlement agreement suffices for purposes of section 664.6, the defendant’s signature would be superfluous and is not required.” Fiege v. Cooke (2004) 125 Cal.App.4th 1350, 1353-1355; Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1295-1296.
In Fiege v. Cooke, supra, Fiege sued defendants for personal injuries arising from an auto accident. Defendants were all insured under policies that gave the insurers the right to settle without the defendants’ consent and to bind the defendants to the settlement. The insurers and plaintiff agreed to settlement at a settlement conference. The defendants were not present nor did they stipulate in writing to the settlement. Id. at 1353. Fiege later sought to escape from the settlement on the ground defendants did not sign the settlement agreement. Defendants successfully moved to enforce settlement under CCP section 664.6. The Fiege court “quoting extensively from” Robertson v. Chen, supra, affirmed on the ground:
“When a defense is being provided without reservation by an insurance carrier, a settlement by the carrier within policy limits does not prejudice the ‘substantial rights’ of the insured… ‘Where the insured is fully covered by primary insurance, the primary insurer is entitled to take control of the settlement negotiations and the insured is precluded from interfering therewith.’ This has long been the law [citation] . . . For this reason, it is common practice for insurance counsel and an adjuster to handle the negotiation of insurance-funded settlements without the superfluous involvement of a fully protected insured … [W]e do not read Levy [requiring parties to sign the settlement agreement] as precluding enforcement pursuant to section 664.6 of an insurance-funded settlement reached by an authorized
insurance defense counsel or adjuster when the carrier has the contractual right to settle.” Robinson, supra, 44 Cal. App. 4th at 1295-1296.
Since enforcement of a settlement under Code of Civil Procedure section 664.6 is more
rigorous than under CCP section 998 (because 664.6 requires the plaintiff to sign the agreement),
there is no reason (or case law) this court should not apply the Fiege court’s conclusion here.
Plaintiffs February 25, 2013 letter incorrectly stated CCP section 998(b)(1) required
defendant’s counsel to sign the statutory offer as the exclusive and sole method of acceptance.
Code of Civil Procedure section 998(b)(1) refers to the filing of the offer and proof of acceptance; and states in pertinent part: “. . . Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by refers to the ‘filing’ of the offer with ‘proof of acceptance’ with the court and having the clerk or judge enter judgment accordingly.”
Plaintiff attempts to distinguish the holding Fiege v. Cooke, supra arguing that in Feige, there was evidence that the underlying policy gave the insurers the right to settle without the defendants consent; and here, there has been no such showing. However, the specimen policy does provide evidence of the insurer’s authority to settle. Exhibit B to Declaration of Scott Hendry, p. 1. Plaintiff cites to Travelers Casualty and Surety Company v. Superior Court (1998) 63 Cal.App.4th 1440, for the proposition that the specimen policy is not sufficient and that there must be authenticated copies of the policy. However, Travelers, supra deals with a situation whether coverage is disputed, then the insurer must provide copies of the policy, or if the copies are missing, then secondary evidence is sufficient to show relevant terms and conditions.

Defendant’s acceptance was communicated in the manner prescribed by the offer
As set forth in the declaration of Thomas W. Shaver, Defendant properly accepted the offer. CCP section 998(b) states the acceptance “may” be made on the document containing the offer “on a separate document of acceptance.” Defendant accepted on a separate document of acceptance. Although the statute states the writing shall be signed by counsel “or the accepting party,” as discussed above defendant’s liability insurer under the instant circumstances was the entity with the authority and power to accept (on defendant’s behalf).

Unequivocal acceptance
Defendant’s acceptance was unequivocal. Plaintiff Anahid Sarkissian offered to settle the case for
$50,000, and the settlement would include all parties’ attorneys’ fees, costs “and related claims for
damage, known and unknown and shall constitute a full and complete satisfaction of settlement of
the above-action.”
Defendant’s acceptance agreed to pay the $50,000 and confirmed that the “related claims for
damages, known and unknown” meant — as is understood in a personal injury automobile accident
type of lawsuit—lien claims and related claims for damage, i.e. a spouse’s loss of consortium claim.
It is the law that “loss of consortium’ suffered by a spouse as a result of the other spouse’s
injuries is not a separate “bodily injury,” within the meaning of “per person liability limit” where the
policy unambiguously provides that consortium claims are to be included in the “per person limit”
(unless financial responsibility law requires different treatment).” Mid-Century Insurance Company
v. Bash (1989) 211 Cal.App.3d 431. Mercury’s policy provisions are unambiguous in this regard.
Exh. G, Decl. Shaver, p.4, section 3 Limits of Liability-coverage A “for the purposes of this
provision the ‘bodily injury sustained by any one person’ as used herein, shall be deemed to include
all injury and damages for care, loss of services, loss of consortium and injury to any interpersonal
relationship sustained by others as a consequence of such bodily injury.”) Mid-Century, supra, also
held that under California Financial Responsibility Law there is no requirement that separate limits
provided for loss of consortium claims.

Disposition
Defendants have his burden of establishing that there is no merit to Plaintiff’s claim for personal injury because defendant has an absolute defense based on his affirmative defense of compromise settlement. Plaintiff has not shown any evidence that there is a disputed fact as to whether the settlement exists. The motion for summary judgment is granted.

Dated this 25th day of April, 2014

Hon. Elia Weinbach
Judge of the Superior Court