Monday, September 23, 2013
C.A. Orders That $4.1 Million Stipulated Judgment Be Scrapped
By a MetNews Staff Writer
The Court of Appeal for this district has ordered that a $4.1 million stipulated judgment entered by the Los Angeles Superior Court be vacated because the defendant’s insurer had not been informed of the action in that court.
The opinion, filed Thursday, came in the case of Turner v. Turner, B241265. Justice Richard Aldrich of Div. Three was author of the opinion, which was not certified for publication.
Los Angeles Superior Court Judge Abe Khan on March 20, 2012, denied a motion by Hartford Casualty Insurance Company to vacate the judgment, entered on July 19, 2011, pursuant to the ex parte application of the plaintiff, Lisa Turner. The settlement was between her and her mother, Marian Turner, insured by Hartford.
The action was over injuries suffered by the daughter when she fell through a shower door, not made of tempered glass, at a home owned by her parents and sister.
Initially, Lisa Turner sued in U.S. District Court, and Hartford was notified of the action, and opposed the settlement. But the judge dismissed that action, without prejudice to it being re-filed in state court and, when it was, the insurer was not told of it.
When it ultimately learned of the entry of judgment, Hartford moved to vacate it pursuant to Code of Civil Procedure Sec. 473 (b), which authorizes a court to relieve a party from a judgment “taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
Khan denied the motion, and the insurer appealed.
“Here, the trial court erred because its conclusion that Hartford denied Marian’s tendered defense of this action is not supported by any admissible evidence in the record,” Aldrich wrote.
He said Khan apparently relied on the case of Sunseri v. Camperos Del Valle Stables, Inc. (1986) 185 Cal.App.3d 559. There, Aldrich pointed out, the insurer had made a conscious decision not to defend the action and relief under Sec. 473 was denied after a settlement was reached.
“Here, unlike Sunseri,” he wrote, “there is no evidence Marian even tendered her defense of the state court action that would have triggered Hartford’s duty to defend.”
The jurist rebuffed the contention that Hartford could not have been surprised because it had learned of the settlement while the action was in federal court.
“Although Hartford was aware of the December 10, 2010 settlement, it was not aware that Lisa had re-filed her personal injury action in state court, or filed an ex parte application for entry of the $4.1 million stipulated judgment. There is no conflicting evidence presented on these points. The record also reveals that, if given notice, Hartford would have objected to the entry of the $4.1 million judgment, having done so in the district court action.”
Michael W. Ellison and Susan L. Goodkin of Smith Ellison represented Hartford; Amy P. Lee was the attorney for Lisa Turned; Gary A. Farwell acted for Marian Turner.
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