513 F.2d 678 (1st Cir. 1975), 74-1329, Warner v. Rossignol

Docket Nº:74-1329.
Citation:513 F.2d 678
Party Name:Douglas F. WARNER, Plaintiff-Appellant, v. Donat ROSSIGNOL, Defendant-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Intervenor-Appellee.
Case Date:April 07, 1975
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 678

513 F.2d 678 (1st Cir. 1975)

Douglas F. WARNER, Plaintiff-Appellant,


Donat ROSSIGNOL, Defendant-Appellee,



No. 74-1329.

United States Court of Appeals, First Circuit

April 7, 1975

Argued Jan. 8, 1975.

Page 679

[Copyrighted Material Omitted]

Page 680

Julius B. Levine, Waterville, Me., with whom Frederick E. Levine and Levine, Brody & Levine, Waterville, Me., were on brief, for plaintiff-appellant.

Albert L. Bernier, Waterville, Me., with whom Marden, Dubord, Bernier & Chandler, Waterville, Me., was on brief, for defendant-appellee.

Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal involves the aftermath of a settlement which, to use the vernacular, became unstuck. Douglas F. Warner sued Donat Rossignol in tort under the diversity jurisdiction for injuries resulting from an accident. The issue of liability was tried first; and a jury returned special findings that Rossignol's servant was "guilty" of negligence which was a proximate cause of the accident, and that plaintiff Warner was not so guilty. On March 1, 1974, the district court entered "judgment" for plaintiff against defendant "in an amount of damages to be determined by the court after further jury trial". The damages trial was scheduled for March 14 at 9:30 a. m. before the same jury. However, on March 13, counsel for defendant notified the court that the case was settled, and the court accordingly removed it from the trial calendar and dismissed the jury.

Under the settlement orally concluded by counsel, Rossignol was to pay Warner $6,000 and Warner was to furnish releases to Rossignol, following which counsel would file a stipulation of dismissal of the action with prejudice and without costs.

All proceeded smoothly for sometime thereafter: defendant's attorney mailed releases and stipulations of dismissal to plaintiff's attorney on March 27, stating,

"Upon receipt of all these documents properly executed, I will deliver or remit (in accordance with your instructions) our certified or bank check (again in accordance with your instructions) forthwith. I would appreciate it if you would obviously (sic) give me instructions as to how you desire the check to be made out."

Warner's attorney responded on April 3, transmitting the executed dismissals and Warner's release, but declining to furnish a requested release from Warner's parents. He wrote,

"Please hold the enclosed release and Stipulations of Dismissal in escrow and let them be of no effect until I receive a certified check payable to me as Attorney for Douglas Warner for $6,000."

On April 5, 1974, Warner's attorney furnished Rossignol's attorney by mail with a requested discharge of real estate attachment.

On April 9, 1974, Rossignol's attorney wrote Warner's attorney acknowledging receipt of the foregoing, questioning the absence of a parental release, and stating that he had forwarded the Stipulation of Dismissal of the District Court case to defendant's insurer's attorney for his signature,

"all upon condition that these Stipulations are to be in no way construed to be effective until you have received the total settlement amount of $6,000.00."

Page 681

In his letter of even date to the insurer's attorney, defendant's attorney reiterated that the stipulations "cannot, under no (sic) circumstances, be considered as effective until (plaintiff) has received the settlement check in the amount of $6,000.00".

On April 11, 1974, Warner's attorney forwarded a release from Warner's parents, thus terminating the one disagreement that had ruffled the so far placid waters.

Rossignol did not, however, immediately tender the $6,000 although his attorney acknowledged by letter of April 21 that plaintiff's obligations had been fulfilled. When plaintiff's counsel pressed for payment in May, he was told by Rossignol's attorney that Rossignol had been seeing other attorneys and had resisted the attorney's pleas for a check.

On May 12, after forewarning defendant that he intended to do so, plaintiff's attorney wrote to the Clerk of the District Court that plaintiff "withdraws his willingness to enter this compromise", assigning as the principal reason Rossignol's unwillingness to pay the $6,000. Plaintiff's attorney insisted that the original settlement had contemplated payment within two...

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