Berrios Rivera v. British Ropes, Ltd., Nos. 77-1257

Decision Date08 May 1978
Docket Number77-1258,Nos. 77-1257
PartiesJose BERRIOS RIVERA, etc., Plaintiffs, Appellees, v. BRITISH ROPES, LTD., et al., Defendants, Appellees, v. HARNISCHFEGER CORPORATION, Defendant and Third-Party Plaintiff, Appellee, v. LEVITT & SONS OF PUERTO RICO, INC., Third-Party Defendant, Appellant, v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Additional Third-Party Defendant, Appellee. Jose BERRIOS RIVERA, etc., Plaintiffs, Appellees, v. BRITISH ROPES, LTD., et al., Defendants, Appellees, v. HARNISCHFEGER CORPORATION, Defendant and Third-Party Plaintiff, Appellee, v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Additional Third-Party Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Charles A. Cordero, San Juan, P. R., with whom Ramon Humberto Vargas, Hato Rey, P. R., was on brief, for defendants, appellants.

Jaime Pieras, Jr., Hato Rey, P. R., for defendant and third-party plaintiff, appellee Harnischfeger Corporation.

Gabriel Hernandez Rivera, San Juan, P. R., with whom Feldstein, Gelpi & Hernandez, Old San Juan, P. R., were on brief, for plaintiffs, appellees.

Before CAMPBELL, BOWNES and MOORE, * Circuit Judges.

MOORE, Circuit Judge:

In this personal injury action, jurisdiction over which is based on diversity between the parties, plaintiff, who was rendered a paraplegic when a cable on a crane snapped, finally succeeded in this action, after three years of discovery and numerous postponed trial dates, to obtain a settlement from the defendant British Ropes, Ltd. (the cable manufacturer) and Harnischfeger Corporation (the crane manufacturer), joined by third-party defendant Levitt & Sons of Puerto Rico, Inc. (the prime contractor) (Levitt) and additional third-party defendant Commercial Insurance Co. (the liability insurer of the subcontractor, Insular Construction Company). The settlement, according to the district judge, was agreed to after a motion to dismiss based on res judicata was denied, and after months of settlement negotiations. An order was entered on March 29, 1977 in the sum of $136,000 to be distributed in equal sums of $34,000 among the four co-defendants and third-party defendants. The settlement order included a provision for compensation due to plaintiff's attorney and provisions pertaining to amounts to be paid to plaintiff's six minor children, who claimed derivatively against the defendants; these amounts had been approved by the court and by the Department of Justice of the Commonwealth of Puerto Rico, which filed its approval papers on February 18, 1977.

After the settlement order was entered on March 29, the co-defendant British Ropes filed a motion for reconsideration on April 7, alleging that its share of the settlement was only $30,000. On April 12, the court, over plaintiff's objections, entered an order reducing the contribution of British Ropes to the amount it claimed was due from it. Thereafter, on April 20, Commercial Insurance, which reserved the right, when settlement was entered, to have its third-party dispute with Levitt determined by the court (see Order dated May 31, 1977, Appendix at 48-53), filed a motion alleging that "in view of the 'chipping' tactics" of British Ropes, the order of March 29 should be vacated, and the case should be set for trial. On the same day that Commercial filed its motion, defendant Harnischfeger filed a "Motion Executing Settlement", stating that, in order to satisfy plaintiff's objections to the reduction of the total amount paid to him and his children, it (Harnischfeger) agreed to increase its share of the settlement to $38,000, and thereby cure the deficiency. Harnischfeger's papers impressed upon the court that there had, in fact, been an agreement, and that the motion of Commercial was untimely since it was filed well after the time period, commencing with the filing of the March 29 order of settlement, permitted by the rules for contesting the judgment.

On April 22, 1977, the district court denied the motion of Commercial and held that the grievance would be cured by entering an order reapportioning the liabilities of all of the defendants: British Ropes was to pay $30,000; Harnischfeger, in conformance with its motion, would be liable for $38,000; and Commercial and Levitt were both to be held to $34,000 each, as per the March 29 order.

On April 27, Levitt filed a motion "withdrawing its offer of settlement"; the next day, Commercial and Levitt filed separate notices of appeal from the March 29 order and from subsequent orders affecting that order. That same day, Commercial filed a motion for reconsideration and to vacate the settlement orders. Although the district court found itself without jurisdiction to consider the motion to vacate since the notice of appeal had been filed, Chief Judge Toledo, in an opinion dated May 31, 1977, chronicled the events that occurred subsequent to the filing of the notices of appeal and noted that, had he retained jurisdiction, he would have denied the motion to vacate.

As a first ground of appeal, appellants Commercial and Levitt urge that the orders of March 29 and April 22 (modifying the settlement), and all subsequent orders affecting the settlement issue, should be reversed on the ground that no settlement had in fact been reached. Appellants' major contention is that Commercial's attorney was not present at the second settlement conference, held on February 18, 1977, when the alleged settlement was reached, and that no formal releases or stipulations for judgment were ever drafted by the parties' attorneys, all of which, they argue, indicates that there was never an agreed-upon settlement in the first instance. Appellants claim that, at the settlement conferences, there was only an agreement to recommend settlement in four equal shares to the various parties, but that the district judge erred in entering the settlement orders because there was no true consent.

Plaintiff-Appellee objects to the tactics of the appellants/third-party defendants, pointing to specific representations of those parties in their motion papers acknowledging that there had been agreement to pay $136,000 to the plaintiff. Indeed, the docket entry for February 18, 1977 recites that a settlement conference was called, that the settlement of the minors' claims was approved pursuant to the Certificate of Approval of the Department of Justice of the Commonwealth of Puerto Rico, and that defendants were to file cross motions and memoranda regarding apportionment of damages between them. Furthermore plaintiff refers to a motion filed by appellant Levitt on May 3, 1977, entitled "Motion for a Special Hearing and Further Proceedings Consistent with Settlement Agreement", in which Levitt stated that there had been specific agreement that it would share in the liability to the extent of $34,000.

We are persuaded that the settlement orders must be upheld. First, in our task of reviewing the findings and orders of the district court, we must presume regularity, and give due regard to the district judge's...

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21 cases
  • Garcia v. Friesecke
    • United States
    • U.S. Court of Appeals — First Circuit
    • 18 Abril 1979
    ...of the law of the locality in which it sits. Diaz-Buxo v. Trias Monge, 593 F.2d 153 at 156 (1st Cir. 1979); Berrios Rivera v. British Ropes, Ltd., 575 F.2d 966, 970 (1st Cir. 1978); Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687, 688 (1st Cir. 1977). The fact that the Lugo Sanchez decis......
  • Rodriguez v. Escambron Development Corp., 83-1439
    • United States
    • U.S. Court of Appeals — First Circuit
    • 1 Agosto 1984
    ...Monge, 593 F.2d 153, 156-57 (1st Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 64, 62 L.Ed.2d 42 (1979); Berrios Rivera v. British Ropes, Ltd., 575 F.2d 966, 970 (1st Cir.1978). The courts of Puerto Rico, however, could reach a different result from that reached by the district court in this......
  • Estrada-Izquierdo v. Aponte-Roque
    • United States
    • U.S. Court of Appeals — First Circuit
    • 7 Diciembre 1987
    ...841 F.2d 1169, 1173 n. 6 (1st Cir.1988) (citing Roure v. Hernandez Colon, 824 F.2d 139, 142 (1st Cir.1987); Berrios Rivera v. British Ropes, Ltd., 575 F.2d 966, 968 (1st Cir.1978)). Moreover, Aponte, as appellant, has utterly failed to argue or present any legal basis for overturning the di......
  • Mitchell v. Hobbs
    • United States
    • U.S. Court of Appeals — First Circuit
    • 7 Mayo 1991
    ...had accepted the settlement agreement. The court relied on Colon's representations and on our decision in Berrios Rivera v. British Ropes, Ltd., 575 F.2d 966 (1st Cir.1978) (refusing to set aside district court findings that all parties agreed to settle case even though appellant's counsel ......
  • Request a trial to view additional results

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