Walker v. Belvedere
| Decision Date | 01 July 1993 |
| Docket Number | No. B068125,B068125 |
| Citation | 20 Cal.Rptr.2d 773,16 Cal.App.4th 1663 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Patricia A. WALKER, Plaintiff and Appellant, v. Michelle BELVEDERE, Defendant and Respondent. |
Demler, Armstrong & Rowland and Thomas J. Moses, Long Beach, Horvitz & Levy and David S. Ettinger, Encino, for defendant and respondent.
We find that plaintiff Patricia Walker was entitled to entry of a $15,000 judgment against defendant Michelle Belvedere pursuant to statutory liability imposed by the Vehicle Code. We reverse that part of the judgment denying Walker such relief.
In February of 1987, Belvedere and Sydney Jane Allen lived together and were co-owners of the automobile involved in the accident which injured Walker. According to Walker's complaint, Belvedere and Allen spent the evening drinking then decided to harass a woman Allen had been enjoined by court order from contacting. Belvedere, who did not like to drive at night, asked Allen to drive even though Allen was intoxicated. On their way to the woman's home Allen died in 1988, so her estate defended the lawsuit. Walker brought two causes of action, negligent operation of the vehicle and negligent entrustment by Belvedere. Allen's negligence was admitted, so the jury was asked to decide only the negligent entrustment cause of action. They found for Belvedere. On the same day, the trial court entered judgment in accordance with the admission of Allen's negligence and the verdict in Belvedere's favor. Walker was awarded $335,000 against Allen's estate. Allen and Belvedere were both covered by the same $100,000 insurance policy.
Allen was involved in a hit and run accident. While fleeing [16 Cal.App.4th 1666] the scene, Allen ran a red light at high speed and broadsided Walker's car, severely injuring her. Walker, a registered nurse, was on her way to work.
Two weeks later, Walker asked the trial court to set aside the judgment and enter a new judgment adding recovery against Belvedere under Vehicle Code sections 17150 and 17151, which hold a vehicle owner liable up to $15,000 for a permissive user's negligence. The trial court declined. As a result, Belvedere was the prevailing party, entitled to costs of over $13,000.
Walker appeals, conceding that any judgment against Belvedere has since been satisfied by payment of the insurance policy. The only effect of a judgment against Belvedere would be to eliminate Belvedere's recovery of costs.
The question is whether the judgment against Allen, exceeding Belvedere's statutory $15,000 liability, precluded a judgment against Belvedere. We must also decide whether Walker is entitled to recover on an unpled cause of action.
There is no shortage of cases holding that settlement by the negligent driver for an amount equal to or in excess of the owner's statutory liability, discharges the owner. For example, Fenley v. Kristoffersen (1979) 94 Cal.App.3d 139, 141, 156 Cal.Rptr. 187 held that a "$15,000 settlement by plaintiff with the negligent driver discharge[d] the owner's statutory liability under Vehicle Code sections 17150 and 17151." But although speaking of settlement, Fenley couched its rationale in terms of payment, by quoting from Heves v. Kershaw (1961) 198 Cal.App.2d 340, 344, 17 Cal.Rptr. 837, that " 'any payment made by the operator ... must be applied first to satisfy the liability of the guarantor [owner].' " (Fenley v. Kristoffersen, supra, 94 Cal.App.3d at p. 142.)
Neither Fenley nor Heves dealt with the effect of a litigated and as yet unsatisfied judgment.
Kemp v. Barnett (1976) 62 Cal.App.3d 245, 132 Cal.Rptr. 823, held that the owner's settlement did not discharge the claim against the negligent driver, although traditional joint tortfeasor rules would normally require the opposite result. Pointing out, at page 249, that the "negligent operator is subject to unlimited liability for his own tort," while the owner's liability is limited, Kemp discussed those traditional concepts of joint and several liability, which led to the principle that joint tortfeasors (pre Proposition 51 (Civ.Code, § 1431.1 et seq.), of course) are ordinarily jointly and severally liable for the entire damages. (Id. at p. 248, 132 Cal.Rptr. 823.)
Kemp thus supports the principle that settlement by the operator for a sum in excess of the owner's statutory liability discharges the owner. But again, the tenor of the discussion centers on satisfaction of the judgment.
In Burton v. Gardner Motors, Inc. (1981) 117 Cal.App.3d 426, 172 Cal.Rptr.
647, the plaintiff settled with the driver for $8,500 and stipulated to a judgment in that amount. The appellate court held that Burton had thus fixed her damages in that amount. (This conclusion is criticized in Milicevich v. Sacramento Medical Center (1984) 155 Cal.App.3d 997, 1005, 202 Cal.Rptr. 484.) The judgment was satisfied in full by the driver and thus operated to discharge the joint tortfeasor owner. As in the previous cases, satisfaction, rather than mere procurement, of the judgment seems to be the foundation of the reasoning
The previous cases all involved settlements. Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847, 12 Cal.Rptr.2d 411 was litigated to judgment in the trial court. The Rashtian appellate court held that (Id. at p. 1853, 12 Cal.Rptr.2d 411.) While not making the precise statement that a judgment has the same effect, the court certainly implies strongly that it does.
Echoing Heves, Rashtian points out that the owner's statutory liability is primary and direct as to the plaintiff, but secondary as between the owner and the driver. (Rashtian v. BRAC-BH, Inc., supra, 9 Cal.App.4th at pp. 1852-1853, 12 Cal.Rptr.2d 411.)
In speaking of guaranties and primary liability to the plaintiff, Rashtian, although joining previous cases in making the bald statement that settlement extinguishes the owner's obligation, implicitly recognizes that satisfaction of the judgment is the crucial factor. A judgment by itself guarantees nothing. Discussion in all the cases makes it plain that the point of the owner's statutory liability is to see to it that an injured plaintiff has a better chance of getting something by way of compensation. Broome v. Kern Valley Packing Co. (1935) 6 Cal.App.2d 256, 44 P.2d 430, says the legislation "contains provisions calculated to protect the owner from the results of the operator's negligence in so far as this may be done between those parties without interfering with the rights of the injured party." (Id. at p. 261, 44 P.2d 430.) "In other words, to the extent it is possible, the plaintiff is to be made whole." (Lindgren v. Baker Engineering Corp. (1988) 197 Cal.App.3d 1351, 243 Cal.Rptr. 476, dissenting opinion at p. 1356.) Again, satisfaction of the judgment lurks beneath the surface of the discussion.
Lindgren seems to use a similar rationale. There, the negligent driver was also the owner. The injured plaintiff settled with the owner, whose insurance carrier paid $25,000. Another "owner" was the company that had sold the car under an installment sale contract. Plaintiff's suit against the company was terminated by summary judgment since the $25,000 payment had discharged its liability. In affirming, the court quoted from Dow v. Britt (1974) 37 Cal.App.3d 868, 873, 112 Cal.Rptr. 710, " " (Lindgren v. Baker Engineering Corp., supra, 197 Cal.App.3d at p. 1354, 243 Cal.Rptr. 476.)
In Heves, the judgment was paid beyond the point of the statutory liability. In Burton, the stipulated judgment pursuant to a settlement was paid. In Lindgren, the amount called for by the settlement was paid. Dow was a case of parents' liability for their minor child under provisions similar to those at issue here. The insurance carrier paid beyond the statutory limitation. Fenley doesn't say whether the settlement was satisfied, but the plaintiff dismissed the case with prejudice. This indicates to us the money was paid.
In Kemp, the settlement was satisfied, but that means nothing here one way or the other, since Kemp involved the opposite of our issue, the driver unsuccessfully claiming a settlement with the owner discharged the former's liability.
In Broome, the plaintiff pursued the owner and the driver. The jury returned a verdict against the owner, but failed to return a verdict either way as to the driver. Broome rejected the owner's argument that the absence of a verdict against the driver defeated the judgment against the owner. The case thus involved neither settlement with nor judgment against the negligent driver.
In Rashtian, the negligent driver was never served. The owner unsuccessfully appealed the adverse judgment on the basis that ...
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