Ward v. Superior Court
| Decision Date | 01 November 1973 |
| Citation | 35 Cal.App.3d 67,110 Cal.Rptr. 501 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Harry James WARD, Petitioner, v. SUPERIOR COURT, Respondent. Kathy Ann BUCKNER, Real Party in Interest. Civ. 42692. |
Gilbert, Kelly, Crowley & Jennett, James B. Crowley, Ellis J. Horvitz and Arthur E. Schwimmer, Los Angeles, for petitioner.
Nathaniel J. Friedman, Los Angeles, for real party in interest.
No appearance for respondent court.
Petitioner and the real party in interest were involved in an automobile accident. The real party in interest filed suit against petitioner for damages arising out of that accident. On May 21, 1973, concurrently with service of the summons and complaint in that action, the real party in interest caused to be served on petitioner a statutory offer of compromise (Code of Civ.Proc., §§ 998 and 999) in the following terms:
'To the defendant herein, Harry James Ward, and his attorneys, insurance company and private lawyer, if any:
'You, and each of you, will please take notice that plaintiff offers to allow judgment, pursuant to C.C.P. §§ 998 and 999 in an amount equal to the single-person pay limit provided in defendant Ward's policy of insurance with the Automobile Club of Southern California.
'Because at the time of the making of this offer, plaintiff has not yet discovered the exact dollar amount provided in said policy, in the event the offer is accepted, plaintiff will insist on a sworn statement from defendant and his carrier, that the Auto Club policy is the sole insurance policy providing liability coverage, and in the event that the defendant in fact has other liability coverage that would apply to this case, defendant will be required to so advise plaintiff under oath. In that case, plaintiff requires that the Auto Club policy be paid in full, that no release be required, but rather in the event of other liability coverage, defendant will be entitled to a credit on any ultimate judgment rendered, to the extent payment on the Auto Club policy is made.
'Failure to accept this offer within 30 days of the date of service upon defendant, will mean that plaintiffs will claim interest from the date of service of the offer on defendant Ward, and costs of all expert witnesses employed.'
On June 8, 1973, counsel for the real party in interest wrote to an employee of the Auto Club, 1 reciting that inquiry had disclosed assets of petitioner in addition to his insurance policy with the club, 2 expressly withdrawing the original offer and tendering a new offer to settle for a larger sum. On June 14, 1973 (within 30 days from the service of the original offer) petitioner, through his attorneys, filed an answer in the law suit, together with a notice of acceptance of the original offer. Real party in interest moved to strike the notice of acceptance, which motion was granted, by a minute order dated July 3, 1973.
Petitioner sought mandate in this court 'directing Respondent Superior Court forthwith to vacate its minute order of July 3, 1973 in Los Angeles Superior Court Case No. NW C 32316 and to enter judgment for Real Party in Interest in the sum of $15,000.00.' We issued our alternative writ; 3 the matter has been argued and submitted; we grant a peremptory writ as prayed.
The petition and answer in this court, as did the briefs in the trial court, argue whether an offer of settlement, made pursuant to sections 998 and 999, may be revoked prior to acceptance and within the 30-day period set forth in the statute.
On consideration of the record before us, we conclude that we need not reach that issue in the case at bench. Whether or not a statutory offer is supported by consideration and thus is an irrevocable option, its acceptance is governed by the basic laws of contract. (Distefano v. Hall (1968) 263 Cal.App.2d 380, 385.) 4 Under familiar contract law, a revocation of an offer must be directed to the offeree. That was not done here. The offer was made to petitioner personally; the purported revocation was directed to his insurer. But, until petitioner had taken some affirmative action to designate either the insurer or its attorneys to represent him in the lawsuit, petitioner, and petitioner only, was the proper addressee of a revocation. 5
Although petitioner did have a policy of insurance with the Auto Club, and that fact had in some way come to the knowledge of the real party in interest or her attorneys, 6 we know of nothing that, as between petitioner and the real party in interest, compelled petitioner to resort to the protection of that policy. Petitioner, had he so...
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...are those relating to contracts in general [citation]." (Id., at p. 385, 69 Cal.Rptr. 691.) And, in Ward v. Superior Court (1973) 35 Cal.App.3d 67, 69, 110 Cal.Rptr. 501, a purported revocation of a section 998 offer was held to be ineffective because it had not been communicated directly t......
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