Bright v. LSI CORP. , 254 Kan. 853 ( 1994 )

McFarland, J.,

concurring: I concur in the result reached in the majority but would affirm the trial court on a different rationale.

While Bright I was on appeal, Bright and LSI entered into a settlement agreement, the key provisions of which are as follows:

“2.4 If the judgment against [LSI] is affirmed on appeal, insurer will pay [plaintiff] an additional $665,000.00, which represents the remainder of its policy limits provided to [LSI]. [Plaintiff] will make no claim against [LSI] for any amount in excess of the $1,000,000.00 policy limits, nor will [plaintiff] make any claim for interest on any portion of the judgment. .

“2.5. Should a new trial be granted, and should the lawsuit be retried, the conditions set forth above will remain applicable to the parties. ... If the final judgment entered against LSI is less than $1,000,000.00, Insurer will pay [plaintiff] the difference between $335,000.00 and the judgment amount. If the judgment exceeds $1,000,000.00, Insurer will pay $665,000.00 to [plaintiff].”

This court was not informed of the Bright/LSI settlement. The opinion in Bright 1 conditionally affirmed the judgment against LSI, stating:

“We affirm Bright’s judgment against LSI subject to a determination on remand that Cargill was Bright’s statutory employer. If Cargill is not Bright’s statutory employer, the judgment against LSI is reversed under Pizel v. Zuspann, 247 Kan. 54, 77, 795 P.2d 42 (1990).” Bright I, 251 Kan. at 390.

The Bright/Cargill subsequent settlement: (1) rendered the condition in the conditional affirmance moot and (2) precluded any of the contingencies set forth in Section 2.5 of the Bright/LSI agreement from occurring.

On remand, then, the trial court had before it only a declaratory judgment determination of LSI’s liability under its settlement agreement. Under ordinary principles applicable to the construction of contracts, the trial court was correct in holding that LSI was liable to Bright for an additional $665,000.