Condon v. Condon

Fl LE This opinlonwas filed for reeord
at 15 i o-o a::'fh on M OJ"C..l-) ·'L\ _ z..o 1,3
\Olned4
R. Carpenterd-
OCRonald
/~preme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
VANESSA CONDON, )
) No. 86130-7
Appellant, )
)
v. ) EnBanc
)
FEL Y CONDON, )
)
Respondent. ) Filed MAR 21 2013
MADSEN, C.J.-In open court, appellant Vanessa Condon 1 and respondent Fely
Condon entered into a stipulated settlement and dismissal with prejudice of Vanessa's
claims against Fely, stemming from an automobile accident. Before payment of the
settlement funds, Fely requested that Vanessa sign a release agreement, which the parties
had not discussed nor placed on the record. Vanessa refused to sign the release and Fely
made a motion to enforce the settlement and the release. The trial court entered an order
deeming the release signed. Vanessa filed a motion for discretionary review in this
1
For clarity, the parties will be referred to by their first names.
No. 86130-7
court, 2 arguing the trial court lacked jurisdiction to enforce release terms that were not a
part of the original agreement. Fely contended Vanessa waived her right to appeal by
accepting the settlement check. We hold that Vanessa Condon did not waive her right to
appeal and that the trial court improperly added implied terms to the agreement.
Accordingly, we reverse.
FACTS AND PROCEDURAL HISTORY
On August 24, 1996, Fely Condon was driving with her daughter, Vanessa
Condon, when they were struck by another vehicle. Vanessa was ejected from her
mother's car and sustained several injuries including a concussion, a damaged tooth, and
cuts and contusions. Vanessa was entitled to coverage by Farmers Insurance Co. of
Washington under an underinsured motorist (UIM) policy, which provided for arbitration
of disputes. Her claim was arbitrated. The award of $108,000 was confirmed and
judgment entered on February 10, 2011 in King County.
Vanessa also instituted an action in Kitsap Superior Court against Fely in 2005.
The parties settled before trial. In open court on March 29; 2011, the parties agreed that
Vanessa would receive a $100,000 payment from Farmers, credited against the King
County UIM arbitration judgment, and Fely would pay the remaining $8,000 to satisfy
the DIM judgment, with attorney fees to be argued at a later date. No written settlement
or release was presented. The parties signed a stipulation and order of dismissal on
March 29, and on April 1 the court ordered dismissal with prejudice.
2
Commissioner Steven Goff ruled that "[t]he notice for discretionary review shall be given the
same effect as a notice of appeal." Ruling, Condon v. Condon, No. 86130-7, at 4 (Wash. Oct. 25,
2011).
2
No. 86130-7
On March 30, 2011, prior to the dismissal, Fely's counsel sent Vanessa's counsel a
receipt and release of claims form to sign. On April1, 2011, Vanessa notified Fely that
she would not sign the release. Fely then moved to enforce the settlement and compel
Vanessa to sign the receipt and release. Vanessa objected to the motion, arguing that the
release was never part of the settlement and that the stipulated order of dismissal with
prejudice ended all litigation. She also asked for CR 11 sanctions against Fely. Fely
argued that the separate release was a common practice in settlements and that she would
not have entered into the agreement had she been aware that Vanessa did not intend to
sign the release.
At the April22, 2011 hearing on the motion, the trial court asked Vanessa's
attorney whether she objected to a particular part of the release, or rather the "concept" of
a release. Verbatim Report of Proceedings (VRP) (Apr. 22, 2011) at 5.
Her attorney replied that Vanessa had not agreed to any release. Referencing an
unpublished case from California, El-Fadly v. Northridge Park Townhome Owners Ass 'n,
No. B172684, 2005 WL 1503857 (Cal. Ct. App. June 27, 2005) (unpublished), the trial
court ruled that the settlement would stand and that the settlement check would not be
released until a release was signed. The parties were ordered to create a "customary and
usual release." VRP at 9.
At a subsequent hearing, the trial court heard the parties' arguments on the release
language provided by Fely's attorney. Vanessa's attorney expressed concern that the
language was overly broad and could preclude Vanessa from receiving the unsatisfied
3
No. 86130-7
judgment from the King County UIM decision and bringing any potential bad faith
claims. Her attorney filed a declaration that included the release Fely had provided the
court, with certain sections redacted. Fely's counsel argued that the portions of the
release, indemnity, and hold harmless provisions to which Vanessa objected were
standard, saying, "[T]his is a standard release in this case which we ordinarily and
routinely have people sign." VRP (May 13, 2011) at 14. The court was satisfied with the
unredacted release and entered an order deeming the release signed, noting that the record
of the May 13 proceeding was sufficient to support Fely's claim that "the release only
applies to this case." !d. at 12.
ANALYSIS
Citing RAP 2.5(b), Fely contends that Vanessa waived her right to appeal because
she received the benefit ofthe settlement when she cashed the $100,000 check. See
Buckley v. Snapper Power Equip. Co., 61 Wash. App. 932, 941-42, 813 P.2d 125 (1991).
RAP 2.5(b )( 1) allows a party to accept the benefits of a trial court decision without losing
the right to appeal under only four circumstances, including "if, regardless of the result of
the review based solely on the issues raised by the party accepting benefits, the party will
be entitled to at least the benefits of the trial court decision." "The purpose of RAP
2.5(b) is to ensure that a party seeking review will be able to make restitution if a
decision is reversed or modified on appeal." Scott v. Cascade Structures, 100 Wn.2d
537,541,673 P.2d 179 (1983) (citing RAP 2.5(b)(2) cmt., 86 Wash. 2d 1151 (1976)). In
4
No. 86130-7
this case, even if the settlement was vacated, Vanessa would be entitled to the $100,000
through the King County UIM arbitration. We find no waiver on these facts.
Next, Vanessa argues that the trial court lacked jurisdiction to enforce a settlement
following dismissal of claims. This is a question of law that is reviewed de novo.
Crosby v. Spokane County, 137 Wash. 2d 296, 301, 971 P.2d 32 (1999); State v. Squally,
132 Wash. 2d 333, 340-41, 937 P.2d 1069 (1997). Enforcement ofthis settlement is
governed by CR 2A. In reMarriage of Ferree, 71 Wash. App. 35, 39, 856 P.2d 706(1993). The rule provides:
No agreement or consent between parties or attorneys in respect to the
proceedings in a cause, the purport of which is disputed, will be regarded
by the court unless the same shall have been made and assented to in open
court on the record, or entered in the minutes, or unless the evidence thereof
shall be in writing and subscribed by the attorneys denying the same.
CR 2A. The purpose of CR 2A is to give certainty and finality to settlements. Eddleman
v. McGhan, 45 Wn.2d 430,432, 275 P.2d 729 (1954) (discussing the predecessor ofCR
2A, which used identical language).
Where the CR 2A requirements are met, a motion to enforce a settlement is a
commonly accepted practice. See Ferree, 71 Wn. App. at 45 (trial court did not err when
it enforced a settlement agreement); Brinkerhoffv. Campbell, 99 Wash. App. 692, 697, 994
P.2d 911 (2000) (determining a trial court abuses its discretion when it enforces a
settlement without holding an evidentiary hearing when there are disputed issues of fact);
Howard v. Dimaggio, 70 Wash. App. 734, 739, 855 P.2d 335 (1993) (trial court improperly
enforced settlement where agreement prior to settlement was not reached on hold
5
No. 86130-7
harmless and release documents); Kwiatkowski v. Drews, 142 Wash. App. 463, 479, 176
P.3d 510 (2008) ("We review a trial court's order enforcing a settlement agreement de
novo.").
The premise of Vanessa's argument is that a dismissal with prejudice ends all
litigation, thus removing the court's jurisdiction. Vanessa cites Cork Insulation Sales Co.
v. Torgeson, 54 Wash. App. 702, 705, 775 P.2d 970 (1989), as support for her position. In
Cork, the Court of Appeals held that the trial court lacked jurisdiction to enter a judgment
awarding terms against the defendant in connection with a motion to vacate a default
judgment weeks after the plaintiff obtained a voluntary dismissal of his claims. Unlike
this case, Cork did not involve enforcement of a settlement, the terms of which were in
dispute. Moreover, the Court of Appeals subsequently explained the limited scope of its
holding in Cork in Hawk v. Branjes, 97 Wash. App. 776, 782, 986 P.2d 841 (1999). In
Hawk, the trial court awarded the defendant tenant costs and attorney fees after granting
the landlords' motion to voluntarily dismiss their complaint. Hawk, 97 Wn. App. at 778-
79. The landlord appealed, claiming that its voluntary dismissal ended the case, and the
trial court, therefore, based on Cork lacked jurisdiction to make the award. !d. at 782.
The Court of Appeals in Hawks distinguished its Cork decision, stating that Cork did not
involve an attorney fee awarded under a statute or contractual provision. !d. The court
noted that "[w]hile a voluntary dismissal under CR 41 (a)(l) generally divests a court of
jurisdiction to decide a case on the merits, an award of attorneys' fees pursuant to a
statutory provision or contractual agreement is collateral to the underlying proceeding."
6
No. 86130-7
I d. at 782-83. The court observed that "to hold otherwise would unnecessarily subject the
courts to separate actions to recover fees readily ascertainable upon dismissal of the
underlying claim." ld. at 783.
Although enforcement of a settlement is different from an award of attorney fees
or costs provided by a contract or statute, there are similar concerns regarding subjecting
courts to separate actions to enforce the very settlements upon which the dismissals are
based. For instance, the United States Supreme Court considered a similar issue as it
pertained to district courts retaining ancillary jurisdiction over a settlement. Kokkonen v.
Guardian Life Ins. Co. ofAm., 511 U.S. 375, 380-81, 114 S. Ct. 1673, 128 L. Ed. 2d 391( 1994). There, the Court said that ancillary jurisdiction could exist following dismissal of
a settlement in order to protect its proceedings and vindicate its authority
if the parties' obligation to comply with the terms of the settlement
agreement had been made part of the order of dismissal-either by separate
provision (such as a provision "retaining jurisdiction" over the settlement
agreement) or by incorporating the terms of the settlement agreement in the
order. In that event, a breach of the agreement would be a violation of the
order, and ancillary jurisdiction to enforce the agreement would therefore
exist.
Id. at 381. In the absence of ancillary jurisdiction, the court held that enforcement of the
settlement could only proceed in state court. I d. at 382. Although Kokkonen does not
address a state trial court's jurisdiction, it does provide some guidance.
Several states have also grappled with this question, including Florida, California,
and Illinois. In Florida, the supreme court in Paulucci v. General Dynamics Corp., 842
So. 2d 797, 803 (2003), considered whether a court has jurisdiction to enforce a
7
No. 86130-7
settlement agreement where the court has either incorporated the agreement into a final
judgment or approved of the agreement by order and retained jurisdiction to enforce the
terms. Paulucci affirmatively held that a court does have jurisdiction under those
circumstances, but noted that the extent of the court's continuing jurisdiction was
circumscribed by the terms of the agreement. !d.
Similarly, California amended its code in 1993 to permit the court to retain
jurisdiction to enforce a settlement following dismissal, upon the parties' request. 3 CAL.
Crv. PROC. § 664.6. There, it is insufficient for a settlement agreement to simply state
that jurisdiction is retained for enforcement; a request must be made to the court in order
to retain jurisdiction. Hagan Eng'g, Inc. v. Mills, 115 Cal. App. 4th 1004, 1010-11, 9
Cal. Rptr. 3d 723 (2003) (noting that Hagan could have had a conditional judgment
entered, had the trial court retained jurisdiction before dismissal, or provided another
enforcement mechanism, but that instead, he would have to file a new action for breach
of the settlement agreement).
There is also authority in Illinois that grants a trial court jurisdiction to enforce a
settlement following dismissal. Dir. of Ins. v. A & A Midwest Rebuilders, Inc., 3 83 Ill.
App. 3d 721, 725, 891 N.E.2d 500 (2008). The Court of Appeals in A & A concluded
that because the trial court expressly made the dismissal contingent on the terms of the
settlement agreement and most compellingly, because the court stated it retained
3
"If parties to pending litigation stipulate, in a writing signed by the parties outside the presence
of the court or orally before the court, for settlement of the case, or part thereof, the court, upon
motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties,
the court may retain jurisdiction over the parties to enforce the settlement until performance in
full of the terms of the settlement." CAL. Crv. PROC. § 664.6.
8
No. 86130-7
jurisdiction, the trial court had jurisdiction to enforce the settlement. A & A, 3 83 Ill. App.
3d at 725. It also noted that "a court retains the inherent authority to enforce its own
orders." !d. at 723 (citing County of Cook v. Ill. Fraternal Order of Police Labor
Council, 358 Ill. App. 3d 667, 671, 832 N.E.2d 395 (2005)). Florida, California, and
Illinois all appear to agree that a court can enforce a settlement following dismissal where
it has expressly retained jurisdiction at the time of settlement.
Within Washington, several counties have enacted court rules addressing this
Issue. In King County, parties who have reached a settlement fully resolving all claims
can delay dismissal for the purpose of enforcing a settlement agreement. KING COUNTY
LOCAL R. 41(e)(3). Pierce County also acknowledges that enforcement may delay
dismissal in Pierce County Superior Court Local Civil Rule 41 (e)( 4). There, if the parties
have reached an agreement and file a stipulation with the court, and the execution of the
settlement will take more than 90 days, an order of dismissal by the court under PCLR
41 (e)(3) is waived.
Guidance can also be found within secondary sources. Washington Practice
suggests that a party wishing to enforce a settlement could commence a new action for
breach but that a motion to enforce under the original cause number is preferred. 15
KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 53:28, at 450 (2d ed.
2009) (citing Or. Mut. Ins. Co. v. Barton, 109 Wash. App. 405, 36 P.3d 1065 (2001)).
However, it goes on to note that it is probably necessary to simultaneously move to
vacate under CR 60. !d. This view on vacating is shared by David F. Herr et al.,
9
No. 86130-7
Motions to Enforce Settlements: An Important Procedural Tool, 8 AM. J. TRIAL ADVOC.
1 (1984-85), which suggests that a party should combine the motions to reinstate and
enforce, due to the overlapping documents required. Id. at 3. Additionally, it states that a
court may reopen a matter following dismissal on the basis of its inherent authority, the
interests of justice, and because a breach of settlement would be misconduct under Fed.
R. Civ. P. 60(b)(3), or would be "any other reason justifying relief' under Fed. R. Civ. P.
60(b)(6). Id. at 4.
Here, the trial court acted informally to enforce the settlement. The best practice
would have been for the court, at the time of the settlement, to expressly retain
jurisdiction for purposes of enforcement or to enter a conditional or delayed dismissal.
Since that did not occur, the parties could have moved to vacate the original dismissal
under appropriate grounds and then made a motion to reinstate and enforce or
commenced a new action for breach of the settlement. Assuming, however, that the
process that the trial court followed was adequate, we nevertheless find the court
improperly implied additional terms into the agreement, as discussed below.
The trial court follows summary judgment procedures when a moving party relies
on affidavits or declarations to show that a settlement agreement is not genuinely
disputed. 4 Brinkerhoff, 99 Wn. App. at 696; Lavigne v. Green, 106 Wash. App. 12, 16, 23
4
Although the Court of Appeals has used an abuse of discretion standard in the past when
reviewing the enforcement of a settlement agreement, its more recent rulings clarify that de novo
review is appropriate. Brinkerhoff, 99 Wn. App. at 696; Lavigne, 106 Wn. App. at 16. As
discussed in Brinkerhoff, summary judgment procedures are used in motions to enforce a
settlement agreement. Brinkerhoff, 99 Wn. App. at 696. However, a trial court abuses its
10
No. 86130-7
P.3d 515 (2001); Ferree, 71 Wn. App. at 43. "[T]he party moving to enforce a settlement
agreement carries the burden of proving that there is no genuine dispute over the
existence and material terms of the agreement." Brinkerhoff, 99 Wn. App. at 696-97
(citing Ferree, 71 Wn. App. at 41 ). The parties' submissions must be read in the light
most favorable to the nonmoving party in order to determine whether reasonable minds
could reach only one conclusion. I d. at 697. Because the proceeding to enforce a
settlement is similar to a summary judgment proceeding, we review the court's order de
novo. Id. at 696.
Settlements are considered under the common law of contracts. Ferree, 71 Wn.
App. at 39 (CR 2A acts as a supplement but does not supplant the common law of
contracts in settlements). Washington follows the objective manifestation theory of
contracts, which has us determine the intent of the parties based on the objective
manifestations of the agreement, rather than any unexpressed subjective intent of the
parties. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wash. 2d 493, 503, 115 P.3d 262(2005). "It is the duty of the court to declare the meaning of what is written, and not
what was intended to be written." J. W. Seavey Hop Corp. v. Pollock, 20 Wash. 2d 337, 349,
147 P.2d 310 (1944). Determining the intent of the parties is paramount in settlements.
See, e.g., Evans & Son, Inc. v. City ofYakima, 136 Wash. App. 471, 479, 149 P.3d 691(2006) (holding that there was a genuine issue of material fact over whether the parties
agreed on all material terms); see also Nationwide Mut. Fire Ins. Co. v. Watson, 120
discretion if the nonmoving party raises a genuine issue of material fact and the trial court fails to
hold an evidentiary hearing to resolve the disputed issues of fact. !d. at 697.
11
No. 86130-7
Wn.2d 178, 190, 840 P.2d 851 (1992) (considering whether there was mutual mistake by
the parties). However, "the subjective intent of the parties is generally irrelevant if the
intent can be determined from the actual words used." Hearst, 154 Wn.2d at 504. These
words are given their ordinary, usual, and popular meaning unless a contrary intent is
shown from the entirety of the agreement. Id. Courts will not revise a clear and
unambiguous agreement or contract for parties or impose obligations that the parties did
not assume for themselves. Puget Sound Power & Light Co. v. Shulman, 84 Wash. 2d 433,
439, 526 P.2d 1210 (1974); Seattle-First Nat'l Bank v. Earl, 17 Wash. App. 830, 835, 565
P.2d 1215 (1977). Courts will also not imply obligations into contracts, absent legal
necessity typically resulting from inadequate consideration. Oliver v. Flow Int'l Corp.,
137 Wash. App. 655, 662, 155 P.3d 140 (2006) (citing as support Wood v. Lucy, Lady Duff-
Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), in which the Wood court implied an
obligation upon the plaintiff to make reasonable efforts to market the defendant's goods
under an exclusive licensing contract, where otherwise the defendant could have no
compensation for agreeing to transfer her rights).
Applying the principles of contract law to this settlement agreement, we conclude
that the trial court erred by enforcing terms that were not implied within the agreement.
Here, there is no indication in the record or transcripts that the release agreement was
intended by the parties. Instead, the record suggests that the settlement consisted entirely
ofFely's payment to Vanessa and dismissal ofthe dispute, which is sufficient
consideration for an enforceable settlement. See Rogich v. Dressel, 45 Wash. 2d 829, 843,
12
No. 86130-7
278 P.2d 367 (1954) (stating that in a settlement, consideration takes the form of payment
and release of claims, acting as an accord and satisfaction); Nationwide, 120 Wn.2d at
195 ("A good faith settlement of a dispute has been held to be sufficient consideration for
a compromise to settle that claim."). We cannot read the release proposed by Fely into
this otherwise valid settlement agreement when there is no evidence that the parties
intended such terms.
The trial court concluded the release was implied by incorrectly interpreting an
unpublished opinion from California, El-Fadly, 2005 WL 1503857, at *1. In El-Fadly,
the parties entered into a signed settlement agreement that stipulated the defendant would
prepare a "Settlement/Release Agreement" to facilitate the terms. ld. The release
prepared by the defendant included language outside of a general release, which the
plaintiffthen objected to. ld. at *1-2. The Court of Appeals considered the intent ofthe
parties and determined that only a general release was contemplated, rather than the
broader release that waived additional protected rights. ld. at *3. Here, unlike in El-
Fadly, there is no evidence from the record that the parties agreed to the release proposed
by Fely.
Although the trial court improperly implied Fely's proposed release into the
agreement, its inclination to believe the parties intended a general release was correct
because a dismissal with prejudice has the effect of limiting future claims. However, the
release the court deemed signed went far beyond the scope of a release that is achieved
through a dismissal with prejudice. For instance, the release stated: .
13
No. 86130-7
The undersigned, in consideration ofFARMERS INSURANCE COMPANY
tendering the settlement check directly to releasor's attorney, without naming
lien holders as payees, further hereby covenants to defend, to indemnify, and
hold harmless FARMERS INSURANCE COMPANY, its attorneys, agents,
employees and assigns from and against all such lien and subrogation claims,
including all costs and attorney's fees incurred in the defense of such claims.
Clerk's Papers at 70. Yet there is no evidence from the record that these terms were
contemplated by the parties. When Vanessa agreed to dismiss her claims she only
released Fely as to those claims, she did not agree to indemnify or hold Farmers harmless
as to any other claims.
In so holding, we disagree with Fely's contention that the release she proposed
was implied and the burden was on Vanessa to object. Indeed, it follows from case law
that such a release must be expressly stated and not implied. See, e.g., Howard, 70 Wn.
App. at 739 (trial court improperly enforced settlement where agreement prior to
settlement was not reached on hold harmless and release documents); Skiles v. Farmers
Ins. Co., 61 Wash. App. 943, 945, 814 P.2d 666 (1991) (release and hold harmless
agreement obtained as part of a settlement); In reMarriage of Greenlee, 65 Wash. App.
703, 709, 829 P.2d 1120 (1992) (discussing a hold harmless provision within a settlement
agreement).
Both parties are seeking sanctions and attorney fees. Fely is requesting sanctions
against Vanessa for citing to unpublished authority and citing to matters outside the
record. In Vanessa's motion for discretionary review, she cited to an unpublished case,
Thurston v. Godsil, No. 48959-3-1, 2003 WL 21690529 (Wash. Ct. App. July 21, 2003)
14
No. 86130-7
(unpublished), in violation of GR 14.1(a). 5 Additionally, Vanessa also cited to an
unpublished New York opinion, First United Methodist Church v. Tot-Spot, Inc., 32
Misc. 3d 1242, 938 N.Y.S.2d 226 (Dist. Ct. 2011). GR 14.1(b) authorizes a party to cite
to unpublished opinions from other jurisdictions if citation to the opinion would be
permitted in the jurisdiction of the issuing court. In New York, case law suggests
unpublished opinions are entitled to respectful consideration, but are not binding
precedent. Eaton v. Chahal, 146 Misc. 2d 977, 983, 553 N.Y.S.2d 642 (1990). However,
even if an unpublished case may be cited in another jurisdiction, GR 14.l(b) still requires
the party to file and serve a copy of the opinion with the brief, which Vanessa did not do.
Fely contends that Vanessa should be sanctioned for her reliance on these cases,
citing to Skamania County v. Woodall, 104 Wash. App. 525, 536 n.11, 16 P.3d 701 (2001),
for the rule that "[ u]npublished opinions have no precedential value and should not be
cited or relied upon in any manner." 6 To the extent Vanessa violated GR 14.1, we
strongly disapprove but will not sanction Vanessa or her attorney as Fely requests.
Rather, as the Court of Appeals in Woodall admonished, we will not consider the cases in
violation of this rule. We also will not sanction Vanessa for referencing matters outside
of the record, as Fely contends. While Vanessa does refer to Fely's insurance coverage
5
GR 14.1(a) states that "[a] party may not cite as an authority an unpublished opinion of the
Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not
published in the Washington Appellate Reports."
6
Although Fely claims in her brief that the Woodall court sanctioned the party making the
improper citation, this is inaccurate. The court only said that the superior court relied heavily
upon an unpublished opinion and stated the aforementioned rule that unpublished opinions
should not be relied upon. Woodall, 104 Wn. App. at 536 n.11.
15
No. 86130-7
and the UIM claim, these matters are central to this case and are discussed in the record,
including during settlement.
Nor will we impose sanctions against Fely, as Vanessa requests. Vanessa argues
that we should sanction Fely for bringing a claim that is not well grounded in fact or
warranted by existing law under CR 11(a). This is not the type ofmeritless appeal that
requires sanctions. See Bryant v. Joseph Tree, Inc., 119 Wash. 2d 210, 219, 829 P.2d 1099(1992) (stating that "[t]he purpose behind CR 11 is to deter baseless filings and to curb
abuses of the judicial system," but "the rule is not intended to chill an attorney's
enthusiasm or creativity in pursuing factual or legal theories").
Fely is requesting attorney fees under RAP 18.1, contending that Vanessa's appeal
was not based on law and facts and that the criteria for direct review are not satisfied.
Since this court accepted review, Fely is not entitled to attorney fees.
Vanessa also is not entitled to attorney fees under Olympic Steamship Co. v.
Centennial Insurance Co., 117 Wash. 2d 37, 53-54, 811 P.2d 673 (1991). In Colorado
Structures, Inc. v. Insurance Co. ofthe West, 161 Wash. 2d 577, 606-07, 167 PJd 1125
(2007), we agreed with the lower court's determination that Olympic Steamship applies
when an insurer contests the meaning of a contract, but not when it contests other
questions, including tort liability. See also McRory v. N. Ins. Co. of N.Y., 13 8 Wash. 2d
550, 555, 980 P.2d 736 (1999) ("We have declined to award fees under this exception
where the case did not concern a coverage issue, but rather a dispute over the value of the
claim after the insurer had accepted coverage."). Here, no party is contesting the
16
No. 86130-7
meaning of the insurance contract. Instead, there is only a question as to the terms of the
settlement.
CONCLUSION
We hold that Vanessa Condon did not waive her right to appeal by taking the
settlement check. Additionally, we hold that the trial court erred when it implied and
enforced additional terms that were not agreed to by the parties. We reverse the trial
court. Sanctions and attorney fees will not be imposed.
17
No. 86130-7
WE CONCUR:
18