Jon & Alicyn Komine, Resp. v. Metropolitan Property & Casualty Insurance, App.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JON KOMINE and ALICYN KOMINE,
husband and wife, No. 70707-8-
Respondents, DIVISION ONE
v. UNPUBLISHED OPINION
HUMBERT ANGUIANO and "JANE DOE"
ANGUIANO, husband and wife, and the
marital community composed thereof,
Defendants,
METROPOLITAN PROPERTY AND
CASUALTY CO.,
Appellant. FILED: October 6, 2014
Appelwick, J. — MetLife, Komine's underinsured motorist insurer, intervened in
her negligent driving suit against Anguiano. Komine settled and stipulated to dismissal
of her claims against Anguiano. The case was dismissed. Though Komine and MetLife
pleaded no claims against each other, Komine obtained an order vacating the dismissal
as to MetLife. MetLife appeals that vacation and argues that it is entitled to dismissal.
The parties to the stipulation did not intend to and the stipulation did notdismiss anything
other than the defendant and the claims against the defendant. We affirm.
FACTS
Metropolitan Property and Casualty Insurance Company (MetLife) provides
underinsured motorist (UIM) coverage to Alicyn and Jon Komine. On December 20,
2009, Humberto Anguiano rear-ended the Komines when they were stopped at a red
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light. The Komines both suffered injuries. They sued Anguiano for negligent driving on
October 31, 2011.
Anguiano had liability insurance through Farmers Insurance Company. However,
the Komines claimed damages that exceeded the amount available under Aguiano's
policy. The parties stipulated to MetLife's intervention.
In May 2012, Farmers agreed to payAlicyn $30,000, the limit of Anguiano's policy.
MetLife waived its subrogation rights to Alicyn's tort claim. In August, Jon settled with
Farmers within policy limits.1
After Jon's claims were settled, Farmers' attorney sent a stipulation and order of
dismissal to the Komines' attorney, Corrie Yackulic. The stipulation said, "It is hereby
stipulated by and between the parties hereto that the above-entitled matter has been fully
settled and compromised and may be dismissed with prejudice and without costs." The
order of dismissal stated that, "IT IS ORDERED that the above-entitled matter be, and
the same is hereby dismissed with prejudice and without costs."
Both Yackulic and defense counsel signed the stipulation and order. MetLife's
counsel did not. MetLife was not notified or served a copy of the order. The court signed
and entered the stipulation and order on August 27, 2012.
Komine sent MetLife a settlement demand on August 9, 2012. On August 14, the
parties agreed that Komine would authorize release of her medical records to MetLife.
They also agreed that MetLife would take Komine's deposition by mid- to late-October
and that Komine would extend MetLife's response deadline to early November.
1Alicyn Komine's UIM claim against MetLife is the subject of this appeal. Going
forward, we refer to Alicyn as "Komine" and Jon as "Jon" or "Jon Komine." We intend no
disrespect by our use of first names.
No. 70707-8-1/3
On October 8, 2012, MetLife's attorney, Eric Newman, filed a notice of
unavailability in the action. The court clerk then contacted Newman and told him that all
claims in the case were dismissed, including those against MetLife.
On November 13, 2012, Newman wrote to Yackulic telling her what the clerk said.
He asked, "Should Itake that to mean that your client is no longer seeking to recover UIM
benefits from MetLife for the subject accident?" He closed the letter, "Please let me
know." Yackulic called Newman upon receipt of the letter. She assured him that Komine
still intended to pursue her UIM claim.
The next day, Yackulic wrote to Newman asserting that the stipulation and order
did not dismiss Komine's UIM claim. Yackulic included a proposed stipulated motion to
vacate or amend the order of dismissal. She indicated that, if the parties could not reach
a settlement, Komine would move to vacate the order.
In December 2012, Newman told Yackulic that MetLife would not sign the
stipulated motion. However, MetLife still wished to settle Komine's UIM claim. Komine
sent MetLife a new settlement demand in early 2013. MetLife sent a counteroffer on
February 25, leaving it open until March 13. Komine apparently did not accept. She
reached out to MetLife again on May 24. The parties were ultimately unsuccessful in
reaching a settlement.
On June 20, 2013, Komine moved to vacate the order of dismissal. The court
granted her motion as to the UIM claim against MetLife. MetLife appeals.
No. 70707-8-1/4
STANDARD OF REVIEW
We review a trial court's order vacating a judgment for abuse of discretion. Jones
v. City of Seattle. 179 Wash. 2d 322, 360, 314 P.3d 380 (2013). We will reverse its decision
only when no reasonable person would take the position adopted by the trial court.
Morgan v. Burks, 17 Wash. App. 193, 198, 563 P.2d 1260 (1977). We may affirm the trial
court on any basis supported by the record. Amy v. Kmart of Wash., LLC, 153 Wash. App.
846, 868, 223 P.3d 1247 (2009). Our primary concern is that the trial court's decision is
just and equitable. TMT Bear Creek Shopping Center, Inc. v. Petco Animal Supplies,
Inc., 140 Wn. App. 191,200, 165 P.3d 1271 (2007).
ANALYSIS
We begin by noting the awkward posture of this case. The parties ask us to
consider whether the trial court erred in reinstating Komine's UIM claim against MetLife.
But, Komine's complaint alleged no claims against MetLife. MetLife alleged no
counterclaims against Komine. Komine has not amended her complaint. Nor has she
asserted that MetLife denied her UIM claim. Consequently, we fail to see a claim left to
reinstate.
MetLife urges that it is entitled to dismissal by virtue of its status as an intervenor.
We do not dispute that an intervenor becomes a full party to an action. Fairfield v. Binnian,
13 Wash. 1, 4, 42 P. 632 (1895). We also acknowledge that MetLife, as an insurer with
notice and the opportunity to intervene, is bound by judgment entered in this action. See
Fisher v. Allstate Ins. Co., 136 Wash. 2d 240, 246, 961 P.2d 350 (1998). But, these
principles are not determinative here. A breach of contract claim for UIM coverage was
not pleaded. Nor could it have been at that time. Thus, there was no determination of
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liability, calculation of damages, or judgment as to the UIM claim. Instead, there was a
resolution and dismissal of the claims against only Anguiano. MetLife wants to step into
his shoes, but there are none left to fill. Komine succeeded in reinstating the cause
number with the intervenor as the lone defending party, but with no claims pending. It
was not necessary to revive a UIM claim that had not been pleaded, let alone
extinguished. Nonetheless, MetLife asserts that the trial court erred in vacating the order,
and so we now consider the propriety of that decision.
Komine moved to vacate for mistake under CR 60(a) and CR 60(b). To determine
whether a mistake occurred, we must first ask whether, as a matter of law, the order of
dismissal applied to Komine's UIM claim against MetLife. This question was not briefed
on appeal or below.
Final judgments entered by stipulation or consent are contractual by nature.
Martinez v. Kitsap Pub. Servs., Inc., 94 Wash. App. 935, 942, 974 P.2d 1261 (1999). "The
touchstone of contract interpretation is the parties' intent." Tanner Elec. Coop, v. Puqet
Sound Power & Light, 128 Wash. 2d 656, 674, 911 P.2d 1301 (1996). The court may
determine the parties' intent from the actual language of the agreement, as well as from
"'the contract as a whole, the subject matter and objective of the contract, all the
circumstances surrounding the making of the contract, the subsequent acts and conduct
of the parties to the contract, and the reasonableness of respective interpretations
advocated by the parties.'" id. (internal quotation marks omitted) (quoting Scott
Galvanizing, Inc. v. Nw. Enviroservices, Inc., 120 Wash. 2d 573, 580-81, 844 P.2d 428
(1993))
No. 70707-8-1/6
In Martinez, codefendants Chico and Miller settled with the plaintiffs before trial.
94 Wash. App. at 939. The parties agreed to dismiss with prejudice "all claims which now
exist or which may exist in the future among and between the plaintiffs and defendants
arising out of the incident." jd, at 939-40 (emphasis omitted). The defendants then
disputed whether this effectively dismissed Chico's cross claim against Miller. jd, at 940-
41. The trial court ruled that it did. Id. The Court of Appeals reversed, finding that the
parties did not intend to dismiss the cross claim. Id, at 948-49. Importantly, the order
dismissed all claims "between the plaintiffs and defendants"—not between the
defendants. Id. at 945. And, Chico's conduct demonstrated that it did not intend to
dismiss its cross claim, jd. at 946. Chico consistently indicated to Miller and to the
plaintiffs that it would pursue its cross claim, and Chico did so after entry of the order of
dismissal, jd. at 946.
Conversely, in Mutual of Enumclaw Insurance Co. v. State Farm Mutual Insurance
Co.. 37 Wash. App. 690, 694, 682 P.2d 317 (1984), the court found that the parties' general
settlement agreement dismissed Mutual's cross claim against codefendant State Farm.
Mutual indicated on October 19, 1977 that it intended to seek indemnification from State
Farm. Id, at 692. On October 24, the parties reached a settlement and entered an order
of dismissal stating, "'[A]ll claims in this action shall be dismissed with prejudice and
without costs.'" Id, (alteration in original). Mutual did not raise the indemnification issue
again until August 26, 1980, almost three years later, jd. The court found that Mutual
waived its claim. Id at 694.
Here, as in Martinez, the stipulation used limiting language: "IT IS HEREBY
STIPULATED bv and between the parties hereto." (Emphasis added.) The "parties
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hereto" are the parties to the stipulation—the Komines and Anguiano, not MetLife.
MetLife was not even served a copy of the order. This is distinct from Mutual, where all
relevant parties agreed to the settlement that dismissed all claims in the action. See 37
Wash. App. at 692.
Komine's postjudgment behavior was analogous to Martinez as well. At all times,
she acted consistent with her understanding that the stipulation and dismissal applied
only to the defendant and not to MetLife. Throughout August 2012, Komine and MetLife
engaged in settlement negotiations. These negotiations were contemporaneous with the
settlement of Jon Komine's claims.
The defendant's behavior also demonstrates a lack of intent to dismiss claims
against MetLife. When Jon's claims were settled, Farmers' counsel drafted the stipulation
and order without including or notifying MetLife.
Komine's postdismissal behavior further demonstrates that she did not intend to
release her UIM claim. When MetLife asked about the scope of the dismissal, Komine
responded that it did not include MetLife and that she intended to pursue her UIM claim.
Komine maintained that position at all times. The parties continued to talk settlement for
roughly six months. When they were ultimately unsuccessful, Komine filed her motion to
vacate.
Based on the terms Farmers drafted and its presentation of the order, it is apparent
that it did not intend to dismiss MetLife. Likewise, Komine consistently demonstrated her
intent to continue pursuing her claim. The record shows that the parties to the stipulation
did not intend to dismiss Komine's UIM claim against MetLife.
No. 70707-8-1/8
The order of dismissal lacks the stipulation's limiting language. MetLife argues
that Yackulic was negligent in signing the order and that attorney negligence cannot be
the basis to vacate the order under CR 60(b). While the order could have been drafted
more artfully, Yackulic was not negligent in signing it. When a court order incorporates a
stipulation between parties, the meaning of the order is the same as the meaning
objectively manifested by the parties at the time they formed the agreement. Martinez,
94 Wash. App. at 942. This is because the parties' intent will be the court's intent. In re
Marriage of Boisen. 87 Wash. App. 912, 920, 943 P.2d 682 (1997). Thus, the court's order
bears the meaning of the parties' stipulation limiting the dismissal to the claims between
Komine and Anguiano. As a matter of law, the order of dismissal did not apply to MetLife
or to an unpleaded potential UIM claim against it.
CR 60(a) provides for vacation of judgment due to clerical errors and errors arising
from oversight or omission. Here, the court clerk overlooked the stipulation's language
limiting the dismissal to claims between Komine and Anguiano.2 This was a valid basis
to vacate the order under CR 60(a).3 See, e.g., Shaw v. City of Pes Moines, 109 Wn.
App. 896, 901, 903, 37 P.3d 1255 (2002) (vacating order of dismissal entered due to court
clerk oversight).
The dismissal did not relieve MetLife of its obligations under its contract with
Komine. Komine sought to protect her interests against MetLife's allegations otherwise.
2We note that the clerk's oversight was understandable. Farmers drafted the order
inartfully, not mirroring the language of the stipulation. And, both Yackulic and the court
overlooked the difference between the two.
3 The trial court did not state its basis for vacating the order. It made findings that
suggest it may have relied on CR 60(b). While we also find no error in vacating the order
under CR 60(b), we need not analyze that guestion here.
8
No. 70707-8-1/9
Against this background, the trial court did what was equitable and vacated the order of
dismissal as it pertained to MetLife. Though we perceive no point in reinstating a claim
that was never alleged, we find that the trial court did not abuse its discretion.
We affirm.
WE CONCUR:
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