Lancaster v. Royal Insurance Co. of America

709 P.2d 254, 76 Or. App. 436

• Court: Court of Appeals of Oregon
• Decided: November 20, 1985
• Docket: A8402-01107; CA A35364
• Status: Published

Opinion

WARDEN, J.

Plaintiff brought this action to recover damages for personal injuries he sustained in an automobile accident caused by the negligence of Joseph Martin, who was employed at the time of the accident by defendant Columbia Fence Co. Defendant Royal Insurance Company is Columbia’s insurer. Plaintiff appeals from the summary judgment in favor of Royal.¹ We affirm.

Before bringing the present action, plaintiff brought an action against Martin. In settling that action, plaintiff and Martin entered into an agreement whereby Martin assigned to plaintiff “all his rights of recovery * * * and enforcement of obligations” against Columbia, its insurers “and all other persons having any responsibility or liability for the judgment entered in favor of [plaintiff] against Mr. Martin.” In return, plaintiff promised “not to enforce said judgment against Mr. Martin by execution or any other manner.” After the agreement was executed, a stipulated judgment was entered in plaintiffs favor.

Plaintiff then brought this action, alleging, inter alia, that Royal is liable to plaintiff as Martin’s assignee for the amount of the judgment that Martin owes plaintiff. The insuring provision of Royal’s policy provides, as relevant, that it “will pay all sums the insured legally must pay as damages because of bodily injury or property damage.”² The trial court granted Royal’s motion for summary judgment on the apparent basis that, under Stubblefield v. St. Paul Fire & Marine, 267 Or 397, 517 P2d 262 (1973), plaintiffs promise not to enforce the judgment he later obtained against Martin means that Martin is not legally obligated to pay damages to plaintiff and, therefore, plaintiff, as Martin’s assignee, is not entitled to recover from Royal.

Policy considerations and the law as the Supreme Court had construed it before it decided Stubblefield, see Groce v. Fidelity General Insurance, 252 Or 296, 448 P2d 554 (1968), support plaintiffs position. However, we must agree with the trial judge that Stubblefield is controlling and requires the result he reached. See also Collins v. Fitzwater, 211 Or 401, 409-11, 560 P2d 1074 (1977).³ None of plaintiffs efforts to distinguish this case from Stubblefield succeeds.

Affirmed.

1 Plaintiffs action against Columbia was not resolved by the judgment from which plaintiff appeals. The trial court certified the judgment as final pursuant to ORCP 67B. We assume for purposes of this opinion that Royal’s coverage applied to Martin in connection with the accident.

2 The policy defines “insured” to include “[ajnyone * * * using with [the named insured’s] permission a covered auto.” Although plaintiff argues otherwise, Martin’s relationship to Royal was simply that of an “insured,” if Royal’s coverage was available to Martin at all under the circumstances. See n 1, supra.

3 It is clear under Groce and Collins, as we understand them, that plaintiffs action would not be defeated by Stubblefield if the judgment in plaintiffs action against Martin had been entered before the assignment had been executed. Although there is some logic to that distinction, it seems to us rather unlikely that Martin would have stipulated to the judgment before obtaining plaintiffs promise not to enforce it. The usual sequence of events is for parties to agree to a settlement before they stipulate to a judgment.