1 • • 2
4 RICHARD A. SHARROCK and ) 5 CHRISTINA M. SHARROCK ) 6 Plaintiffs, ~ ) ,, '
~) DEFENDANTS' MOTION TO 7 DECISION AND ORDER 8 vs. ) ENFORCE SETTLEMENT 9 ) 10 QUINTEN M. McCOY, PACIFIC ~ INDEMNITY INSURANCE COMPANY, and ) 11 DOE DEFENDANTS 1-10, ) ) 12 Defendants. ) ) 13 ) ) 14 ) ) 15 ) ) 16
17 INTRODUCTION 18
19 This matter came before the Honorable Anita A. Sukola on November
20 Defendants' Motion to Enforce Settlement. Attorney Wayson W.S. Wong represented Plaint ffs and 21 Attorney Joyce C.H. Tang represented Defendants. Following the hearing, the Court took th matter 22 under advisement. Having considered the parties' arguments and the applicable law, the Co rt now 23 issues its Decision and Order GRANTING Defendants' Motion to Enforce Settlement. 24
25 BACKGROUND
26 On October 5, 2005, Richard Sharrock was injured when the automobile in which e was 27 traveling on Route 1, Naval Base, Guam, collided with an automobile owned and driven by n off- 28
Page 1 cv 113 1 -07: Sharrock and Sharrock v .. McCoy, Pacific Indemnity Ins. Co. Defendants' Mot. To Enforce Settlemen t
ORIGINAL 1 • • duty sailor, Quinten McCoy. On October 4, 2007, Mr. Sharrock and his wife, Christina, bro ght suit
2 against Mr. McCoy and his insurer, Pacific Indemnity Insurance Company. In their Co
3 Plaintiffs allege that Defendant McCoy negligently caused the collision and is liable for P intiffs' 4 injuries and damages. (Compl. ~~ 10-14, 16-17.) Plaintiffs further claim that, "[p]ursu 5 G.C.A. § 18305, [P]laintiffs are entitled to maintain this direct action against Pacific Inde "ty and 6
to recover from it for their injuries and damages, up to the applicable policy limits." (Comp. ~~ 19- 7
a 22.) On June 25,2008, Defendants offered a settlement in the amount of the policy limit,
9 (Def. Mem. Tang Decl. Ex. 1.) 10 Plaintiffs also brought suit in United States District Court for the District of Gua 11 the United States on a theory of respondeat superior. On November 20,2008, the parties st pulated 12
13 to a stay of Superior Court proceedings because the outcome ofPlaintiffs' federal action bo eon the
14 instant matter. From 2009 through 2012, this Court repeatedly granted continuances at the request
15 of Defendants' counsel due to the pendency of the federal matter; Plaintiffs' couns rarely 16 appeared for these hearings. On June 3, 2010, the District Court granted summary judgme for the 17 government, and on March 14,2012, the Ninth Circuit affirmed. Sharrock v. United Stat s, 2010 18
19 WL 2278580 (D.Guam 201 0), affd, 673 F.3d I 117 (9th Cir. 2012) (holding that a service ember
20 en route to participation in a recreational activity, where participation is encouraged ut not 21 required by the Navy, is not acting in the line of duty). 22 On December26, 2012 and January 30,2013, Defendants' counsel informed the C urtthat 23 the case had settled. Plaintiffs' counsel was not present at either of these hearings. On Feb ary 26, 24
25 2013, however, Plaintiffs' counsel denied that the parties reached a settlement an cited
26 Defendants' refusal to provide certain releases as the reason the parties failed to settle; he further 27
Page 2 cv 1131-07: Sharrock and Sharrock v. McCoy, Pacific Indemnity I ns. Co . Defendants' Mot. To Enforce Settlement 1 • • indicated that the matter would proceed to trial. Defendants' counsel reiterated that th matter
2 settled.
3 Defendants filed a Motion to Enforce Settlement on October 17, 2013, Plaintiffs filed an 4 Opposition on November4, 2013, and Defendants filed a Reply on November 8, 2013. Th 5 submitted declarations and exhibits in support of their motions. The Court heard oral arg ent on 6
November 19,2013, and now issues its Decision and Order. 7
8 DISCUSSION
9 Defendants contend that a "settlement for the policy limits of$25,000 has been agr ed to by 10 the parties" but that, at the request of Plaintiffs' counsel and out of professional court y, "the 11 settlement was held in abeyance for five (5) years while Plaintiffs pursued" the suit ag inst the 12
13 United States in federal court. (Def. Mem. at 1-4, 14-15; Def. Reply Mem. at 1-6; Civille eel.~~
14 3-11.) In support oftheir position, Defendants proffered numerous exhibits such as decl rations, 15 emails, and transcripts from current counsel, former counsel, and other persons related tot s case. 16 (Def. Mem. Tang Decl.; Def. Reply Mem. Tang Decl.; Civille Decl.; Travis Decl.) De 17 request that the Court enforce the settlement agreement and dismiss the case. (Def. Mem. t 1, 14- 18
19 15.)
20 Plaintiffs acknowledge that the parties attempted to settle the matter, but deny hat the 21 parties ever reached an agreement and assert that Defendants' failure to provide two eleases 22 resulted in the failure to settle. (Pl. Opp. Mem. at 1-4, 11-15, 22; Wong Decl.) Plaintiff: further 23 argue that none of Defendants' exhibits demonstrate the requisite meeting of the mi ds. Id. 24
25 Plaintiffs therefore request that the Court deny Defendants' motion and proceed to trial. I .
26 A settlement agreement is enforceable like any other binding contract and ontract 27 principles apply to the interpretation of such an agreement. Bias v. Cruz, 2009 Guam 1 , ~ 11 28
Page 3 cv 11 31 -07 : Sha rrock and Sharrock v . McCoy , Pacific Indemnity Ins. co. Defendants' Mot. To Enforce Settlement 1 • (citing Leon Guerrero v. Moylan, 2000 Guam 28, ~~ 8-9); see also 15A C.J.S. Comonmise &
2 Settlement§ 77; 15B Am. Jur. 2d Compromise and Settlement§§ 40-41. A movant acc prdingly
3 must prove by a preponderance of the evidence the existence of an agreement, i.e., by bowing 4 offer, acceptance, and consideration. Blas v. Cruz, 2009 Guam 12, ~ 18 (quoting Mobil 0 1Guam 5 Inc. v. Tendido, 2004 Guam 7, ~ 34) (internal quotations omitted); 15A C.J.S. Comor< mise & 6
Settlement § 84. Importantly, an oral settlement agreement may be enforced even if no 1e of its 7
8 terms were put on the record or reduced to writing, so long as the movant meets its b uden to
9 demonstrate the existence of the agreement. 18 G.C.A. § 861 04; Lvnch Inc. v. SamataMa on Inc. 10 279 F.3d 487, 490-91 (7th Cir. 2002); RE/MAX Int'l, Inc. v. Realty One, Inc., 271 F.3d < 33, 646 11 (6th Cir. 2001). In addition, "essential terms in the offer need only be reasonably certa'n" for a 12
13 contract to be formed upon acceptance. Mobil Oil Guam, Inc., 2004 Guam 7, ~ 3~ (citing
14 Charbonnages de France v. Smith, 597 F.2d 406, 417 (4th Cir. 1979)). 15 Generally, an evidentiary hearing must be held upon request of a party if mater al facts 16 concerning the existence or terms of an agreement to settle are in dispute. Callie v. Near, 829 F .2d 17 888, 890 (9th Cir. 1987); Malave v. Carney Hosp., 170 F.3d 217, 219-21 (1st Cir. 1999); \\ ilson v. 18
19 Wilson, 46 F.3d 660, 664 (7th Cir. 1995). Here, however, neither party requested an evi entiary
20 hearing; the parties instead submitted declarations and exhibits to supplement their written md oral 21 arguments. Rule 43(e) of the Guam Rules of Civil Procedure vests the Court with di cretion 22 regarding whether to receive oral testimony on motions: "[w]hen a motion is based on f cts not 23 appearing of record the court may hear the matter on affidavits presented by the respective parties, 24
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1 • • 2
4 RICHARD A. SHARROCK and ) 5 CHRISTINA M. SHARROCK ) 6 Plaintiffs, ~ ) ,, '
~) DEFENDANTS' MOTION TO 7 DECISION AND ORDER 8 vs. ) ENFORCE SETTLEMENT 9 ) 10 QUINTEN M. McCOY, PACIFIC ~ INDEMNITY INSURANCE COMPANY, and ) 11 DOE DEFENDANTS 1-10, ) ) 12 Defendants. ) ) 13 ) ) 14 ) ) 15 ) ) 16
17 INTRODUCTION 18
19 This matter came before the Honorable Anita A. Sukola on November
20 Defendants' Motion to Enforce Settlement. Attorney Wayson W.S. Wong represented Plaint ffs and 21 Attorney Joyce C.H. Tang represented Defendants. Following the hearing, the Court took th matter 22 under advisement. Having considered the parties' arguments and the applicable law, the Co rt now 23 issues its Decision and Order GRANTING Defendants' Motion to Enforce Settlement. 24
25 BACKGROUND
26 On October 5, 2005, Richard Sharrock was injured when the automobile in which e was 27 traveling on Route 1, Naval Base, Guam, collided with an automobile owned and driven by n off- 28
Page 1 cv 113 1 -07: Sharrock and Sharrock v .. McCoy, Pacific Indemnity Ins. Co. Defendants' Mot. To Enforce Settlemen t
ORIGINAL 1 • • duty sailor, Quinten McCoy. On October 4, 2007, Mr. Sharrock and his wife, Christina, bro ght suit
2 against Mr. McCoy and his insurer, Pacific Indemnity Insurance Company. In their Co
3 Plaintiffs allege that Defendant McCoy negligently caused the collision and is liable for P intiffs' 4 injuries and damages. (Compl. ~~ 10-14, 16-17.) Plaintiffs further claim that, "[p]ursu 5 G.C.A. § 18305, [P]laintiffs are entitled to maintain this direct action against Pacific Inde "ty and 6
to recover from it for their injuries and damages, up to the applicable policy limits." (Comp. ~~ 19- 7
a 22.) On June 25,2008, Defendants offered a settlement in the amount of the policy limit,
9 (Def. Mem. Tang Decl. Ex. 1.) 10 Plaintiffs also brought suit in United States District Court for the District of Gua 11 the United States on a theory of respondeat superior. On November 20,2008, the parties st pulated 12
13 to a stay of Superior Court proceedings because the outcome ofPlaintiffs' federal action bo eon the
14 instant matter. From 2009 through 2012, this Court repeatedly granted continuances at the request
15 of Defendants' counsel due to the pendency of the federal matter; Plaintiffs' couns rarely 16 appeared for these hearings. On June 3, 2010, the District Court granted summary judgme for the 17 government, and on March 14,2012, the Ninth Circuit affirmed. Sharrock v. United Stat s, 2010 18
19 WL 2278580 (D.Guam 201 0), affd, 673 F.3d I 117 (9th Cir. 2012) (holding that a service ember
20 en route to participation in a recreational activity, where participation is encouraged ut not 21 required by the Navy, is not acting in the line of duty). 22 On December26, 2012 and January 30,2013, Defendants' counsel informed the C urtthat 23 the case had settled. Plaintiffs' counsel was not present at either of these hearings. On Feb ary 26, 24
25 2013, however, Plaintiffs' counsel denied that the parties reached a settlement an cited
26 Defendants' refusal to provide certain releases as the reason the parties failed to settle; he further 27
Page 2 cv 1131-07: Sharrock and Sharrock v. McCoy, Pacific Indemnity I ns. Co . Defendants' Mot. To Enforce Settlement 1 • • indicated that the matter would proceed to trial. Defendants' counsel reiterated that th matter
2 settled.
3 Defendants filed a Motion to Enforce Settlement on October 17, 2013, Plaintiffs filed an 4 Opposition on November4, 2013, and Defendants filed a Reply on November 8, 2013. Th 5 submitted declarations and exhibits in support of their motions. The Court heard oral arg ent on 6
November 19,2013, and now issues its Decision and Order. 7
8 DISCUSSION
9 Defendants contend that a "settlement for the policy limits of$25,000 has been agr ed to by 10 the parties" but that, at the request of Plaintiffs' counsel and out of professional court y, "the 11 settlement was held in abeyance for five (5) years while Plaintiffs pursued" the suit ag inst the 12
13 United States in federal court. (Def. Mem. at 1-4, 14-15; Def. Reply Mem. at 1-6; Civille eel.~~
14 3-11.) In support oftheir position, Defendants proffered numerous exhibits such as decl rations, 15 emails, and transcripts from current counsel, former counsel, and other persons related tot s case. 16 (Def. Mem. Tang Decl.; Def. Reply Mem. Tang Decl.; Civille Decl.; Travis Decl.) De 17 request that the Court enforce the settlement agreement and dismiss the case. (Def. Mem. t 1, 14- 18
19 15.)
20 Plaintiffs acknowledge that the parties attempted to settle the matter, but deny hat the 21 parties ever reached an agreement and assert that Defendants' failure to provide two eleases 22 resulted in the failure to settle. (Pl. Opp. Mem. at 1-4, 11-15, 22; Wong Decl.) Plaintiff: further 23 argue that none of Defendants' exhibits demonstrate the requisite meeting of the mi ds. Id. 24
25 Plaintiffs therefore request that the Court deny Defendants' motion and proceed to trial. I .
26 A settlement agreement is enforceable like any other binding contract and ontract 27 principles apply to the interpretation of such an agreement. Bias v. Cruz, 2009 Guam 1 , ~ 11 28
Page 3 cv 11 31 -07 : Sha rrock and Sharrock v . McCoy , Pacific Indemnity Ins. co. Defendants' Mot. To Enforce Settlement 1 • (citing Leon Guerrero v. Moylan, 2000 Guam 28, ~~ 8-9); see also 15A C.J.S. Comonmise &
2 Settlement§ 77; 15B Am. Jur. 2d Compromise and Settlement§§ 40-41. A movant acc prdingly
3 must prove by a preponderance of the evidence the existence of an agreement, i.e., by bowing 4 offer, acceptance, and consideration. Blas v. Cruz, 2009 Guam 12, ~ 18 (quoting Mobil 0 1Guam 5 Inc. v. Tendido, 2004 Guam 7, ~ 34) (internal quotations omitted); 15A C.J.S. Comor< mise & 6
Settlement § 84. Importantly, an oral settlement agreement may be enforced even if no 1e of its 7
8 terms were put on the record or reduced to writing, so long as the movant meets its b uden to
9 demonstrate the existence of the agreement. 18 G.C.A. § 861 04; Lvnch Inc. v. SamataMa on Inc. 10 279 F.3d 487, 490-91 (7th Cir. 2002); RE/MAX Int'l, Inc. v. Realty One, Inc., 271 F.3d < 33, 646 11 (6th Cir. 2001). In addition, "essential terms in the offer need only be reasonably certa'n" for a 12
13 contract to be formed upon acceptance. Mobil Oil Guam, Inc., 2004 Guam 7, ~ 3~ (citing
14 Charbonnages de France v. Smith, 597 F.2d 406, 417 (4th Cir. 1979)). 15 Generally, an evidentiary hearing must be held upon request of a party if mater al facts 16 concerning the existence or terms of an agreement to settle are in dispute. Callie v. Near, 829 F .2d 17 888, 890 (9th Cir. 1987); Malave v. Carney Hosp., 170 F.3d 217, 219-21 (1st Cir. 1999); \\ ilson v. 18
19 Wilson, 46 F.3d 660, 664 (7th Cir. 1995). Here, however, neither party requested an evi entiary
20 hearing; the parties instead submitted declarations and exhibits to supplement their written md oral 21 arguments. Rule 43(e) of the Guam Rules of Civil Procedure vests the Court with di cretion 22 regarding whether to receive oral testimony on motions: "[w]hen a motion is based on f cts not 23 appearing of record the court may hear the matter on affidavits presented by the respective parties, 24
25 but the court may direct that the matter be heard wholly or partly on oral testimony or depc ~ition."
26 See also Fed. R. Civ. P. 43(c) (substantially similar source of Guam Rule 43); Miles v. I eo' t of 27 Army, 881 F .2d 777, 784 (9th Cir. 1989) ("A district court has wide discretion in deciding' vhether 28
Page 4 cv 1131- 0 7 : Sharrock and Sha rrock v. McCoy, Pa c i fic Indemnity I ns . Co. Defendants' Mot . To Enforce Se t tlement 1 • • oral testimony shall be heard in support of a motion."). Moreover, the testimony of a wi ess may
2 be taken by affidavit or declaration. 6 G.C.A. §§ 4308, 7301; see also 28 U.S.C.
3 (substantially similar source of§ 4308). The parties' declarations comport with § 430 4 discussed below, the issue before the Court is a narrow one. The Court is therefore satis d from 5 the briefs, declarations, exhibits, and oral arguments that an evidentiary hearing is not nee ssary in 6 this case. See United Commercial Ins. Serv., Inc. v. Paymaster Com., 962 F.2d 853, 856 58 (9th 7
8 Cir. 1992), cert. denied, 506 U.S. 1022 (1992) (declining to adopt "blanket rule requi
9 testimony" where potential testimony already was contained in declarations submitted); Ba Junkie 10 Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556, 560-63 (8th Cir. 2008) (recognizin 11 court' s "considerable discretion" and holding that court was not required to hold an evi entiary 12
13 hearing sua sponte in deciding whether to enforce settlement agreement).
14 The parties thoroughly briefed and argued this matter. In particular, the parties sup lied the 15 Court with declarations from the principal actors in the settlement, including Defendan ' three 16 counsels, Plaintiff Richard A. Sharrock, and Plaintiffs' counsel. The Court has consid red the 17 parties' assertions-as gleaned from court appearances, memoranda, declarations, 18
19 arguments on the instant motion-in conjunction with emails and letters from current an
20 counsel drafted throughout the pendency of the instant litigation as well as its federal co 21 Upon review, it is apparent that there is little dispute about the applicable law and facts of 22 the parties diverge only in their use of the documentary evidence to corroborate their re 23 positions. Simply put, the narrow question before the Court is whether Defendants have sho by a 24
25 preponderance of the evidence that the parties orally agreed to settle Plaintiffs' suit for De endant
26 Pacific Indemnity's policy limit of$25,000. 27
Page 5 cv 1131 -07 : Sha r roc k and Sharro ck v . McCo y, Pac if i c Indemnity Ins. Co . Defe n dants' Mot. To Enfo rce Se ttlement 1 • Dispositive in this case are the following uncontroverted facts. Defendants' pre ecessor
2 counsel offered the policy limits in 2008, and the offer never was rescinded or modified. (Civille
3 Decl. ~~ 3-8; Def. Mem. Tang Decl. Ex. 1.) The furnished offer mirrors the relief requ sted by 4 Plaintiffs in Count III of their Complaint-i.e., policy limits of $25,000 from Defendan Pacific 5 Indemnity- and there is no indication that either party took exception to the offer terms (e cept for 6
Plaintiffs' 2012 request for two releases). (Compl. ~~ 19-22; Def. Mem. Tang Decl. Ex. -3, 18.) 7
8 Plaintiffs do not contend that their counsel lacked authority to accept an offer. On several o casions
9 from 2009 through 2012, the Court threatened to dismiss the case on account of inac ion and 10 granted continuances at the request of Defendants' counsel due to the pendency of th 11 matter. Defendants' counsel continually apprised the Court of the status ofboth cases in the 12
13 ofPlaintiffs' counsel and with the latter counsel's knowledge and consent. (Travis Decl. ~~
14 November 29,2011, Plaintiffs' counsel informed the Court that the case has "been basicall settled
15 in the Superior Court but we cannot effect settlement until the federal court case has been d cided." 16
17 States, 2010 WL 2278580 (D.Guam 2010), affd, 673 F.3d 1117 (9th Cir. 2012). On Dec ber 5, 18
19 2012, Defendants' counsel informed the Court that the matter was "inching" toward a co
20 and, on December 26, 2012 and January 30, 2013, Defendants' counsel unequivocally st ed that 21 the case had settled. Plaintiffs' counsel, again, failed to attend these hearings- 22 sanctionable per Rule 41 .1 of the Local Rules of the Superior Court and Rule 37(b) of the 23 Civil Procedure. On February 26, 2013, Plaintiffs' counsel appeared before the Court an 24
25 that the parties reached a settlement, while Defendants' counsel reiterated that the matter settled.
26 Each of these facts supports Defendants' contention that the matter settled 27 Defendants assented to holding the matter in abeyance out of professional courtesy so that P aintiffs 28
Page 6 CV 1131-07 : Sharrock and Sharrock v . McCoy, Pa cific Indemnity Ins. Co. Defendants ' Mot . To En force Settlement 1 • • could first resolve their federal case. Plaintiffs' counsel evidently confirmed as much on N vember
2 29, 2011. Furthermore, although as non-movants Plaintiffs bear no burden of proof, it must
3 that Plaintiffs' denial of the settlement is plainly inconsistent with the facts. Plaintiffs' asse ion that 4 settlement was impeded by Defendants' refusal to issue releases is likewise unpersuasive ecause 5 Plaintiffs' request originated in late 2012. (Def. Mem. Tang Dec!. Ex. 14, 21-24, 30.) T e great 6
weight of the evidence supports the conclusion that, from 2008 onward, this case was se led but 7
8 remained in a holding pattern. The Court further finds that Defendants' counsel was redible
9 generally in her court appearances throughout the course of this matter and specifical when 10 informing the Court of the settlement. Plaintiffs' reference to the releases from late 2012 o 11 wholly undermined by the indicia of settlement throughout the course of this litigation. Th Court, 12
13 therefore, finds that Defendants have shown by a preponderance of the evidence that th
14 orally agreed to settle. Accordingly, Defendants' Motion to Enforce Settlement is GRA ED. 15
16 CONCLUSION 17 By a preponderance of the evidence and based on the foregoing reasons, th Court 18
19 GRANTS Defendants' Motion to Enforce Settlement.
20 SO ORDERED this / Y day of February, 2014. 21
24 Judge, Superior Court of Guam 25
Page 7 cv 1131-07: Sharr ock and Sh arrock v . Mc Coy , Pacific I nd e mn ity Ins. Co. Defendants ' Mot . To Enforce Set t l ement