Smith v. Settle

Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Keenan, and
Koontz, JJ., and Whiting, Senior Justice

ROBERT L. SMITH, JR.,
OPINION BY SENIOR JUSTICE HENRY H. WHITING
v. Record No. 961752 September 12, 1997

KENNETH J. SETTLE, JR., by and through
his father and next friend,
KENNETH J. SETTLE, SR., ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge

This appeal of consolidated personal injury cases raises

issues involving a so-called high-low agreement, sovereign

immunity, and rulings on jury instructions.
Kenneth J. Settle, Sr., was driving a car on State Route 1

in Prince William County when it was struck in the intersection

of Route 1 and Fuller Road by an ambulance of the Dumfries-

Triangle Rescue Squad, Incorporated. The ambulance was being

driven on Fuller Road by rescue squad member Robert L. Smith,

Jr., with its siren and red lights in operation. At that time,

the traffic light controlling the intersection was green in

Settle's direction and red in Smith's direction. Smith pled

guilty to a reckless driving charge arising from this collision.

Settle and the passengers in his vehicle, Dana Powell-Settle

and their minor children, Dana L. Powell-Settle and Kenneth J.

Settle, Jr., (by their next friend), filed separate personal

injury actions against Smith and the rescue squad. These actions

were "consolidated for all purposes, including trial."

1
Justice Stephenson participated in the hearing and decision of
this case prior to the effective date of his retirement on July 1,
1997.
 Pleas of sovereign immunity filed by Smith and the rescue

squad were sustained after a pretrial hearing. Hence, the

circuit court dismissed the rescue squad as a party defendant and

held that Smith could only be liable for "acts or omissions

constituting gross negligence." 2

Following presentation of the testimony at a subsequent jury

trial, counsel for the plaintiffs stated that the parties and the

primary liability insurance carrier of Smith and the rescue squad

had arrived at a high-low agreement. Although the statement was

made on the record in the presence of opposing counsel, the court
3
was not present. As counsel for the plaintiffs noted on brief,

the agreement was set out in the record "in its entirety." Among

other things, the agreement required that the primary carrier pay

the plaintiffs $350,000 if the jury returned verdicts for Smith. 4

Thereafter, the court heard argument on counsel's proposed
2
This issue was decided by Carleton Penn, Judge Designate.
3
When it was beneficial to either side's argument not to be
bound by the high-low agreement at various times during the course
of this prolonged litigation, that side noted the infancy of two
plaintiffs and the absence of court approval of the "settlement"
under Code § 8.01-424. Our decision makes it unnecessary to
consider what impact, if any, this Code section has upon such
high-low agreements.
4
On brief, counsel for plaintiffs notes that if the verdicts
were less than $350,000 plaintiffs would nevertheless receive
$350,000 and if the verdicts exceeded $1,000,000, the maximum
liability of the insured and primary carrier would be $1,000,000,
with the plaintiffs reserving their right to assert a claim for
the excess against the excess carrier. Additionally, he notes
that the plaintiffs would be paid any amount awarded between
$350,000 and $1,000,000 and that "[b]oth parties waived any right
to appeal."

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jury instructions and read the instructions it had granted to the

jury. After closing arguments by counsel, the jury deliberated

and returned verdicts for Smith.

Later, the plaintiffs refused the primary carrier's tender

of $350,000. Thereafter, the defendants filed a motion to

enforce the high-low agreement, which the court denied. Instead,

the court sustained the plaintiff-passengers' motions to set

aside the verdicts and to award a new trial because the jury had

been erroneously instructed that the passengers could not recover

if the driver of the Settle car was guilty of contributory

negligence. 5

After a second jury failed to agree upon the verdicts at the

second trial, a third trial was held in which a third jury

returned verdicts for Smith. Overruling the plaintiffs' motion

to set aside the verdicts, the court sustained their alternative

motions to enforce the high-low agreement and ordered "the

defendant insurer" to pay the plaintiffs $350,000, "as agreed by

the parties."

Smith appeals that part of the final order enforcing the
6
high-low agreement. The plaintiffs assign cross-error (1) to
5
The court overruled the remaining grounds of the plaintiff-
passengers' motion and overruled all grounds of Mr. Settle's
motion.
6
We find no merit in the plaintiffs' contention that Smith has
no right to appeal an order which held that the agreement was
binding and directed that his primary carrier comply with the
high-low agreement. As Smith points out on brief, he is entitled
to an ultimate disposition of a case he has won in the trial
court, but the final order leaves open the question of his

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the sustaining of Smith's plea of sovereign immunity and (2) to

the overruling of their motions to set aside the verdicts of the

third trial.

Smith contends that he is no longer bound by the high-low

agreement because the plaintiffs repudiated the agreement by

refusing his primary carrier's tender of $350,000 following the

return of the first verdict. The plaintiffs respond that their

refusal of the tender was justified under the agreement. We

agree with Smith.
Recognizing that there is no explicit provision in the

agreement requiring the jury to be "properly instructed on the

law," plaintiffs assert that it "was an implicit term of the

agreement [and] . . . there was no agreement not to seek post

verdict relief in the trial court." In his statement of the

terms of the agreement, counsel for the plaintiffs specifically

listed a number of terms and conditions relating to a reservation

of the plaintiffs' right to seek further recoveries from the

defendants' excess liability carrier. However, with regard to

the effect of expected verdicts, he said only that counsel on

behalf of the parties "have reached an agreement on a high/low

with respect to the verdict in the consolidated Settle cases."

Finding nothing in counsel's statement implying that a

"properly instructed" jury was part of the agreement or that

ultimate liability if his primary carrier did not honor the
agreement.

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either party could seek post-verdict relief in the trial court,

we will not rewrite the agreement to impose provisions that are

neither stated nor implied therein. Addison v. Amalgamated

Clothing and Textile Workers Union of America, 236 Va. 233, 236,

372 S.E.2d 403, 405 (1988). The plaintiffs' unjustified refusal

of the tender prevented performance of the agreement and gave

Smith the right to regard it as terminated. Boggs v. Duncan, 202

Va. 877, 882, 121 S.E.2d 359, 363 (1961). Therefore, we conclude

that the court erred in enforcing the high-low agreement.
Because the high-low agreement no longer bound Smith at the

time of the third trial, we turn to the sovereign immunity issue

raised in plaintiffs' assignments of cross-error. Since the

circuit court heard the evidence on the issue and sustained the

pleas of sovereign immunity, we resolve any conflicting evidence

in the light most favorable to Smith, the prevailing party on

this issue. See Carmody v. F.W. Woolworth Co., 234 Va. 198, 201,

361 S.E.2d 128, 130 (1987).

As the duty officer of the rescue squad at the time, Smith

was responsible for determining which personnel would ride in

each ambulance. Smith had more experience and qualifications

than personnel assigned to ride in the ambulance described as

"rescue squad three." Accordingly, Charles Kenny, the driver of

rescue squad three, and Smith agreed that if Kenny's ambulance

was dispatched by the Prince William County fire and rescue

communications center to the scene of an emergency while Smith

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was away from the station house, Kenny and Smith were to

establish radio contact to determine whether Smith would

accompany rescue squad three to the emergency.

Smith was away from the station house when he heard on his

radio that the rescue squad had been ordered to respond to an

emergency on Interstate Highway 95 (I-95) and that rescue squad

three was responding. Acting in accordance with the agreement,

Smith also responded to the order by driving his ambulance toward

I-95 and a location where he hoped to establish radio contact

with personnel in rescue squad three. Since rescue squad three

"needed personnel with more qualifications," and Smith had such

qualifications, he thought he might be compelled to dispatch

himself to the scene of the emergency. The collision occurred as

Smith was looking down to adjust the channel on his ambulance

radio to establish contact with rescue squad three.
The plaintiffs argue that Smith was not entitled to

sovereign immunity because: (1) his trip to a location where he

could establish radio contact was mere preparation for a possible

emergency dispatching; (2) he had not been dispatched to the

scene by the county fire and rescue communications center as

required by Prince William County Code § 7-29; (3) he was not

then responding "to the location of an emergency call" as

required by a regulation of the Board of Health; and (4) he was

not operating his vehicle with due regard to the safety of

persons and property as required by Code § 46.2-920.

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 However, we think that the evidence sufficiently supports

the court's finding that Smith was entitled to sovereign

immunity. The evidence supports a conclusion (1) that Smith's

ambulance trip was not mere preparation but an immediate and

necessary response to the emergency, and (2) that the trip was

made in conformity with the center's dispatch order and in

response to the location of an emergency call as required by the

county code and health board regulations. 7 Further, sufficient

evidence supports the third jury's factual finding that Smith had

complied with his duty not to be grossly negligent, the

controlling standard of care in sovereign immunity cases. Colby

v. Boyden, 241 Va. 125, 130, 400 S.E.2d 184, 187 (1991).

Accordingly, we reject the plaintiffs' contentions.

Next, we consider the plaintiffs' argument that the trial

court erred in refusing their tendered Instructions 13, 14, 24,

and 25, and in granting Smith's tendered Instructions T and U.

Refused Instructions 13 and 14, respectively, stated in effect

that Smith was permitted to exceed the speed limit and to proceed

through a red light. However, both tendered instructions had a

7
Contrary to the plaintiffs' characterization of Smith's trip
as "the simple operation of a vehicle in routine traffic," we
think the evidence supports a finding that the trip involved the
exercise of the discretion and judgment required by a person
performing a governmental function in operating a vehicle in
response to an emergency. Compare Heider v. Clemons, 241 Va. 143,
145, 400 S.E.2d 190, 191 (1991) with Colby v. Boyden, 241 Va. 125,
129-30, 400 S.E.2d 184, 186-87 (1991), and National R.R. Passenger
Corp. v. Catlett Volunteer Fire Co., 241 Va. 402, 412-13, 404
S.E.2d 216, 221-22 (1991).

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proviso that any such conduct could not constitute "a reckless

disregard of the safety of persons and property." The plaintiffs

note that this proviso describes "the same kind and degree" of

conduct proscribed by Code § 46.2-852, a reckless driving

statute, which they assert establishes the applicable standard of

care in these cases.

Granted Instructions T and U, respectively, contained

similar language regarding speed and proceeding through a red

light, but each had a different proviso articulating a different

standard for determining a deviation from the degree of care

required, namely that Smith was "not grossly negligent." In

Colby, we held that the sovereign immunity doctrine required a

showing of gross negligence to establish a violation of the

standard of care required of drivers in Smith's situation and

that former Code § 46.1-226 (now in substance Code § 46.2-920)

did nothing to abrogate that standard. 241 Va. at 130, 132, 400

S.E.2d at 187, 188-89. For this reason, Instructions 13 and 14

were properly refused and Instructions T and U were properly

granted.

Plaintiffs' tendered Instructions 24 and 25, as they were to

be amended, provided in effect that Smith owed the duties of

keeping his ambulance under proper control and keeping a proper

lookout and that if he failed to do so in a grossly negligent

manner, "he may be liable . . . in accordance with other

instructions of the court." We do not consider whether these

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instructions were proper statements of the law applicable to this

case for the following reasons.

Over Smith's objection, Gary Randolph Pope, a captain in the

Fairfax County fire department, was permitted to testify as the

plaintiff's expert witness on the factual issue of "the standard

of care as it applies to emergency vehicles proceeding through a

red light." Thereafter, plaintiffs elicited testimony from Pope

that this standard imposed upon the operators of such emergency

vehicles the duties of "bring[ing] the vehicle within control

before entering the intersection" and of maintaining a proper

lookout. Having created factual issues of the existence of these

duties, plaintiffs are not permitted to take the inconsistent

position that the same issues are matters of law, suitable for

jury instructions. See Leech v. Beasley, 203 Va. 955, 961-62,

128 S.E.2d 293, 297-98 (1962). Given these circumstances, we

find no error in refusing Instructions 24 and 25.

For the above reasons, (1) we reject the plaintiffs'

assignments of cross-error and (2) we will reverse the judgment

of the trial court enforcing the high-low agreement and enter

final judgment for Smith.
Reversed and final judgment.

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