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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