(dissenting).
I dissent. It is utterly incomprehensible to me that this court could issue the majority opinion in this case, an opinion in which the court finds as a matter of law a fact diametrically opposed to the fact found by the trial court and goes on to totally ignore the law of the case established in Buysse v. Baumann-Furrie & Co., 448 N.W.2d 865 (Minn.1989), with the result that the court has violated its own ruling.
On September 22, 1989 this court issued a unanimous opinion in which it distinguished the settlement between these parties from the kind of settlement which the court held enforceable in Miller v. Shugart, 316 N.W.2d 729 (Minn.1982), and held that the settlement agreement was material and, with respect to the disputed portion of the policy limits, prejudicial so that policy coverage in excess of $500,000 was clearly void. Because we could not determine on the record before us whether there was some understanding that the attempt to settle the matter by a Miller-Skugart type of agreement would not jeopardize the insurance coverage of $500,000 payable for all claims resulting from a single error or series of related errors, we remanded to the trial court for determination of that single fact issue. That single fact was “whether the insurer joined in an agreement to recognize the continued vitality of the insurance coverage to the $500,000 limit.” Buysse I, 448 N.W.2d at 875. If there was no agreement to continue that amount of coverage in force despite the attempted Miller-Shugart settlement, the policy was void and the insurer/garnishee was entitled to be discharged. If the court found that there was such an agreement, then the policy remained in force to the limit of $500,000. The consequence of a finding that coverage exists does not, however, automatically mean the insurer is liable; it simply means that the claimant is to be afforded the opportunity to prove liability to the limit of $500,000.
On remand, the trial judge, who had presided over four weeks of trial prior to the stipulation for settlement and who certainly had an opportunity to observe the interaction among the several lawyers engaged in the matter, granted the insurer’s motion for summary judgment, saying that he “reluctantly” found no such agreement; and, therefore, he directed entry of judgment in favor of the insurer/garnishee, St. Paul Fire & Marine Insurance Company. I have *31reviewed the affidavits interposed in connection with the motion, and in my view the affidavits and the inferences reasonably to be drawn from them amply support the trial court’s determination.
Nevertheless, this court now usurps the trial court’s role as finder of fact. Declaring that “by having his co-counsel sign the stipulation, Mr. May was confirming at least this commitment [referring, apparently, to authority to settle for up to $500,000] which was not inconsistent with his actual authority,” the majority finds, as a matter of law, not only that the $500,000 “each error” coverage is in force, but also that the stipulated settlement remains binding on the parties, that the stipulated damages are reasonable, and that the insurer is liable to the plaintiffs in the amount of $500,-000!
Of course, that set of findings far exceeds the scope of the inquiry on remand. It also directly contravenes the law of the case. In Buysse I we stated that if it should be determined that the $500,000 limit should remain in force despite the stipulation of settlement, then the only remedy would be to set aside the stipulated judgment on such terms with respect to costs, fees and disbursements as may be appropriate and reopen the main action for trial on all issues. It is apparent that the parties understood our earlier decision, for the only request of the plaintiffs in the underlying action — the judgment creditors in this garnishment proceeding — is that prescribed by the earlier decision: a vacation of the judgment in favor of the plaintiffs and reopening the main action for trial of liability and damages to the extent of the available coverage of $500,000. Id. at 875.
There has never been any determination with respect to liability or damages, and this court is hardly qualified to take on that task in the context of this garnishment proceeding. Particularly is this so in light of our comment in Buysse I that plaintiffs’ claim depended on an extension of existing law. Id. at 874.
Finally, to treat the settlement as if it survives our earlier decision is to do exactly what we said an insured could not do— that is, to “wrest[] control of the lawsuit from the insurer, stripping it of its contractual right to defend and settle the action, and thus violating the insured’s covenants.” Id. at 873. It is one thing to relieve the insured of the consequences of a breach of contract by setting aside the settlement. It is quite something else to reward the insured for breaching the contract by declaring that by agreement entered into over the insurer’s protest and without any need for proof of either the insured’s liability or the claimants’ damages, the insurer is liable to the claimants to the full extent of its policy limits. Thus, in a single stroke, has the court discarded the fundamental and time-honored principle of law of the case and sanctioned the destruction of the insurer’s right to defend the insured.
For the foregoing reasons I would affirm the trial court.