Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 25570
THE COURT:The opinion of this court filed September 29, 2008, in the above entitled case is modified as follows:
On page 33, at the end of the first full paragraph, which ends with the word “awarded,” add a new footnote 10, as follows:
We do not address whether or to what extent Nichols may be entitled to a credit against the $200,000 in damages the jury awarded for amounts Millville received in settlement from other defendants before trial. Those questions are for the trial court to resolve in the first instance on remand.
Renumber the current footnote 10 on page 33 as footnote 11.
On page 38, at the end of part IIC of the Discussion, following the word “awarded” and before the period, insert the following:
(subject to any credits to which the trial court determines Nichols is entitled)
On pages 38 and 39, delete the entire paragraph in part III of the Discussion and insert in its place the following:
Because we are reversing the judgment as between Millville and its insurers and Nichols, the postjudgment costs order from which Millville and its insurers separately appealed must be reversed in part as well. To the extent that order directed Millville and its insurers to pay costs of $48,979.60 to Hallman, that portion of the order need not be disturbed because we are affirming the judgment in favor of Hallman. However, the order also ordered Millville and its insurers and West to pay costs of $27,577.39 to Nichols, Rosetto, and Tedder, with Millville and its insurers jointly and severally liable for $23,509.88, and Millville and its insurers and West jointly and severally liable for the remaining $4,067.51. To the extent the costs order makes Millville and its insurers liable for $27,577.39 in costs to Nichols, Rosetto, and Tedder, the order must be reversed based on our reversal of the judgment as between Millville and its insurers and Nichols. Although that portion of the judgment that is in favor of Rosetto and Tedder, based on their pretrial dismissal, is unaffected by our decision reversing the judgment as to Nichols, we cannot affirm the costs order as to them because they filed a single memorandum of costs along with Nichols, and we have no basis for distinguishing between costs they may have paid (which they would be entitled to recover) and costs that Nichols paid (which Nichols is not entitled to recover). The reversal of the costs memorandum as to Rosetto and Tedder is without prejudice to them establishing on remand their right to costs independent of Nichols.
The portion of the order making West liable for the $4,067.51 in costs to Nichols, Rosetto, and Tedder is not affected.
On page 39, delete the first paragraph under the heading “DISPOSITION” and insert in its place the following:
The judgment is reversed to the extent it determined that Millville and its insurers should take nothing from Nichols; in all other respects, the judgment is affirmed. The postjudgment costs order is reversed to the extent it ordered Millville and its insurers to pay costs to Nichols, Rosetto, and Tedder; in all other respects, the order is affirmed. The case is remanded to the trial court to determine who (among Millville and its insurers) is entitled to the $200,000 in damages the jury awarded on Millville’s cause of action for breach of contract against Nichols (subject to any credits to which Nichols may be entitled).
With these modifications, the petition for rehearing filed by Nichols, Melburg & Rosetto, Dan Rosetto, and Kevin Tedder is denied. This modification affects the judgment.
RAYE, Acting P. J., ROBIE, J., CANTIL-SAKAUYE, J.