Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C05-00898
Kline, P.J.
Markel Insurance Company (Markel), the insurer of the defendant in a personal injury action, appeals from the dismissal of its suit for indemnity against Kaiser Permanente (Kaiser) following the trial court’s determination of a good faith settlement between Kaiser and personal injury plaintiff Rhonda Jones. Appellant contends the trial court erred in finding the settlement to be in good faith. We affirm.
STATEMENT OF THE CASE AND FACTS
According to the evidence presented in declarations and deposition testimony, on April 27, 2001, Rhonda Jones slipped and fell at Tony’s 76 Unocal gas station in Richmond, California, injuring her left knee. The physician on duty at Kaiser’s emergency room diagnosed a possible muscle tear and possible but doubtful deep vein thrombophlebitis. Jones was discharged with instructions to return the next morning. When she returned, she was diagnosed with a “compartment syndrome” and immediately transferred to the Kaiser Hospital in Oakland. There, Dr. James Shively performed a surgical release of the compartment syndrome and noted gross instability of Jones’s knee joint. It was determined that she had a completely occluded popliteal artery, which compromised the vascular integrity of her left lower leg. On April 29, Dr. Chris Ceraldi performed vascular surgery and successfully corrected the damage to the leg’s vascular system. Jones remained hospitalized for approximately two months, under Dr. Shively’s care.
Jones sued Tony Saeyang, Tony 76 Unocal, Phillips 66 Company, Phillips Petroleum Company, Clover Trust, Circle K Stores, Tosco Corporation and Doe defendants (collectively “the gas station”), alleging she slipped and fell at the gas station as a result of oil negligently left to form a hazard. Markel, Saeyang’s liability insurer under a policy providing $1,000,000 in coverage, defended the case. The matter went to mediation in early 2003; in her supplemental mediation brief, Jones listed special damages totaling $315,876.54 “and continuing” ($271,876.54 in medical care and $44,000 “and continuing” in wage loss). Markel and Jones settled the case for $1,000,000.
After settling the personal injury suit, Jones’s attorney offered to settle a pending arbitration against Kaiser in exchange for a full waiver of Kaiser’s lien for medical care. At that time, May 2003, the lien amount was believed to be $130,100.14. Jones’s attorney provided a report by thoracic and vascular surgeon Robert J. Stallone, who, after reviewing Jones’s medical records, deposition and answers to interrogatories, opined that Jones suffered a “very significant injury” when she fell, a posterior dislocation of the knee which caused a thrombosis of the popliteal artery. Stallone stated the care of the artery was delayed at least 12 hours because the problem was not found immediately. Emergency medicine physician Gary Towle, after review of the records, opined that Jones’s dislocated knee should have been suspected or diagnosed during her first visit to the emergency room and the “12-15 hour delay in diagnosis and transfer for definitive care undoubtedly compounded this patient’s already serious injury and directly resulted in increased morbidity, lengthy hospitalization, and ongoing disability.” Towle stated the emergency care rendered on Jones’s initial visit to Kaiser was below the standard of care, but her subsequent treatment met the standard of care.
On December 19, 2003, Jones dismissed with prejudice her medical malpractice claims against Kaiser in exchange for Kaiser’s waiver of its $130,100.14 lien in the personal injury action.
On May 4, 2005, Markel filed a complaint for indemnity against Kaiser, alleging that, as a proximate result of Kaiser’s negligent treatment of Jones, Markel was required to pay $800,000 more than the amount of damages due to its insured’s conduct in order to protect its insured. Specifically, Markel alleged that Jones incurred more than $200,000 in medical special damages as a result of Kaiser’s negligent treatment and Markel settled Jones’s case against Saeyang for “$800,000 in excess of the value of the . . . dislocation injury, which excess was due to the vascular compromise injury legally attributable to Tony Saeyang.”
On December 23, 2005, Kaiser filed a motion for determination of good faith of its settlement with Jones and request for dismissal of the action. In support of this motion, among other things, Kaiser filed the declaration of Jones’s vascular surgeon, Ceraldi, who stated his opinion that “it is uncertain whether and to what extent the alleged delay in treatment of Ms. Jones from the evening of April 27, 2001, to the morning of April 28, 2001, caused her residual injuries.” Ceraldi stated that Jones was a heavy woman and when she fell, “the force brought to bear on her knee, its ligaments, and the adjacent structures including nerves and arteries would have been extraordinary.” Ceraldi felt Jones’s injury—posterior dislocation of the knee with complete tears of at least three ligaments—“very likely had immediate neurological implications having nothing to do with her vascular problems or the alleged overnight delay in treatment.” Kaiser also submitted the declaration of Dr. Shively, in whose opinion Jones’s residual injuries resulted from “nerve damage which occurred when she fell and dislocated her knee, not by any alleged delay in treatment after she presented to the Emergency Room at Kaiser-Richmond.” Shively stated that it is “well documented that a dislocated knee can cause immediate and permanent neurologic loss,” that he had personal experience with similar cases and that Jones lacked certain symptoms consistent with extreme vascular compromise. A Consolidated Statement of Benefits showed medical services for Jones totaling $162,675.55 for service dates April 27 through December 13, 2002.
On February 16, 2006, the trial court filed its orders finding the settlement was made and entered in good faith and dismissing the action with prejudice.
Markel filed its notice of appeal on April 6, 2006.
DISCUSSION
A good faith settlement with the plaintiff relieves the settling defendant from liability for indemnity to joint tortfeasors and reduces the liability of the remaining defendants to the plaintiff by the greater of the amount stipulated in the settlement or the amount of consideration paid for the settlement. (Code Civ. Proc., §§ 877, 877.6, subd. (c) .) “The purpose of this legislation is to provide for equitable sharing of damages among the parties at fault and to encourage settlement.” (Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 613.) Any party to the action is entitled to a hearing on the good faith of a settlement entered into by the plaintiff and one or more alleged tortfeasors. (Code Civ. Proc., § 877.6, subd. (a).) “A cross-defendant who has not been named as a defendant in the main action may enter into a good faith settlement with the plaintiff in the main action and obtain a dismissal of the cross-complaint pursuant to Code of Civil Procedure section 877.6. (Mattco Forge, Inc. v. Arthur Young & Co. [(1995)] 38 Cal.App.4th [1337,] 1347-1348 [(Mattco Forge)].) However, such a settlement should be carefully scrutinized to ensure the settlement is reasonable, not collusive or fraudulent, and made in good faith. (Id. at p. 1354.)” (Great Western Bank v. Converse Consultants, Inc., at p. 613.)
Code of Civil Procedure section 877 provides:
Code of Civil Procedure section 877.6, subdivision (c), provides: “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.”
Code of Civil Procedure section 877.6 sets forth the procedures governing such a good faith determination. The statute provides that any party may give notice of a hearing on the good faith issue, or one of the settling parties may give notice of the settlement and apply for a determination of good faith settlement. (§ 877.6, subd. (a).) The court may determine the issue “on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.” (§ 877.6, subd. (b).) “The party asserting the lack of good faith shall have the burden of proof on that issue.” (§ 877.6, subd. (d).) Review of the determination may be sought by any aggrieved party by means of a petition for writ of mandate. (§ 877.6, subd. (e).)
In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500 (Tech-Bilt), our Supreme Court held that, in determining whether a settlement was made in good faith, “the intent and policies underlying [Code of Civil Procedure] section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (See In re MGM Grand Hotel Fire Litigation (D.Nev. 1983) 570 F.Supp. 913, 927.) Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. ‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ (Torres v. Union Pacific R.R. Co. (1984) 157 Cal.App.3d 499, 509.) The party asserting the lack of good faith, who has the burden of proof on that issue (Code Civ. Proc., § 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Tech-Bilt, at pp. 499-500, fn. omitted.)
“ ‘A determination as to the good faith of a settlement, within the meaning of section 877.6, necessarily requires the trial court to examine and weigh a number of relevant factors, one of the most important of which is the settling party’s proportionate liability.’ (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871, italics added, fn. omitted.) If ‘there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant’s liability, then a determination of good faith based upon such assumption is an abuse of discretion. (Ibid., italics added.)” (Mattco Forge, supra, 38 Cal.App.4th at p. 1350.)
But bad faith is not necessarily “ ‘established by a showing that a settling defendant paid less than his theoretical proportionate or fair share.’ (Cf. Dompeling [v. Superior Court (1981)] 117 Cal.App.3d [798,] 809.) Such a rule would unduly discourage settlements. ‘For the damages are often speculative, and the probability of legal liability therefor is often uncertain or remote. And even where the claimant’s damages are obviously great, and the liability therefor certain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.’ (Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231, 238.) Moreover, such a rule would tend to convert the pretrial settlement approval procedure into a full-scale minitrial (cf. Dompeling, supra, 117 Cal.App.3d at p. 810).” (Tech-Bilt, supra, 38 Cal.3d at p. 499.)
The determination whether a settlement is in good faith is left to the discretion of the trial court. (Tech-Bilt, supra, 38 Cal.3d at p. 502; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1027; Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 962.) “This court’s primary function in such an appeal is simply to assess whether the good faith determination is buttressed by any substantial evidence.” (Norco Delivery Service, Inc., at p. 962.)
Appellant contends the trial court erred in finding Kaiser’s settlement with Jones was in good faith because there was no consideration for the settlement. Markel urges that Jones’s possible malpractice claim against Kaiser was worth approximately $300,000, an amount considerably less than the $1,000,000 “credit” to which Kaiser was entitled as a nonsettling codefendant after the Markel/Jones settlement (§ 877, subd. (a)), so that Jones could not have recovered from Kaiser even if she prevailed in the arbitration. Kaiser, according to Markel, had nothing to gain from the arbitration because its lien against Jones’s third party settlement would be wiped out by its liability for malpractice. Thus, Markel argues, neither Kaiser nor Jones gave up anything of value in the settlement.
Markel’s assumptions about Jones’s and Kaiser’s motivation in settling the arbitration are not well founded. First, it is not as clear as Markel would have it that Jones would prevail on a malpractice claim against Kaiser. Towle, the emergency medicine physician who reviewed the case, opined that Jones’s initial treatment in the emergency room fell below the standard of care and exacerbated her injuries. Stallone, the vascular surgeon, stated that Jones’s treatment was delayed by the failure to discover the problem immediately, but did not state either that the failure reflected substandard care or that it contributed to the injuries. The two physicians who treated Jones after she was properly diagnosed both stated that her injuries likely resulted from the fall itself and not from the delay in treatment. Thus, there was conflicting evidence as to whether the initial emergency room treatment was below the standard of care and as to whether, or how much, the delay in treatment affected Jones’s ultimate injuries. In light of this conflict in the evidence, and the costs Jones would incur in arbitration with Kaiser, the trial court could reasonably have viewed her as having reason to settle the arbitration.
Additionally, the amount Jones could have expected to recover from a successful arbitration would have been relatively limited. Jones’s mediation brief listed medical and special damages totaling $315,877; the portion of this amount for which Kaiser could be held responsible would be reduced by the proportionate share of economic damages attributable to the gas station. If the arbitrator determined that Kaiser’s negligence contributed only slightly to Jones’s injuries, Jones could not expect to recover much in damages. Further, since Jones was a member of Kaiser’s health plan, the arbitrator would be able to take into account evidence that Kaiser paid or arranged for Jones’s medical care. (See Civ. Code, § 3333.1 ; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 506 [decision how evidence of collateral source benefits should affect assessment of damages left to trier of fact].) By settling, however, Jones realized a tangible gain from Kaiser’s waiver of its lien, as her overall recovery could otherwise have been reduced by at least $130,000.
Civil Code section 3333.1 provides: “(a) In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker’s compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence. [¶] (b) No source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”
Markel’s other main assumption is that Jones could not have recovered anything from Kaiser in arbitration because of the $1,000,000 credit Kaiser would have had by virtue of Markel’s settlement with Jones. Markel argues that this settlement encompassed Jones’s damages from the alleged medical malpractice as well as from the fall at the gas station.
Markel ignores the effect of Civil Code section 1431.2 (sometimes referred to as Proposition 51), which limits the liability of a defendant in a comparative fault case for noneconomic damages to that defendant’s percentage of fault. The credit to Kaiser arising from Markel’s settlement would apply only to Kaiser’s liability for economic damages. “Section 1431.2 provides that the responsibility for the noneconomic portion of the damages allocated to each defendant shall be several and not joint. Therefore, each defendant is solely responsible for his or her share of the noneconomic damages. Thus, that portion of the settlement attributable to noneconomic damages is not subject to setoff. To do otherwise would, in effect, cause money paid in settlement to be treated as if it was paid as a joint liability.” (Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 276-277.) “[C]omparative equitable indemnity is available only for that portion of a settlement attributable to economic damages, because that is the extent of the underlying joint obligation. A defendant has no right to settle the plaintiff’s claim against another party for noneconomic damages. Each defendant is entitled to severally negotiate or litigate its own several liability.” (Union Pacific Corp. v. Wengert (2000) 79 Cal.App.4th 1444, 1446.)
Civil Code section 1431.2 provides:
Thus, at a minimum, despite the Markel settlement, Kaiser potentially could have been liable for noneconomic damages up to the $250,000 maximum allowed under Civil Code section 3333.2. To determine the amount of Kaiser’s credit for economic damages, the Markel settlement would have had to be allocated between economic and noneconomic damages. Absent a showing by Markel supporting a different allocation, the portion of the settlement attributable to economic damages would be the same percentage of the total settlement as, after arbitration, the ultimate economic damage award is of the ultimate total award. (Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 1308, 1320.) For example, if the total value of Jones’s claim was determined by the arbitrator to be $1,000,000 (i.e., equal to the Markel settlement), using the $315,876.54 Jones claimed as economic damages in her mediation with Markel, the economic damages would be .316 of the total award ($315,876.54 of $1,000,000), making the credit to Kaiser $99,816.99 (.316 of $315,876.54). If the total award was higher, Kaiser’s credit would be even smaller: The $1,000,000 settlement was for the limits of the insurance policy and therefore does not necessarily reflect the total value of Jones’s damages. Of course, if Jones’s economic damages were greater by the time of the arbitration, Kaiser’s credit would also be greater. The bottom line, however, is that Kaiser distinctly had something to gain from settling the arbitration for $130,000.
Civil Code section 3333.2 provides in pertinent part:
Markel argues that the foregoing reasoning is faulty because the gas station was liable for all harm Jones suffered as a result of her accident, including medical malpractice. (Ash v. Mortensen (1944) 24 Cal.2d 654, 657.) Markel likens the positions of its insured and Kaiser in this case with those of a retailer and manufacturer in a strict products liability case, where the retailer is strictly liable for the fault of the manufacturer.
Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 (Wimberly), upon which Markel relies, held that Civil Code section 1431.2 does not apply in strict product liability cases, where “the only ‘fault’ required to find a defendant liable for injuries caused by a defective product is its participation in the chain of distribution.” (Id. at p. 626.) This conclusion followed from other courts’ determinations that the comparative fault principle of section 1431.2 does not apply where the defendant’s liability is vicarious. Wimberly discussed several cases holding section 1431.2 inapplicable in situations where the defendant’s liability was based not on its own fault, but on some legal relationship with the party factually responsible for the injury. (Miller v. Stouffer (1992) 9 Cal.App.4th 70 [employer liable for negligence of employee under doctrine of respondeat superior]; Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847 (Rashtian) [defendant statutorily responsible for negligence of a permissive user]; Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721 [defendant’s liability based on nondelegable duty].) These cases analyzed the policies behind the various doctrines imposing liability without fault and found them incompatible with the comparative fault analysis required by section 1431.2. With respect to strict liability, Wimberly concluded that “the retention of ‘joint and several liability’ of parties in a defective product’s chain of distribution for the plaintiff’s full damages without a showing of negligence is essential to the theory of strict product liability. Nothing in Proposition 51 compels dilution of the strict liability doctrine. To the contrary, the measure disapproves of joint and several liability for plaintiff’s noneconomic damages only where there are ‘independently acting tortfeasors who have some fault to compare.’ (Rashtian, supra, 9 Cal.App.4th at p. 1851.)” (Wimberly, at p. 633.)
Marina Emergency Medical Group v. Superior Court (2000)84 Cal.App.4th 435, 440-441, considered the relationship between two doctors both allegedly responsible for malpractice in treating the plaintiff, the emergency room physician who initially treated her (Westerband) and her personal physician (Solomon), whom she consulted later. When the case went to trial against Westerband, Solomon having been voluntarily dismissed, the plaintiff sought to exclude all evidence of Solomon’s negligence on the theory that because Westerband’s negligence caused the original injury, Westerband was liable for any aggravation caused by Solomon’s subsequent treatment. (Id. at p. 438.) The court rejected this theory. “In cases where a person’s liability is derivative (such as the respondeat superior liability of an employer for an employee’s acts) or based solely on statute (such as an automobile owner’s liability for the driver’s negligence), Proposition 51 does not apply (other than as it might require an allocation of liability between the employee and third persons or the driver and third persons). (Miller v. Stouffer[, supra,] 9 Cal.App.4th [at pp.] 81-85]; Rashtian[, supra,] 9 Cal.App.4th [at p.] 1851]; see also Srithong v. Total Investment Co.[, supra,] 23 Cal.App.4th [at p. ] 727 [Proposition 51 does not apply when a defendant’s liability is not based on any wrongdoing].)
“But Dr. Westerband’s liability for Dr. Solomon’s subsequent negligence is not derivative. It is not a creature of statute. It is based on Dr. Westerband’s own negligence, and it exists because ‘the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds [the original tortfeasor] liable therefor.’ (Ash v. Mortensen, supra, 24 Cal.2d at p. 657.) The rationale for the rule is that the subsequent medical treatment ‘is closely and reasonably associated with the immediate consequences of the [original tortfeasor’s] act and forms a normal part of its aftermath.’ (Munoz v. Davis (1983) 141 Cal.App.3d 420, 427; see also Blecker v. Wolbart [(1985)] 167 Cal.App.3d 1195, 1201.) Indeed, even where public policy precludes an indemnity claim against a subsequent tortfeasor—for example, a lawyer sued for malpractice by a former client may not cross-complain for indemnity against a successor lawyer hired to extricate the client from the condition created by the predecessor lawyer—the original tortfeasor may, by affirmative defense in the plaintiff’s case, reduce his liability for noneconomic damages to the extent of the subsequent tortfeasor’s fault. (Shaffery v. Wilson, Elser, Moskowitz, Edelman & Dicker (2000) 82 Cal.App.4th 768, 773.) It follows that Dr. Westerband is entitled to have [plaintiff’s] damages apportioned among the universe of tortfeasors, ‘including nonjoined defendants.’ (Roslan v. Permea, Inc. (1993) 17 Cal.App.4th 110, 113.)” (Marina Emergency Medical Group v. Superior Court, supra, 84 Cal.App.4th at pp. 440-441.)
Here, as in Westerband, Markel’s insured was potentially liable to Jones’s for the damages resulting from Kaiser’s malpractice, if any, as well as from the original accident. As in Westerband, this liability was the result of the gas station’s own conduct, not derivitive or vicarious. To the extent either was found negligent, the gas station and Kaiser were “ ‘independently acting tortfeasors who have some fault to compare.’ (Rashtian, supra, 9 Cal.App.4th at p. 1851.)” (Wimberly, supra, 56 Cal.App.4th at p. 633.) Markel’s analogy to the strict products liability situation fails.
Markel also argues that because Jones settled with Kaiser after she settled with Markel, the court was required to scrutinize the settlement more closely than if it had been entered early in the litigation. Appellant relies upon two cases in making this point. The first, Great Western Bank v. Converse Consultants, Inc., supra, 58 Cal.App.4th 609, held that a cross-defendant who entered a good faith settlement with the plaintiffs and obtained a dismissal of the cross-complaint for indemnity was the prevailing party entitled to collect costs from the defendant. Although it recited the rule that a settlement by a cross-defendant who settles with the plaintiff and obtains dismissal of the cross-complaint should be “carefully scrutinized to ensure the settlement is reasonable, not collusive or fraudulent, and made in good faith” (id. at p. 613), the issue before the court was determining the prevailing party for purposes of awarding costs and the opinion did not discuss any of the principles involved in determining whether a settlement was in good faith.
The second case upon which appellant relies, Mattco Forge, supra, 38 Cal.App.4th 1337, held a settlement between the plaintiff and a cross-defendant was not in good faith. A federal court case in which Mattco had sued General Electric had been resolved with mutual releases after the court sanctioned Mattco for falsifying documents relating to damages. Mattco then sued the accountants who had been hired to help establish damages in the federal action and the accountants cross-complained against Mattco’s attorneys. The accountants obtained summary judgment against Mattco, Mattco successfully appealed, and the case was remanded. At this point, Mattco settled with the attorneys for a guarantee with a present value of $250,000, although Mattco had not sued the attorneys and any claim it might have had against them was time barred. The trial court determined the settlement was in good faith. Mattco Forge reversed, finding, among other things, that the settlement was worth less than one percent of the amount the attorneys estimated as Mattco’s damages and the attorneys admitted entering the settlement in order to cut off the accountants’ cross-complaint for indemnity. (Id. at pp. 1350, 1353.) “If a cross-defendant without legal liability to the plaintiff settles with the plaintiff in an amount within the reasonable range of what the cross-defendant’s liability would be, the interests of the nonsettling cross-complainant are protected, and both the policies of encouraging settlements and equitable financial sharing are served. However, when such a cross-defendant enters into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-complaint, the inference that the settlement was not made in good faith is difficult to avoid.” (Mattco Forge, supra, at p. 1354.)
Here, by contrast with the situation in Mattco Forge, Jones did have a viable claim against Kaiser. With Kaiser’s potential liability in the range of $566,000 (Jones’s claimed economic damages of $315,877, plus the maximum $250,000 in noneconomic damages), the $130,000 settlement was approximately 23 percent of the maximum damages Jones could hope to recover from Kaiser. Given the uncertainties as to whether Kaiser would be found negligent at all and, if it was, the amount of its fault relative to the gas station’s, the trial court did not abuse its discretion in finding Markel failed to demonstrate the settlement was not in good faith.
The judgment is affirmed. Costs to Kaiser.
We concur: Haerle, J, Lambden, J.
“Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect:
“(a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater.
“(b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties.
“(c) This section shall not apply to co-obligors who have expressly agreed in writing to an apportionment of liability for losses or claims among themselves.
“(d) This section shall not apply to a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment given to a co-obligor on an alleged contract debt where the contract was made prior to January 1, 1988.”
“(a) In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.
“(b)(1) For purposes of this section, the term ‘economic damages’ means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.
“(2) For the purposes of this section, the term ‘non-economic damages’ means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.”
“(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. “(b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”