Scott S. Markus, Esq.

markus@agreement.com

SCOTT SLATER MARKUS IS WIDELY KNOWN AS THE LAST PERSON TO GIVE UP ON A SETTLEMENT.

HE MEDIATES SERIOUS PERSONAL INJURY, EMPLOYMENT, PROFESSIONAL LIABILITY, REAL PROPERTY AND CONSTRUCTION MATTERS.

Court Issues Interpretative Opinion
The Practitioner, May 30, 1996
by Scott S. Markus

After I submitted my article ("Oral Surgery," The Practitioner, May 8) for publication, the Court of Appeal issued an opinion interpreting the C.C.P. Section 664.6 requirement that a writing be signed by the parties in order to be enforceable.

In Robertson v. Chen, 96 Daily Journal D.A.R. 4856 (April 26, 1996), the appellate court observed, in dicta: "When a defense is being provided without reservation by an insurance carrier, a settlement by the carrier within policy limits does not prejudice the 'substantial rights' of the insured. ... '[W]here the insured is fully covered by primary insurance, the primary insurer is entitled to take control of the settlement negotiations and the insured is precluded from interfering therewith.' ... Not only are the insured's 'substantial rights not prejudiced ... but the consent of the insured is usually superfluous."

The Court of Appeal distinguished Levy v. Superior Court, 10 Cal.4th 578 (1995), which did not involve an insurance-funded settlement: "It seems unlikely that the Levy court would find a party-signature requirement intended by the Legislature when the presence of such a signature could not create a settlement and the absence of such a signature could not prevent a settlement."

Scott S. Markus
San Diego

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