                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                    No. 97-2130
                                   _____________

The Toro Company; Lawn-Boy, Inc.,      *
                                       *
           Plaintiffs - Appellants,    *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of Minnesota.
Columbia Casualty Company,             *
                                       *
           Defendant - Appellee.       *
                                 _____________

                           Submitted: December 10, 1997
                               Filed: March 6, 1998
                                  _____________

Before McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                           _____________

JOHN R. GIBSON, Circuit Judge.

      The Toro Company appeals from the district court's1 entry of summary judgment
against it on its breach of contract claim against its insurer, Columbia Casualty
Company, for settling a claim against Toro without Toro's permission. The district
court held that the insurance policy specifically authorized Columbia to settle the claim
and that there was no evidence that the parties had orally agreed to modify the




      1
      The Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota.
insurance policy to eliminate that authorization. We affirm the judgment of the district
court.

       Toro, a lawn mower manufacturer, had a $5 million liability policy with
Columbia. Toro was sued when one of its lawnmowers ran over a baby, Brittany
Ritzler. The case was tried before a California Superior Court Judge who issued a
"tentative decision" finding Toro seventy-five percent at fault for the accident and
setting damages at $7.8 million. Under California law, Toro was responsible for
$6,065,000. Toro determined that it would appeal the judge's decision. However, the
plaintiff's attorney delivered a "drop dead" settlement proposal, offering to settle the
case for $5 million by noon the next day and giving his word that if Toro did not settle
in accord with the offer "there will be no further communications regarding settlement.
Ever." Toro forwarded the letter to Columbia, but Columbia's claim representative
was not able to contact Toro's counsel, who was on vacation. The claim representative
told the Toro director of risk management that he was going to accept the offer if he
could not get an extension; he could not contact the Ritzlers' attorney by telephone, and
so he faxed acceptance of the offer, minutes before it expired.

       Toro brought this suit alleging breach of the insurance policy contract and breach
of an oral contract not to settle the case without Toro's consent. Toro alleges that it will
be damaged by Columbia's settlement of the suit because Toro will have to pay higher
insurance premiums and will be more likely to have other products liability claims filed
against it in the future. The district court held that Columbia's actions did not breach
the terms of the policy and that there was no evidence of an oral agreement not to settle
the Ritzler case. The court held that an oral agreement not to settle any case under a
three-year policy without Toro's consent would fall within the Statute of Frauds as
impossible to perform within a year.

    We review the district court's entry of summary judgment de novo. Donaho v.
FMC Corp., 74 F.3d 894, 897 (8th Cir. 1998).

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       The policy in question provided: "[Columbia], at its sole option and without
consent of the insured, may settle any claim or suit involving the limits of liability of
this policy or likely to involve its limits." Toro contends that this language conflicts
with language in an endorsement entitled "Defense Coverage Exclusion Endorsement."
We have reviewed the policy and conclude that none of the language to which Toro
points conflicts with or supersedes the express provision in the policy allowing
Columbia to settle claims.

      Toro also contends that it entered oral agreements with Columbia that Columbia
would never settle a claim against Toro without Toro's permission and that Columbia
would not settle the Ritzler case without Toro's permission. The testimony with which
Toro supports its claim of oral contracts falls short of establishing such contracts or an
estoppel. Nor is there any evidence that Columbia waived its right to settle the Ritzler
case.

      We affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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