                                                                                 -,L.j

                                                                    I i\ i


                                                                  20mOCT -6 fri 10:06
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JON KOMINE and ALICYN KOMINE,
husband and wife,                                        No. 70707-8-


                      Respondents,                       DIVISION ONE


              v.                                         UNPUBLISHED OPINION


HUMBERT ANGUIANO and "JANE DOE"
ANGUIANO, husband and wife, and the
marital community composed thereof,

                      Defendants,

METROPOLITAN PROPERTY AND
CASUALTY CO.,

                      Appellant.                         FILED: October 6, 2014


      Appelwick, J. — MetLife, Komine's underinsured motorist insurer, intervened in

her negligent driving suit against Anguiano. Komine settled and stipulated to dismissal
of her claims against Anguiano. The case was dismissed. Though Komine and MetLife

pleaded no claims against each other, Komine obtained an order vacating the dismissal
as to MetLife. MetLife appeals that vacation and argues that it is entitled to dismissal.

The parties to the stipulation did not intend to and the stipulation did notdismiss anything

other than the defendant and the claims against the defendant. We affirm.

                                          FACTS


       Metropolitan Property and Casualty Insurance Company (MetLife) provides
underinsured motorist (UIM) coverage to Alicyn and Jon Komine. On December 20,
2009, Humberto Anguiano rear-ended the Komines when they were stopped at a red
No. 70707-8-1/2




light. The Komines both suffered injuries. They sued Anguiano for negligent driving on

October 31, 2011.

      Anguiano had liability insurance through Farmers Insurance Company. However,

the Komines claimed damages that exceeded the amount available under Aguiano's

policy. The parties stipulated to MetLife's intervention.

       In May 2012, Farmers agreed to payAlicyn $30,000, the limit of Anguiano's policy.

MetLife waived its subrogation rights to Alicyn's tort claim. In August, Jon settled with

Farmers within policy limits.1

       After Jon's claims were settled, Farmers' attorney sent a stipulation and order of

dismissal to the Komines' attorney, Corrie Yackulic. The stipulation said, "It is hereby

stipulated by and between the parties hereto that the above-entitled matter has been fully

settled and compromised and may be dismissed with prejudice and without costs." The

order of dismissal stated that, "IT IS ORDERED that the above-entitled matter be, and

the same is hereby dismissed with prejudice and without costs."

       Both Yackulic and defense counsel signed the stipulation and order. MetLife's

counsel did not. MetLife was not notified or served a copy of the order. The court signed

and entered the stipulation and order on August 27, 2012.

       Komine sent MetLife a settlement demand on August 9, 2012. On August 14, the

parties agreed that Komine would authorize release of her medical records to MetLife.

They also agreed that MetLife would take Komine's deposition by mid- to late-October

and that Komine would extend MetLife's response deadline to early November.

       1Alicyn Komine's UIM claim against MetLife is the subject of this appeal. Going
forward, we refer to Alicyn as "Komine" and Jon as "Jon" or "Jon Komine." We intend no
disrespect by our use of first names.
No. 70707-8-1/3




      On October 8, 2012, MetLife's attorney, Eric Newman, filed a notice of

unavailability in the action. The court clerk then contacted Newman and told him that all

claims in the case were dismissed, including those against MetLife.

      On November 13, 2012, Newman wrote to Yackulic telling her what the clerk said.

He asked, "Should Itake that to mean that your client is no longer seeking to recover UIM

benefits from MetLife for the subject accident?" He closed the letter, "Please let me

know." Yackulic called Newman upon receipt of the letter. She assured him that Komine

still intended to pursue her UIM claim.

       The next day, Yackulic wrote to Newman asserting that the stipulation and order

did not dismiss Komine's UIM claim. Yackulic included a proposed stipulated motion to

vacate or amend the order of dismissal. She indicated that, if the parties could not reach

a settlement, Komine would move to vacate the order.

       In December 2012, Newman told Yackulic that MetLife would not sign the

stipulated motion. However, MetLife still wished to settle Komine's UIM claim. Komine

sent MetLife a new settlement demand in early 2013. MetLife sent a counteroffer on

February 25, leaving it open until March 13. Komine apparently did not accept. She
reached out to MetLife again on May 24. The parties were ultimately unsuccessful in

reaching a settlement.

       On June 20, 2013, Komine moved to vacate the order of dismissal. The court

granted her motion as to the UIM claim against MetLife. MetLife appeals.
No. 70707-8-1/4




                                 STANDARD OF REVIEW


       We review a trial court's order vacating a judgment for abuse of discretion. Jones

v. City of Seattle. 179 Wn.2d 322, 360, 314 P.3d 380 (2013). We will reverse its decision

only when no reasonable person would take the position adopted by the trial court.

Morgan v. Burks, 17 Wn. App. 193, 198, 563 P.2d 1260 (1977). We may affirm the trial

court on any basis supported by the record. Amy v. Kmart of Wash., LLC, 153 Wn. App.

846, 868, 223 P.3d 1247 (2009). Our primary concern is that the trial court's decision is

just and equitable. TMT Bear Creek Shopping Center, Inc. v. Petco Animal Supplies,

Inc., 140 Wn. App. 191,200, 165 P.3d 1271 (2007).

                                         ANALYSIS


       We begin by noting the awkward posture of this case. The parties ask us to

consider whether the trial court erred in reinstating Komine's UIM claim against MetLife.

But, Komine's complaint alleged no claims against MetLife.               MetLife alleged no

counterclaims against Komine. Komine has not amended her complaint. Nor has she

asserted that MetLife denied her UIM claim. Consequently, we fail to see a claim left to

reinstate.


       MetLife urges that it is entitled to dismissal by virtue of its status as an intervenor.

We do not dispute that an intervenor becomes a full party to an action. Fairfield v. Binnian,

13 Wash. 1, 4, 42 P. 632 (1895). We also acknowledge that MetLife, as an insurer with

notice and the opportunity to intervene, is bound by judgment entered in this action. See

Fisher v. Allstate Ins. Co., 136 Wn.2d 240, 246, 961 P.2d 350 (1998).              But, these

principles are not determinative here. A breach of contract claim for UIM coverage was

not pleaded. Nor could it have been at that time. Thus, there was no determination of
No. 70707-8-1/5




liability, calculation of damages, or judgment as to the UIM claim. Instead, there was a

resolution and dismissal of the claims against only Anguiano. MetLife wants to step into

his shoes, but there are none left to fill.   Komine succeeded in reinstating the cause

number with the intervenor as the lone defending party, but with no claims pending. It

was not necessary to revive a UIM claim that had not been pleaded, let alone

extinguished. Nonetheless, MetLife asserts that the trial court erred in vacating the order,

and so we now consider the propriety of that decision.

       Komine moved to vacate for mistake under CR 60(a) and CR 60(b). To determine

whether a mistake occurred, we must first ask whether, as a matter of law, the order of

dismissal applied to Komine's UIM claim against MetLife. This question was not briefed

on appeal or below.

       Final judgments entered by stipulation or consent are contractual by nature.

Martinez v. Kitsap Pub. Servs., Inc., 94 Wn. App. 935, 942, 974 P.2d 1261 (1999). "The

touchstone of contract interpretation is the parties' intent." Tanner Elec. Coop, v. Puqet

Sound Power & Light, 128 Wn.2d 656, 674, 911 P.2d 1301 (1996).              The court may

determine the parties' intent from the actual language of the agreement, as well as from

"'the contract as a whole, the subject matter and objective of the contract, all the

circumstances surrounding the making of the contract, the subsequent acts and conduct

of the parties to the contract, and the reasonableness of respective interpretations

advocated by the parties.'"      id. (internal quotation marks omitted) (quoting Scott

Galvanizing, Inc. v. Nw. Enviroservices, Inc., 120 Wn.2d 573, 580-81, 844 P.2d 428

(1993))
No. 70707-8-1/6




       In Martinez, codefendants Chico and Miller settled with the plaintiffs before trial.

94 Wn. App. at 939. The parties agreed to dismiss with prejudice "all claims which now

exist or which may exist in the future among and between the plaintiffs and defendants

arising out of the incident." jd, at 939-40 (emphasis omitted).       The defendants then

disputed whether this effectively dismissed Chico's cross claim against Miller. jd, at 940-

41. The trial court ruled that it did. Id. The Court of Appeals reversed, finding that the

parties did not intend to dismiss the cross claim. Id, at 948-49. Importantly, the order

dismissed all claims "between the plaintiffs and defendants"—not between the

defendants.   Id. at 945.   And, Chico's conduct demonstrated that it did not intend to

dismiss its cross claim,    jd. at 946.   Chico consistently indicated to Miller and to the

plaintiffs that it would pursue its cross claim, and Chico did so after entry of the order of

dismissal, jd. at 946.

       Conversely, in Mutual of Enumclaw Insurance Co. v. State Farm Mutual Insurance

Co.. 37 Wn. App. 690, 694, 682 P.2d 317 (1984), the court found that the parties' general

settlement agreement dismissed Mutual's cross claim against codefendant State Farm.

Mutual indicated on October 19, 1977 that it intended to seek indemnification from State

Farm. Id, at 692. On October 24, the parties reached a settlement and entered an order

of dismissal stating, "'[A]ll claims in this action shall be dismissed with prejudice and

without costs.'" Id, (alteration in original). Mutual did not raise the indemnification issue

again until August 26, 1980, almost three years later, jd. The court found that Mutual

waived its claim. Id at 694.

       Here, as in Martinez, the stipulation used limiting language: "IT IS HEREBY

STIPULATED bv and between the parties hereto." (Emphasis added.) The "parties
No. 70707-8-1/7




hereto" are the parties to the stipulation—the Komines and Anguiano, not MetLife.

MetLife was not even served a copy of the order. This is distinct from Mutual, where all

relevant parties agreed to the settlement that dismissed all claims in the action. See 37

Wn. App. at 692.

      Komine's postjudgment behavior was analogous to Martinez as well. At all times,

she acted consistent with her understanding that the stipulation and dismissal applied

only to the defendant and not to MetLife. Throughout August 2012, Komine and MetLife

engaged in settlement negotiations. These negotiations were contemporaneous with the

settlement of Jon Komine's claims.

      The defendant's behavior also demonstrates a lack of intent to dismiss claims

against MetLife. When Jon's claims were settled, Farmers' counsel drafted the stipulation

and order without including or notifying MetLife.

       Komine's postdismissal behavior further demonstrates that she did not intend to

release her UIM claim. When MetLife asked about the scope of the dismissal, Komine

responded that it did not include MetLife and that she intended to pursue her UIM claim.

Komine maintained that position at all times. The parties continued to talk settlement for

roughly six months. When they were ultimately unsuccessful, Komine filed her motion to

vacate.


       Based on the terms Farmers drafted and its presentation of the order, it is apparent

that it did not intend to dismiss MetLife. Likewise, Komine consistently demonstrated her

intent to continue pursuing her claim. The record shows that the parties to the stipulation

did not intend to dismiss Komine's UIM claim against MetLife.
No. 70707-8-1/8




       The order of dismissal lacks the stipulation's limiting language. MetLife argues

that Yackulic was negligent in signing the order and that attorney negligence cannot be

the basis to vacate the order under CR 60(b). While the order could have been drafted

more artfully, Yackulic was not negligent in signing it. When a court order incorporates a

stipulation between parties, the meaning of the order is the same as the meaning

objectively manifested by the parties at the time they formed the agreement. Martinez,

94 Wn. App. at 942. This is because the parties' intent will be the court's intent. In re

Marriage of Boisen. 87 Wn. App. 912, 920, 943 P.2d 682 (1997). Thus, the court's order

bears the meaning of the parties' stipulation limiting the dismissal to the claims between

Komine and Anguiano. As a matter of law, the order of dismissal did not apply to MetLife

or to an unpleaded potential UIM claim against it.

       CR 60(a) provides for vacation of judgment due to clerical errors and errors arising

from oversight or omission. Here, the court clerk overlooked the stipulation's language

limiting the dismissal to claims between Komine and Anguiano.2 This was a valid basis

to vacate the order under CR 60(a).3 See, e.g., Shaw v. City of Pes Moines, 109 Wn.

App. 896, 901, 903, 37 P.3d 1255 (2002) (vacating order of dismissal entered due to court

clerk oversight).

       The dismissal did not relieve MetLife of its obligations under its contract with

Komine. Komine sought to protect her interests against MetLife's allegations otherwise.


        2We note that the clerk's oversight was understandable. Farmers drafted the order
inartfully, not mirroring the language of the stipulation. And, both Yackulic and the court
overlooked the difference between the two.
       3 The trial court did not state its basis for vacating the order. It made findings that
suggest it may have relied on CR 60(b). While we also find no error in vacating the order
under CR 60(b), we need not analyze that guestion here.


                                                 8
No. 70707-8-1/9




Against this background, the trial court did what was equitable and vacated the order of

dismissal as it pertained to MetLife. Though we perceive no point in reinstating a claim

that was never alleged, we find that the trial court did not abuse its discretion.

       We affirm.




WE CONCUR:




                                         ^^f,CVr
