Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 453038
Siggins, J.
This appeal concerns the ability of an employer to recoup workers’ compensation benefits paid or to be paid to an employee injured by a third party. The Labor Code provides that the employer can seek reimbursement of benefits by either filing a direct action against the third party, joining or intervening in the employee’s lawsuit against the third party, or enforcing a first lien against any judgment or settlement recovered by the employee in a lawsuit. (§§ 3852, 3853, 3856, subd. (b).)
Unless otherwise indicated, all further statutory references are to the Labor Code.
Plaintiff Hartford Accident & Indemnity Company (Hartford), an insurer of workers’ compensation benefits, chose to commence a direct action against Pacific Gas & Electric Company (PG&E), to recover workers’ compensation benefits paid or to be paid by Hartford’s insured to its employee, Lisa Nash, who was injured in an explosion allegedly caused by PG&E. The trial court dismissed Hartford’s action on the ground that Nash’s settlement and dismissal of her lawsuit against PG&E barred Hartford’s direct suit. We agree with Hartford that its right to pursue a direct action against PG&E was not precluded by the settlement and dismissal of Nash’s lawsuit against PG&E. Accordingly, we reverse the judgment in favor of PG&E and remand for further proceedings.
“[T]he term ‘employer’ includes an employer’s [workers’] compensation insurance carrier.” (Van Nuis v. Los Angeles Soap Co. (1973) 36 Cal.App.3d 222, 228, fn. 3 (Van Nuis); see §§ 3211, 3850, subd. (b).) As appropriate, we refer to Hartford as the insurer and employer interchangeably in this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2005, Nash was injured in a gas explosion in San Francisco. Her employer provided her with workers’ compensation benefits paid by its insurer Hartford.
Within a month of the explosion, Nash and her husband filed a lawsuit against PG&E for damages to recover for her injuries and loss of consortium. On December 12, 2005, Hartford sent PG&E a notice of claim for reimbursement of workers’ compensation benefits.
On January 12, 2006, Nash gave notice of her lawsuit to her employer and Hartford. Hartford neither sought to join or intervene in Nash’s suit, nor did it serve and file a notice of a first lien against any judgment or settlement that might be recovered by Nash.
By a letter to Hartford dated January 20, 2006, PG&E acknowledged receipt of Hartford’s claim and informed Hartford that Nash had settled her lawsuit with PG&E. In a letter dated February 6, 2006, PG&E confirmed that its settlement with Nash did not settle Hartford’s claim or lien for workers’ compensation benefits. Instead, Nash agreed in the settlement agreement to defend any lawsuit brought by Hartford to recoup such benefits and to pay any benefits from the settlement proceeds paid to her by PG&E. PG&E referred Hartford to Nash.
The settlement agreement and release provided, in relevant part, that in exchange for PG&E’s payment to Nash, Nash would release PG&E from all claims, including workers’ compensation liens that related to the incident. Nash also agreed that her counsel would keep in trust the full amount necessary to satisfy any workers’ compensation liens or benefits paid to her as a result of the accident; and that she would defend any complaint brought to recover such liens or benefits, and pay such liens or benefits from the settlement proceeds.
While Hartford was attempting to resolve its claim with Nash, on March 3, 2006, Nash requested the court to dismiss her lawsuit against PG&E. Hartford was not notified of the dismissal, and continued its efforts to resolve payment of its claim with Nash without success.
On June 9, 2006, Hartford commenced this lawsuit against PG&E, as authorized by section 3852. In its first amended complaint, Hartford alleged a negligence cause of action and sought to recover as damages the workers’ compensation benefits already paid to Nash ($355,669.83), and any future workers’ compensation payments which Hartford might incur, as well as attorney fees allowed by law. Hartford also alleged it made a timely claim upon PG&E, which was denied by operation of law, and the initial complaint was timely filed within six months of Hartford’s notice of claim. Hartford alleged, on information and belief, that PG&E and Nash had entered into a nonsegregated settlement agreement. Hartford further alleged that it had no notice of settlement discussions, had not given its written consent to the settlement, and had no opportunity to recover any paid benefits or special damages it might be entitled to under section 3852.
“Upon payment of compensation to an injured employee, the [workers’ compensation insurer] becomes subrogated to the employer’s rights against the third party, and may enforce those rights in its own name.” (Van Nuis, supra, 36 Cal.App.3d at p. 228, fn. 3.)
PG&E moved for summary judgment seeking to dismiss Hartford’s lawsuit on the ground that its settlement agreement and release with Nash extinguished Hartford’s right to seek reimbursement of benefits directly from PG&E. According to PG&E, the settlement agreement was nonsegregated and resolved both Nash’s claim for damages and Hartford’s claim for reimbursement of benefits. Once Nash settled her action and agreed to release her rights against PG&E, Hartford had no rights against PG&E. Any claim by Hartford had to be made against the settlement sum paid to Nash. PG&E also contended that this “second” lawsuit against PG&E was motivated only by Hartford’s desire to secure attorney fees from a second judgment against PG&E.
Hartford opposed PG&E’s motion. Although Hartford alleged the settlement was “nonsegregated” in its first amended complaint, that statement was not binding because it was based upon information given to Hartford by PG&E, and was refuted by PG&E’s statements in its February 6, 2006 letter, and excerpts from the settlement agreement and release. PG&E could not use its release to bar Hartford’s lawsuit because PG&E knew about Hartford’s claim before it settled with Nash. Hartford had neither been notified of the settlement nor consented to it, and it was not given an opportunity to participate in it. Consequently, although PG&E might have contractual or equitable indemnity rights against Nash, PG&E could not escape liability for Hartford’s claim for reimbursement. Hartford filed the lawsuit after it attempted to obtain reimbursement from Nash and offered to pay attorney fees to Nash’s counsel, but the offer was rejected thereby placing the burden on Hartford to file this lawsuit before the statute of limitations expired.
The trial court found in favor of PG&E when it determined that “PG&E refuted a necessary element of plaintiff’s cause of action. As a matter of law, PG&E had no duty to notify and/or obtain the consent of plaintiff Hartford Accident & Indemnity Company (‘Hartford’) to the pending settlement.” The court further ruled that even assuming PG&E had the responsibility to notify Hartford and obtain its consent, it was not breached in this case because the record was undisputed that Hartford received notice of the settlement before the action was dismissed and chose not to protect its interests. The court also agreed with PG&E that “[p]lainly, what Hartford seeks by this action is to avoid compensating employee’s counsel for the recovery obtained and to recover[] attorney’s fees from PG&E.” Hartford appeals.
“An appeal lies from the judgment, not from an order granting a summary judgment motion.” (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14, fn. 1.) Hartford’s amended notice of appeal states that the appeal is from a judgment after an order granting a summary judgment motion, which was entered on September 7, 2007. Although an order granting PG&E’s summary judgment motion was filed on September 5, 2007, the judgment in favor of PG&E was not filed until October 17, 2007. In the absence of any prejudice to PG&E, we treat Hartford’s amended notice of appeal as a premature notice of appeal from the judgment. (Cal. Rules of Court, rules 8.100(a)(2), 8.104(e)(2).)
DISCUSSION
We review de novo the judgment in favor of PG&E entered upon the grant of a motion for summary judgment. We assume “the role of the trial court and redetermin[e] the merits of the motion. We construe the moving party’s papers strictly and the opposing party’s papers liberally, resolving any doubt as to whether there is a triable issue in favor of the opposing party.” (Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 344.) “We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)
PG&E sought summary judgment on a very narrow ground: whether its settlement agreement and release with Nash bars Hartford’s timely direct action to recoup workers’ compensation benefits. PG&E argues that language in the settlement agreement and release requiring Nash to defend and pay any resulting judgment arising from a lawsuit filed against PG&E bars Hartford from pursuing a direct action against PG&E and Hartford’s only remedy is to sue Nash. We disagree. PG&E misconstrues the statutes and cases that specify the remedies available to an employer seeking to recoup workers’ compensation benefits from a third party following the third party’s settlement and release with the injured employee.
If a third party is liable in whole or in part for injuries to an employee, the employer has “three basic techniques for obtaining reimbursement from the third party for workers’ compensation benefits the employer has paid or become obligated to pay: the employer ‘may bring an action directly against the third party (§ 3852), join as a party plaintiff or intervene in an action brought by the employee (§ 3853), or allow the employee to prosecute the action himself and subsequently apply for a first lien against the amount of the employee’s judgment, less an allowance for litigation expenses and attorney’s fees (§ 3856, subd. b).’ ” (Associated Construction & Engineering Co. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 829, 833.) The Labor Code thus provides alternate remedies. An employer is not barred from pursuing a timely direct action against a third party even though it also might have timely intervened or filed a first lien in the employee’s lawsuit. “Generally, the employer may absent himself from the employee’s lawsuit without waiving his right to maintain an independent lawsuit against the third party.” (Roe v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 884, 892, modified on another ground in Associated Construction & Engineering Co. v. Workers’ Comp. Appeals Bd., supra, 22 Cal.3d at pp. 846-847.)
Section 3852 reads, in relevant part: “The claim of an employee . . . for compensation does not affect his or her claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, . . . may likewise make a claim or bring an action against the third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents.”
Section 3853 reads: “If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail. Proof of such service shall be filed in such action. If the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently.”
Section 3856, subdivision (b), reads: “If the action is prosecuted by the employee alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action, together with a reasonable attorney’s fee which shall be based solely upon the services rendered by the employee’s attorney in effecting recovery both for the benefit of the employee and the employer. After the payment of such expenses and attorney’s fee the court shall, on application of the employer, allow as a first lien against the amount of such judgment for damages, the amount of the employer’s expenditure for compensation together with any amounts to which he may be entitled as special damages under Section 3852.”
In most cases, the employer will chose either to intervene in its employee’s lawsuit or perfect a lien against any entitlement secured by the injured employee. Otherwise, if the employer files its own independent action, it “bears the burden of establishing that a [third party’s] negligence is the proximate cause of an employee’s injuries and the amount of tort damages reasonably resulting therefrom.” (Breese v. Price (1981) 29 Cal.3d 923, 930-931.)
Nor are the employer’s statutory remedies mutually exclusive. “[A]n insurer may sue the third party directly and also apply for reimbursement from the employee’s recovery against the third party.” (Hughes v. Argonaut Ins. Co. (2001) 88 Cal.App.4th 517, 527.) Regardless of the statutory remedy chosen by an employer, it “will not be allowed double recovery and [a third party] will not be subjected to double liability.” (McKinnon v. Otis Elevator Co. (2007) 149 Cal.App.4th 1125, 1137.)
PG&E’s argument relies on its characterization of its agreement with Nash as a “nonsegregated settlement.” A “nonsegregated” settlement includes an employer’s claim for workers’ compensation benefits. Whereas a “segregated settlement” would include only Nash’s damages. But the characterization of Nash’s settlement is immaterial to PG&E’s claim. Whether a settlement is segregated or not is material when a nonsettling employer seeks to recoup benefits from an injured employee’s settlement funds. If the settlement is nonsegregated (it covers the claims of both the employee and the employer), the employer can recover against the settlement and is not required to pursue a direct action against the third party. (See, e.g., Marrujo v. Hunt (1977) 71 Cal.App.3d 972, 977-978.) If the settlement is segregated (it covers only the employee’s claim), the nonsettling employer cannot recover against the settlement but is required to pursue a direct action against the third party. (Van Nuis, supra, 36 Cal.App.3d at p. 230.) In this case, however, we are not concerned with Hartford’s efforts to recoup from the settlement sums paid to Nash. Whether the settlement was segregated or nonsegregated makes no difference. The critical issue here is whether PG&E can use the terms of the settlement and release as a bar to Hartford’s direct action against it. We conclude that PG&E cannot.
Hartford has informed us that it has filed a separate lawsuit against Nash to protect its interests pending resolution of its lawsuit against PG&E. Neither party takes any position on this appeal regarding that lawsuit. However, Hartford also informs us that if this action is reinstated, the two cases should be consolidated so that neither party finds itself in a windfall situation.
“The need to protect the employer from collusive or ill-advised settlements between the employee and the third party has long been recognized.” (Board of Administration v. Kuppens (1975) 49 Cal.App.3d 758, 761; see Board of Administration v. Glover (1983) 34 Cal.3d 906, 912 (Glover); Van Nuis, supra, 36 Cal.App.3d at pp. 227-231.) As amended in 1959, and in its current version, section 3859, subdivision (a), provides, in relevant part, that “[n]o release or settlement of any claim under this chapter as to either the employee or the employer is valid without the written consent of both.” (Stats. 1959, ch. 1255, § 5, p. 3389; Stats. 1971, ch. 485, § 1, p. 969.) The prohibition against settling a claim against a third party without the written consent of the other, pursuant to section 3859, subdivision (a), “complemented the following relevant provision of former section 3860: ‘(a) No release or settlement under this chapter, with or without suit, is valid or binding as to any party thereto without notice to both the employer and the employee, with opportunity to the employer to recover the amount of compensation he has paid or become obligated to pay . . . [and a similar opportunity to the employee]. [¶] (b) The entire amount of such settlement, with or without suit, is subject to the employer’s full claim for reimbursement for compensation he has paid or become obligated to pay . . . .’ ” (Glover, supra, at pp. 912-913.)
“In 1971 the Legislature amended section 3859 by adding subdivision (b) which provides as follows: ‘Notwithstanding anything to the contrary contained in this chapter, an employee may settle and release any claim he may have against a third party without the consent of the employer. Such settlement or release shall be subject to the employer’s right to proceed to recover compensation he has paid in accordance with Section 3852.’ At the same time, section 3860, subdivision (b), was amended to clarify that an employee’s unilateral settlement with a third party tortfeasor which was made pursuant to the authority of the new amendment to section 3859 would not subject the settlement proceeds to the employer’s claim for reimbursement. [¶] The obvious purpose of these amendments was to permit an employee to segregate his own damage claim against a third party from his employer’s claim against the third party for reimbursement for workers’ compensation benefits paid. The employee thus is permitted to settle his own claim for a sum exclusive of amounts he had already received in the form of a workers’ compensation award without jeopardizing the employer’s subrogation right.” (Glover, supra, 34 Cal.3d at pp. 913-914.) In recognition that the right to recover compensation benefits belongs to the employer and not the injured employee (Employers Mutual Liability Ins. Co. v Tutor-Saliba Corp. (1998) 17 Cal.4th 632, 639), “the 1971 amendments authorized an employee’s settlement of his own unreimbursed claim for damages without the employer’s approval and recognized the employer’s independent right to proceed against the alleged tortfeasor to recover payments it had made to its employee.” (Glover, supra, at p. 914.)
Sections 3859 and 3860, as amended, “clearly deny the employer his former right to veto any settlement between the employee and third party; however, the breadth and imprecision of the amendatory language has generated some uncertainty as to an employer’s remedies following such an independent settlement. Much of the controversy centers on the effect of the amendments on the employer’s lien” and its right to join or intervene in an employee’s action against the third party. (Associated Construction & Engineering Co. v. Workers’ Comp. Appeals Bd., supra, 22 Cal.3d at p. 838; see also O’Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 658-659; Marrujo v. Hunt, supra, 71 Cal.App.3d at p. 978). But we are not concerned with an employer’s right to lien or join in an employee’s suit in this case. We are concerned only with the employer’s ability to file a direct action against a third party after the employee has settled its claim against the third party without the employer’s consent. “[W]here the employee settles his claim against the third party without the employer’s consent, the employer may recover the amount of [workers’] compensation benefits paid the employee by bringing an action against the third party pursuant to Labor Code section 3852.” (Van Nuis, supra, 36 Cal.App.3d at p. 230.)
Ventura County Employees’ Retirement Association v. Pope (1978) 87 Cal.App.3d 938 (Pope), is instructive on PG&E’s inability to rely upon its release from Nash to bar Hartford’s direct action. In Pope, an injured employee sought disability payments from a retirement association for injuries she sustained in an automobile collision with Pope. (Id. at p. 942.) Before the award of disability benefits was granted, the employee settled her claim with Pope and generally released him from liability. The Association was not a party to the settlement. Thirteen months after the accident, the Association notified Pope’s insurer of its intention to seek subrogation for its disability benefits paid to the injured employee. Two months later, the Association filed an action against Pope for reimbursement. The trial court awarded judgment to the Association. (Ibid.)
On appeal, the court reversed the judgment against Pope and ordered the matter retried due to an absence of required findings of fact. (Pope, supra, 87 Cal.App.3d at pp. 943-944.) But, in discussing issues that could effect retrial, the court rejected Pope’s assertion that his general release from the injured employee could be used to bar the Association’s claims. (Id. at pp. 944, 946.) “At the time Pope secured his general release from [the injured employee], Government Code section 31820 expressly granted to county retirement associations subrogation rights comparable to those given employers under workers’ compensation law [citations.] Labor Code section 3859 provides: ‘No release or settlement . . . as to either the employee or the employer is valid without the written consent of both.’ This provision was implicitly incorporated into defendant’s general release and defeats any claim of impairment of contract as a bar to the Association’s action.” (Id. at p. 946.) The general release obtained from Nash has the same effect in this case, and we conclude that PG&E may not use its release from Nash to preclude Hartford’s direct action. “[U]nlike the right of subrogation at common law, [Hartford’s] statutory rights of subrogation are not affected by releases to which [it] has not consented.” (Board of Administration v. Kuppens, supra, 49 Cal.App.3d at p. 763.)
The Pope court recognized that the Association’s direct action had not been commenced within one year of the date of the employee’s injury. Because the court was remanding the action for a new trial, it noted that Pope could ask the trial court for permission to amend his pleadings to assert the statute of limitations as an affirmative defense. (Pope, supra, 87 Cal.App.3d at p. 956.)
Insurance Co. of North America v. T.L.C. Lines, Inc. (1996) 50 Cal.App.4th 90 (INA) is also instructive. In INA, an employer brought a timely direct action against a third party who settled an injured employee’s lawsuit without knowing or having reason to know of the employee’s workers’ compensation claim. (Id. at p. 92-93.) In affirming dismissal of the employer’s action, the INA court held that generally an employer not given notice of a nonsegregated settlement has a cause of action against the settling third party alleged tortfeasor “if and only if that third party knew or should have known of the existence of or potential for a compensation claim and failed to notify the employer. In other cases, the good faith settlement and release will serve to protect the third party from further liability, and the employer’s rights will be limited to recovery from the employee . . . or credit against the settlement proceeds.” (Id. at p. 101.) This case falls within the general rule observed by the INA court in that PG&E knew of Hartford’s potential claim to recoup workers’ compensation benefits during its settlement negotiations with Nash but failed to advise Hartford of negotiations or secure its consent to the settlement and release. As noted in Glover, supra, 34 Cal.3d at page 919, “[W]here, as in Pope [ ], the third party tortfeasor prior to settlement is or reasonably should be aware of the possibility of the employer’s claim, such tortfeasor may also incur liability to the employer under the statutory scheme because of his failure to notify the employer of the settlement and to obtain its consent thereto.” Although the quoted statement is dictum in Glover, it is persuasive because it is supported by case law (Pope) and comports with the policy of the Labor Code to insure that the employer recovers on its claim for reimbursement of workers’ compensation benefits (County of San Diego v. Sanfax Corp. (1977) 19 Cal.3d 862, 872).
Contrary to PG&E’s contentions, O’Dell and Marrujo do not compel dismissal of Hartford’s lawsuit. In O’Dell, the court refused to vacate the dismissal of an employee’s action against a third party so that a non-settling employer could intervene. (O’Dell v. Freightliner Corp., supra, 10 Cal.App.4th at pp. 658-662.) In Marrujo, the court granted a nonsettling employer’s request to enforce its lien filed in the employee’s action against the employee’s settlement instead of relegating the employer to a direct action against third parties. (Marrujo v. Hunt, supra, 71 Cal.App.3d at pp. 977-978.) The cases do not bar a nonsettling employer from pursuing a direct action against a third party under the circumstances presented here.
We also are not persuaded by PG&E’s argument that Hartford’s lawsuit undermines the Labor Code policy “that as far as possible, the third party need defend only one lawsuit.” (County of San Diego v. Sanfax Corp., supra, 19 Cal.3d at p. 872, italics added.) PG&E knew of Hartford’s claim for reimbursement before it settled with Nash. PG&E prudently protected itself against risk associated with Hartford’s possible lawsuit by providing in its settlement agreement and release that Nash would defend against such a lawsuit and pay any resulting judgment from the settlement proceeds paid to her by PG&E. (Associated Construction & Engineering Co. v. Workers’ Comp. Appeals Bd., supra, 22 Cal.3d at p. 839, fn. 7, citing to Levels v. Growers Ammonia Supply Co. (1975) 48 Cal.App.3d 443, as an example of a “successful consummation” of an agreement similar to the one between PG&E and Nash.) But PG&E cannot use the settlement agreement and release as a shield to bar Hartford’s direct action. Section 3860, subdivision (a), prevents PG&E “from setting up [its] . . . settlement as a bar to any independent action” by Hartford against it. (Roski v. Superior Court (1971) 17 Cal.App.3d 841, 846-847.)
The Roski decision regarding the nonsettling employer’s right of direct action against a third party despite the settlement of the injured employee’s action is not affected by the 1971 amendments to the Labor Code. (See O’Dell v. Freightliner Corp., supra, 10 Cal.App.4th at p. 660.)
If Hartford prevails in its suit, PG&E will not be required to pay twice for workers’ compensation benefits (once to Nash and again to Hartford). “By providing that [Nash] would hold [PG&E] harmless against any claim by [Hartford], the settlement requires [Nash] to defend [Hartford’s] action to recover benefits and, [if Hartford proves its case], [Nash] must pay [Hartford] out of the settlement proceeds.” (Ellis v. Wells Manufacturing, Inc. (1989) 216 Cal.App.3d 312, 317.) PG&E “will not be subjected to double liability.” (McKinnon v. Otis Elevator Co., supra, 149 Cal.App.4th at p. 1137.)
PG&E renews its argument that Hartford’s lawsuit should be dismissed because Hartford’s true and admitted purpose is to avoid paying attorney fees to Nash’s personal injury counsel. According to PG&E, if Hartford had intervened in Nash’s action against PG&E or filed a lien in that action, Hartford would have been required to pay its fair share of attorney fees incurred by Nash because the settlement included the amount of benefits paid by Hartford and was obtained solely due to the efforts of Nash and her attorney. However, Nash’s agreement to defend any lawsuit against PG&E and pay any resulting judgment out of the proceeds of the settlement anticipated that this lawsuit might be filed by Hartford against PG&E. Hartford only looked to Nash to recoup its benefits at PG&E’s request. Any failure by Hartford to mention in its correspondence with Nash’s counsel that it had a right to recover against PG&E was not an implicit acknowledgment by Hartford that it could not pursue a direct action against PG&E. (See Biedebach v. Charles (1950) 96 Cal.App.2d 250, 253.) Hartford should not be estopped from suing PG&E just because it was unable to reach an agreement with Nash regarding the reimbursement of benefits and related attorney fees. Hartford neither waived its right pursuant to section 3852 nor became estopped to pursue its direct action against PG&E. Hartford “is here merely seeking the remedy the statute expressly gives it. It has done nothing to forfeit the right.” (Pacific G. & E. Co. v. Indus. Acc. Com. (1935) 8 Cal.App.2d 499, 504.)
Nash’s lawyer is now representing PG&E apparently pursuant to the terms of the settlement agreement and release with Nash.
We express no opinion on the ultimate merits of this case. We conclude only that as a matter of law, Hartford’s lawsuit against PG&E is not barred by the settlement agreement and release between PG&E and Nash.
Although PG&E also sought summary adjudication dismissing Hartford’s request for attorney fees, the trial court did not rule on that request. On remand, the trial court will have the opportunity to consider the issue.
DISPOSITION
The judgment in favor of PG&E is reversed. On remand the trial court should vacate its order granting summary judgment in favor of PG&E and file a new order denying PG&E’s motion for summary judgment. Plaintiff is awarded costs on this appeal.
We concur: McGuiness, P.J., Jenkins, J.