As an adjuster, you have likely noticed the growing number of mandatory settlement conferences ordered by the Court in construction defect actions requiring your personal attendance. With a high volume case load, you are always looking for opportunities to spend your time efficiently and effectively. Sometimes, you feel like there is a good reason why you should not have to personally attend a mandatory settlement conference on behalf of every subcontractor. “There must be a way to resolve the dispute without being at the Court in person,” you think. Fortunately, your retained counsel can help!
Counsel for Plaintiffs or the Developer have been more inclined to request the Court order a mandatory settlement conference after only a few mediation sessions in the typical construction defect action. The proposed orders to set these mandatory settlement conferences are usually drafted by Developer counsel. The proposed orders frequently include language which would order the insurance claims representatives who are the actual handling adjusters of the subcontractors to personally appear at the proposed mandatory settlement conference.
For the adjuster with an extensive caseload, this can become a daunting predicament. It is impractical for you to attend every mandatory settlement conference ordered. In other instances, the potential exposure of a peripheral client does not warrant the travel time, expense and time necessary to personally appear at a mandatory settlement conference. An adjuster appearing telephonically is a great option under circumstances when doing so would not impede settlement negotiations.
Fortunately, there are steps counsel can take to persuade the Court to allow an adjuster to appear at a mandatory settlement conference telephonically when his or her personal appearance is not practical or necessary to resolve the case. Once counsel for Developer or Plaintiffs files a proposed order requiring the personal attendance of an adjuster at a mandatory settlement conference, subcontractor counsel can immediately file an objection and/or a request for relief on behalf of his or her client’s adjuster. Therein, counsel has an opportunity to make the Court aware of any good cause which would make it unduly burdensome for the adjuster to personally attend the mandatory settlement conference.
California Rule of Court 3.1380 notes, in relevant part, “persons with full authority to settle the case must personally attend the conference, unless excused by the court for good cause.” Good cause can include an adjuster’s geographic location, the time and expense traveling to the mandatory settlement conference, a scheduling conflict, or a showing to the Court that the party to the action is peripheral with nominal exposure. All can add credence for counsel to argue to the Court the adjuster’s telephonic attendance at the mandatory settlement conference would not impede settlement efforts.
Many times, a proposed order to set a mandatory settlement conference will identify the mediator of the case as the individual to act as the facilitator of the mandatory settlement conference. If so, counsel can also object to the proposed order on the basis such an order would not be consistent with the restrictions delineated in California Rule of Court 3.1380(d). A court must not “Appoint a person to conduct a settlement conference under this rule at the same time as that person is serving as a mediator in the same action.” Another source of authority for this strategy can be found in the case Jeld-Wen, Inc. v. Superior Court, 146 Cal.App.4th 536 (2007).
It is good practice for the attorney to confirm with the Court and the mediator that the adjuster will be available telephonically, have full settlement authority and will be available at any time throughout the duration of the mandatory settlement conference when making a request for relief.
Some savvy Plaintiff and Developer attorneys request the Court order a mandatory settlement conference during a routine case management conference without prior notice to subcontractor counsel. Should this occur, counsel for the subcontractor should request relief prior to the Court ordering the mandatory settlement conference. Doing so has the result of crafting the Court’s order inclusive of a specific exception for his or her adjuster to appear telephonically.
Sometimes the Court is unwilling to allow an adjuster to appear at a mandatory settlement conference telephonically despite a reasonable request for relief. Alternative actions, such as hiring a local adjuster to attend in place of the handling adjuster, requesting relief from the mediator presiding over the mandatory settlement conference or throwing caution to the wind and not attending the mandatory settlement conference, all carry the risk of the Court setting an order to show cause hearing as to why the adjuster was not personally in attendance. However, with good cause, counsel can obtain relief from an order compelling an adjuster’s personal attendance at a mandatory settlement conference while still positioning the case for a successful resolution.
ABOUT THE AUTHOR: Justin Evenson is an Associate at Tyson & Mendes. Mr. Evenson specializes in personal injury, premises liability, general liability, and employment litigation. Contact Justin at (858) 263-4066 or firstname.lastname@example.org.