SMITH v. SETTLE, et al.
September 12, 1997
Record No. 961752
ROBERT L. SMITH, JR.,
KENNETH J. SETTLE, JR., by and through
his father and next friend,
KENNETH J. SETTLE, SR., ET AL.
OPINION BY SENIOR JUSTICE HENRY H. WHITING
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
Present: Carrico, C.J., Compton, Stephenson, Lacy, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
This appeal of consolidated personal injury cases raises
issues involving a so-called high-low agreement, sovereign
immunity, and rulings on jury instructions.
Kenneth J. Settle, Sr., was driving a car on State Route 1 in
Prince William County when it was struck in the intersection of
Route 1 and Fuller Road by an ambulance of the Dumfries-Triangle
Rescue Squad, Incorporated. The ambulance was being driven on
Fuller Road by rescue squad member Robert L. Smith, Jr., with its
siren and red lights in operation. At that time, the traffic
light controlling the intersection was green in Settle’s
direction and red in Smith’s direction. Smith pled guilty to a
reckless driving charge arising from this collision.
Settle and the passengers in his vehicle, Dana Powell-Settle
and their minor children, Dana L. Powell-Settle and Kenneth J.
Settle, Jr., (by their next friend), filed separate personal
injury actions against Smith and the rescue squad. These actions
were "consolidated for all purposes, including trial."
Pleas of sovereign immunity filed by Smith and the rescue
squad were sustained after a pretrial hearing. Hence, the circuit
court dismissed the rescue squad as a party defendant and held
that Smith could only be liable for "acts or omissions
constituting gross negligence." 
Following presentation of the testimony at a subsequent jury
trial, counsel for the plaintiffs stated that the parties and the
primary liability insurance carrier of Smith and the rescue squad
had arrived at a high-low agreement. Although the statement was
made on the record in the presence of opposing counsel, the court
was not present. As counsel for the plaintiffs
noted on brief, the agreement was set out in the record "in
its entirety." Among other things, the agreement required
that the primary carrier pay the plaintiffs $350,000 if the jury
returned verdicts for Smith.
Thereafter, the court heard argument on counsel’s proposed
jury instructions and read the instructions it had granted to the
jury. After closing arguments by counsel, the jury deliberated
and returned verdicts for Smith.
Later, the plaintiffs refused the primary carrier’s tender of
$350,000. Thereafter, the defendants filed a motion to enforce
the high-low agreement, which the court denied. Instead, the
court sustained the plaintiff-passengers’ motions to set aside
the verdicts and to award a new trial because the jury had been
erroneously instructed that the passengers could not recover if
the driver of the Settle car was guilty of contributory
After a second jury failed to agree upon the verdicts at the
second trial, a third trial was held in which a third jury
returned verdicts for Smith. Overruling the plaintiffs’ motion to
set aside the verdicts, the court sustained their alternative
motions to enforce the high-low agreement and ordered "the
defendant insurer" to pay the plaintiffs $350,000, "as
agreed by the parties."
Smith appeals that part of the final order enforcing the
high-low agreement. The plaintiffs assign
cross-error (1) to the sustaining of Smith’s plea of sovereign
immunity and (2) to the overruling of their motions to set aside
the verdicts of the third trial.
Smith contends that he is no longer bound by the high-low
agreement because the plaintiffs repudiated the agreement by
refusing his primary carrier’s tender of $350,000 following the
return of the first verdict. The plaintiffs respond that their
refusal of the tender was justified under the agreement. We agree
Recognizing that there is no explicit provision in the
agreement requiring the jury to be "properly instructed on
the law," plaintiffs assert that it "was an implicit
term of the agreement [and] . . . there was no
agreement not to seek post verdict relief in the trial
court." In his statement of the terms of the agreement,
counsel for the plaintiffs specifically listed a number of terms
and conditions relating to a reservation of the plaintiffs’ right
to seek further recoveries from the defendants’ excess liability
carrier. However, with regard to the effect of expected verdicts,
he said only that counsel on behalf of the parties "have
reached an agreement on a high/low with respect to the verdict in
the consolidated Settle cases."
Finding nothing in counsel’s statement implying that a
"properly instructed" jury was part of the agreement or
that either party could seek post-verdict relief in the trial
court, we will not rewrite the agreement to impose provisions
that are neither stated nor implied therein. Addison v.
Amalgamated Clothing and Textile Workers Union of America,
236 Va. 233, 236, 372 S.E.2d 403, 405 (1988). The plaintiffs’
unjustified refusal of the tender prevented performance of the
agreement and gave Smith the right to regard it as terminated. Boggs
v. Duncan, 202 Va. 877, 882, 121 S.E.2d 359, 363 (1961).
Therefore, we conclude that the court erred in enforcing the
Because the high-low agreement no longer bound Smith at the
time of the third trial, we turn to the sovereign immunity issue
raised in plaintiffs’ assignments of cross-error. Since the
circuit court heard the evidence on the issue and sustained the
pleas of sovereign immunity, we resolve any conflicting evidence
in the light most favorable to Smith, the prevailing party on
this issue. See Carmody v. F.W. Woolworth Co., 234
Va. 198, 201, 361 S.E.2d 128, 130 (1987).
As the duty officer of the rescue squad at the time, Smith was
responsible for determining which personnel would ride in each
ambulance. Smith had more experience and qualifications than
personnel assigned to ride in the ambulance described as
"rescue squad three." Accordingly, Charles Kenny, the
driver of rescue squad three, and Smith agreed that if Kenny’s
ambulance was dispatched by the Prince William County fire and
rescue communications center to the scene of an emergency while
Smith was away from the station house, Kenny and Smith were to
establish radio contact to determine whether Smith would
accompany rescue squad three to the emergency.
Smith was away from the station house when he heard on his
radio that the rescue squad had been ordered to respond to an
emergency on Interstate Highway 95 (I-95) and that rescue squad
three was responding. Acting in accordance with the agreement,
Smith also responded to the order by driving his ambulance toward
I-95 and a location where he hoped to establish radio contact
with personnel in rescue squad three. Since rescue squad three
"needed personnel with more qualifications," and Smith
had such qualifications, he thought he might be compelled to
dispatch himself to the scene of the emergency. The collision
occurred as Smith was looking down to adjust the channel on his
ambulance radio to establish contact with rescue squad three.
The plaintiffs argue that Smith was not entitled to sovereign
immunity because: (1) his trip to a location where he could
establish radio contact was mere preparation for a possible
emergency dispatching; (2) he had not been dispatched to the
scene by the county fire and rescue communications center as
required by Prince William County Code ? 7-29; (3) he was not
then responding "to the location of an emergency call"
as required by a regulation of the Board of Health; and (4) he
was not operating his vehicle with due regard to the safety of
persons and property as required by Code ? 46.2-920.
However, we think that the evidence sufficiently supports the
court’s finding that Smith was entitled to sovereign immunity.
The evidence supports a conclusion (1) that Smith’s ambulance
trip was not mere preparation but an immediate and necessary
response to the emergency, and (2) that the trip was made in
conformity with the center’s dispatch order and in response to
the location of an emergency call as required by the county code
and health board regulations.
Further, sufficient evidence supports the third jury’s factual
finding that Smith had complied with his duty not to be grossly
negligent, the controlling standard of care in sovereign immunity
cases. Colby v. Boyden, 241 Va. 125, 130, 400 S.E.2d 184,
187 (1991). Accordingly, we reject the plaintiffs’ contentions.
Next, we consider the plaintiffs’ argument that the trial court
erred in refusing their tendered Instructions 13, 14, 24, and 25,
and in granting Smith’s tendered Instructions T and U. Refused
Instructions 13 and 14, respectively, stated in effect that Smith
was permitted to exceed the speed limit and to proceed through a
red light. However, both tendered instructions had a proviso that
any such conduct could not constitute "a reckless disregard
of the safety of persons and property." The plaintiffs note
that this proviso describes "the same kind and degree"
of conduct proscribed by Code ? 46.2-852,
a reckless driving statute, which they assert establishes the
applicable standard of care in these cases.
Granted Instructions T and U, respectively, contained similar
language regarding speed and proceeding through a red light, but
each had a different proviso articulating a different standard
for determining a deviation from the degree of care required,
namely that Smith was "not grossly negligent." In Colby,
we held that the sovereign immunity doctrine required a showing
of gross negligence to establish a violation of the standard of
care required of drivers in Smith’s situation and that former
Code ? 46.1-226
(now in substance Code ? 46.2-920)
did nothing to abrogate that standard. 241 Va. at 130, 132, 400
S.E.2d at 187, 188-89. For this reason, Instructions 13 and 14
were properly refused and Instructions T and U were properly
Plaintiffs’ tendered Instructions 24 and 25, as they were to be
amended, provided in effect that Smith owed the duties of keeping
his ambulance under proper control and keeping a proper lookout
and that if he failed to do so in a grossly negligent manner,
"he may be liable . . . in accordance with other
instructions of the court." We do not consider whether these
instructions were proper statements of the law applicable to this
case for the following reasons.
Over Smith’s objection, Gary Randolph Pope, a captain in the
Fairfax County fire department, was permitted to testify as the
plaintiff’s expert witness on the factual issue of "the
standard of care as it applies to emergency vehicles proceeding
through a red light." Thereafter, plaintiffs elicited
testimony from Pope that this standard imposed upon the operators
of such emergency vehicles the duties of "bring[ing] the
vehicle within control before entering the intersection" and
of maintaining a proper lookout. Having created factual issues of
the existence of these duties, plaintiffs are not permitted to
take the inconsistent position that the same issues are matters
of law, suitable for jury instructions. See Leech v.
Beasley, 203 Va. 955, 961-62, 128 S.E.2d 293, 297-98 (1962).
Given these circumstances, we find no error in refusing
Instructions 24 and 25.
For the above reasons, (1) we reject the plaintiffs’ assignments
of cross-error and (2) we will reverse the judgment of the trial
court enforcing the high-low agreement and enter final judgment
Reversed and final judgment.
 Justice Stephenson
participated in the hearing and decision of this case prior to
the effective date of his retirement on July 1, 1997.
 This issue was decided by
Carleton Penn, Judge Designate.
 When it was beneficial to
either side’s argument not to be bound by the high-low agreement
at various times during the course of this prolonged litigation,
that side noted the infancy of two plaintiffs and the absence of
court approval of the "settlement" under Code ? 8.01-424. Our
decision makes it unnecessary to consider what impact, if any,
this Code section has upon such high-low agreements.
 On brief, counsel for
plaintiffs notes that if the verdicts were less than $350,000
plaintiffs would nevertheless receive $350,000 and if the
verdicts exceeded $1,000,000, the maximum liability of the
insured and primary carrier would be $1,000,000, with the
plaintiffs reserving their right to assert a claim for the excess
against the excess carrier. Additionally, he notes that the
plaintiffs would be paid any amount awarded between $350,000 and
$1,000,000 and that "[b]oth parties waived any right to
 The court overruled the
remaining grounds of the plaintiff-passengers’ motion and
overruled all grounds of Mr. Settle’s motion.
 We find no merit in the
plaintiffs’ contention that Smith has no right to appeal an order
which held that the agreement was binding and directed that his
primary carrier comply with the high-low agreement. As Smith
points out on brief, he is entitled to an ultimate disposition of
a case he has won in the trial court, but the final order leaves
open the question of his ultimate liability if his primary
carrier did not honor the agreement.
 Contrary to the plaintiffs’
characterization of Smith’s trip as "the simple operation of
a vehicle in routine traffic," we think the evidence
supports a finding that the trip involved the exercise of the
discretion and judgment required by a person performing a
governmental function in operating a vehicle in response to an
emergency. Compare Heider v. Clemons, 241 Va. 143,
145, 400 S.E.2d 190, 191 (1991) with Colby v. Boyden,
241 Va. 125, 129-30, 400 S.E.2d 184, 186-87 (1991), and National
R.R. Passenger Corp. v. Catlett Volunteer Fire Co., 241 Va.
402, 412-13, 404 S.E.2d 216, 221-22 (1991).