Twister Interferes With Clear Sailing Agreement.

The parties entered into a settlement agreement containing a “clear sailing” provision, which allowed class counsel to seek an award of attorney fees and incentive payment from the trial court with the assurance that defendant would not oppose, if the amount sought was less than or equal to an agreed amount. An additional clause required class counsel to accept either the maximum specified in the “clear sailing” provision, or the amount awarded by the trial court, whichever was less. The fee and incentive payment order of the trial court amounted to only a fraction of what was requested. Plaintiffs appealed and defendant argued the provision requiring plaintiffs to accept the less of the amount specified in the agreement, or the amount awarded by the trial court, constituted an implied waiver of their right to appeal from the trial court’s order. The appellate court agreed with the trial court, that, as a matter of law, the agreement did not amount of a waiver of the right to appeal because it was not explicit and unambiguous. Noting “there is an important policy distinction between counsel who enforce rights belonging to a large class, or the public in general, and contingency fee attorneys who litigate matters involving purely individual injuries or damages,” the appellate court reversed both the attorney fee award and the incentive payment order. Upon remand for the trial court to award fees and an incentive payment for the class representatives, the appellate court stated the trial court “shall have the discretion to include an additional amount, representing attorney fees for this appeal.” (Ruiz v. California State Automobile Association Inter-Insurance Bureau (Cal. App. First Dist., Div. 4; December 20, 2013) 222 Cal.App.4th 596.)