Present: Carrico, C.J., Compton, Stephenson,1

 Lacy, Keenan, and 

Koontz, JJ., and Whiting, Senior Justice 

ROBERT L. SMITH, JR., 

OPINION BY SENIOR JUSTICE HENRY H. WHITING 

v. Record No. 961752 September 12, 1997 

KENNETH J. SETTLE, JR., by and through 

his father and next friend, 

KENNETH J. SETTLE, SR., ET AL. 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

LeRoy F. Millette, Jr., Judge 

 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 DumfriesTriangle 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." 

 

 1Justice Stephenson participated in the hearing and decision of 

this case prior to the effective date of his retirement on July 1, 

1997. 
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 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."2

 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.3

 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.4

 Thereafter, the court heard argument on counsel's proposed 

 2This issue was decided by Carleton Penn, Judge Designate. 

 3When 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. 

 4On 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 appeal." 
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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 

negligence.5

 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.6

 The plaintiffs assign cross-error (1) to 

 5The court overruled the remaining grounds of the plaintiffpassengers' motion and overruled all grounds of Mr. Settle's 

motion. 

 6We 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 
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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 with Smith. 

 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 

ultimate liability if his primary carrier did not honor the 

agreement. 
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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 high-low agreement. 

 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 
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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. 
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 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.7

 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 

 

 7Contrary 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). 
 -8- 

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 

granted. 

 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 
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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 for Smith. 

Reversed and final judgment.