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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

VANESSACONDON, ) ) No. 86130-7 Appellant, ) ) v. ) EnBanc ) FELY CONDON, ) ) Respondent. ) Filed 

### MAR 21 2013

MADSEN, C.J.-In open court, appellant Vanessa Condon1 and respondentFely Condon entered into a stipulated settlement and dismissal withprejudice ofVanessa's claims against Fely, stemming from an automobile accident. Before payment ofthe settlement funds, Felyrequested that Vanessa sign a release agreement, whichthe parties had not discussed norplaced onthe record. Vanessarefused to signthe release and Fely made a motionto enforce the settlement and the release. The trial court entered an order deeming the release signed. Vanessa filed a motion for discretionary review in this

1For clarity, the parties will be referred to by their first names.No. 86130-7 court,2 arguing the trial court lackedjurisdictionto enforce release terms that were not a part ofthe original agreement. Fely contended Vanessa waived her right to appeal by accepting the settlement check. We hold that Vanessa Condon did not waive her right to appeal and that the trial court improperly added implied terms to the agreement. Accordingly, we reverse. FACTS ANDPROCEDURALHISTORY OnAugust 24, 1996, Fely Condonwas driving with her daughter, Vanessa Condon, whenthey were struckby another vehicle. Vanessa was ejected from her mother's car and sustained several injuries including a concussion, a damaged tooth, and cuts and contusions. Vanessa was entitled to coverage by Farmers Insurance Co. of Washington under an underinsured motorist (UIM) policy, whichprovided for arbitration ofdisputes. Her claim was arbitrated. The award of$108,000 was confirmed and judgmententered on February 10, 2011 in King County. Vanessa also instituted an action in Kitsap Superior Court against Fely in 2005. The parties settled before trial. In open court on March 29; 2011, the parties agreed that Vanessawould receive a $100,000 payment from Farmers, credited against the King County UIM arbitrationjudgment, and Fely wouldpay the remaining $8,000 to satisfy the DIMjudgment, with attorney fees to be argued at a later date. No written settlement
or release was presented. Theparties signed a stipulation and order ofdismissal on March 29, and on April 1the court ordered dismissal with prejudice.

2 Commissioner Steven Goffruled that "[t]he notice for discretionary review shall be given the same effect as a notice ofappeal." Ruling, Condon v. Condon, No. 86130-7, at 4 (Wash. Oct. 25, 2011). 2No. 86130-7 OnMarch 30, 2011, priorto the dismissal, Fely's counsel sent Vanessa's counsel a receipt and release ofclaims form to sign. On April1, 2011, Vanessa notified Fely that she would not signthe release. Fely then moved to enforce the settlement and compel Vanessato sign the receipt and release. Vanessa objected to the motion, arguing that the release was never part ofthe settlement and thatthe stipulated order ofdismissal with prejudice ended all litigation. She also asked for CR 11 sanctions against Fely. Fely argued thatthe separate release was a commonpractice in settlements and that she would not have entered into the agreement had she been aware that Vanessa did not intendto sign the release. At the April22, 2011 hearing on the motion, the trial court asked Vanessa's attorney whether she objected to aparticularpart ofthe release, or ratherthe "concept" of
a release. VerbatimReport ofProceedings (VRP) (Apr. 22, 2011) at 5. Her attorney replied that Vanessahad not agreed to any release. Referencing an unpublished case from California, El-Fadly v. Northridge Park Townhome OwnersAss 'n, No. B172684, 2005 WL 1503857 (Cal. Ct. App. June 27, 2005) (unpublished), the trial courtruled that the settlement would stand and that the settlement check would not be released until a release was signed. Theparties were orderedto create a "customary and usual release." VRP at 9. At a subsequenthearing, the trial courtheard the parties' arguments on the release language provided by Fely's attorney. Vanessa's attorney expressed concern thatthe language was overly broad and couldpreclude Vanessa from receiving the unsatisfied

3No. 86130-7 judgment from the King County UIM decision and bringing any potential bad faith claims. Her attorney filed a declaration that included the release Fely had provided the court, with certain sections redacted. Fely's counsel argued thatthe portions ofthe release, indemnity, and hold harmless provisions to which Vanessa objected were standard, saying, "[T]his is a standardrelease in this case which we ordinarily and routinely havepeople sign." VRP (May 13, 2011) at 14. The court was satisfied with the unredacted release and entered an order deeming the release signed, noting that the record ofthe May 13 proceeding was sufficientto support Fely's claim that "the release only applies to this case." 

### !d. at 12. ANALYSIS Citing RAP 2.5(b), Fely contends thatVanessawaivedher right to appeal because she received the benefit ofthe settlement when she cashed the $100,000 check. See Buckley v. Snapper PowerEquip. Co., 61 Wn. App. 932, 941-42, 813 P.2d 125 (1991). RAP 2.5(b)(1) allows aparty to accept the benefits ofatrial court decision without losing the rightto appeal under only four circumstances, including "if, regardless ofthe result of the review based solely on the issues raised by the party accepting benefits, the party will be entitled to at least the benefits ofthe trial court decision." "Thepurpose ofRAP 2.5(b) is to ensure that a party seeking review will be able to make restitution ifa decision is reversed or modified on appeal." Scottv. Cascade Structures, 100 Wn.2d 537,541,673 P.2d 179 (1983) (citing RAP 2.5(b)(2) cmt., 86 Wn.2d 1151 (1976)). In

4No. 86130-7
this case, even ifthe settlement was vacated, Vanessa would be entitledto the $100,000 through the King County UIM arbitration. We find no waiver on these facts. Next, Vanessa argues that the trial court lackedjurisdictionto enforce a settlement following dismissal ofclaims. This is a question oflaw that is reviewed de novo. Crosby v. Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999); State v. Squally, 132 Wn.2d 333, 340-41, 937 P.2d 1069 (1997). Enforcement ofthis settlement is governed by CR2A. In reMarriage of Ferree, 71 Wn. App. 35, 39, 856 P.2d 706 (1993). The rule provides: No agreement or consentbetweenparties or attorneys in respect to the proceedings in a cause, the purport ofwhich is disputed, will be regarded by the court unless the same shall have been made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereof shall be in writing and subscribed by the attorneys denying the same. CR 2A. Thepurpose ofCR2A is to give certainty and finality to settlements. Eddleman
v. McGhan, 45 Wn.2d 430,432, 275 P.2d 729 (1954) (discussing the predecessor ofCR 2A, which used identical language). Where the CR2Arequirements are met, a motion to enforce a settlement is a commonly accepted practice. See Ferree, 71 Wn. App. at 45 (trial court did not err when it enforced a settlement agreement); Brinkerhoffv. Campbell, 99 Wn. App. 692, 697, 994 P.2d 911 (2000) (determining a trial court abuses its discretion when it enforces a settlement without holding an evidentiaryhearing when there are disputed issues offact); Howardv. Dimaggio, 70 Wn. App. 734, 739, 855 P.2d 335 (1993) (trial court improperly enforced settlementwhere agreementpriorto settlement was notreached on hold

5No. 86130-7 harmless and release documents); Kwiatkowski v. Drews, 142 Wn. App. 463, 479, 176 P.3d 510 (2008) ("We review atrial court's order enforcing a settlement agreement de novo."). The premise ofVanessa's argument is that a dismissal withprejudice ends all litigation, thus removing the court'sjurisdiction. Vanessa cites CorkInsulation Sales Co.
v. Torgeson, 54 Wn. App. 702, 705, 775 P.2d 970 (1989), as support for her position. In Cork, the Court ofAppeals held that the trial court lackedjurisdictionto enter ajudgment awarding terms against the defendant in connection with a motion to vacate a default judgmentweeks after the plaintiffobtained avoluntary dismissal ofhis claims. Unlike this case, Cork did not involve enforcement ofa settlement, the terms ofwhich were in dispute. Moreover, the Court ofAppeals subsequently explained the limited scope ofits holding in Cork in Hawkv. Branjes, 97 Wn. App. 776, 782, 986 P.2d 841 (1999). In Hawk, the trial court awarded the defendant tenant costs and attorney fees after granting the landlords' motion to voluntarily dismiss their complaint. Hawk, 97 Wn. App. at 778- 79. The landlord appealed, claiming that its voluntary dismissal endedthe case, and the trial court, therefore, based on Cork lackedjurisdictionto make the award. !d. at 782. The Court ofAppeals in Hawks distinguished its Cork decision, statingthat Cork did not involve an attorney fee awarded under a statute or contractual provision. !d. The court noted that "[w]hile a voluntary dismissal under CR41 (a)(l) generally divests a court of jurisdictionto decide a case on the merits, an award ofattorneys' fees pursuantto a statutory provision or contractual agreement is collateral to the underlying proceeding."

6No. 86130-7


### Id. at 782-83. The court observed that "to hold otherwise would unnecessarily subjectthe courts to separate actions to recover fees readily ascertainable upon dismissal ofthe underlying claim." 

### ld. at 783. Although enforcement ofa settlement is different from an award ofattorney fees
or costs providedby a contract or statute, there are similar concerns regarding subjecting courts to separate actions to enforce the very settlements upon which the dismissals are based. For instance, the United States Supreme Court considered a similar issue as it pertained to district courts retaining ancillaryjurisdiction over a settlement. Kokkonen v. Guardian LifeIns. Co. of Am., 511 U.S. 375, 380-81, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). There, the Court said that ancillaryjurisdiction could exist following dismissal of
a settlement in order to protect its proceedings and vindicate its authority ifthe parties' obligation to comply with the terms ofthe settlement agreement had been made part ofthe order ofdismissal-eitherby separate provision (such as aprovision "retainingjurisdiction" over the settlement agreement) or by incorporating the terms ofthe settlement agreement in the order. In that event, a breach ofthe agreement would be a violation ofthe order, and ancillaryjurisdictionto enforce the agreementwould therefore exist. 

### I

d. at 381. In the absence ofancillaryjurisdiction, the courtheld that enforcement ofthe settlement could only proceed in state court. Id. at 382. AlthoughKokkonen does not address a state trial court'sjurisdiction, it does provide some guidance. Several states have also grappled with this question, including Florida, California, and Illinois. In Florida, the supreme court in Paulucci v. GeneralDynamics Corp., 842 So. 2d 797, 803 (2003), considered whether a court hasjurisdictionto enforce a

7No. 86130-7
settlement agreement where the courthas either incorporatedthe agreement into a final judgment or approved ofthe agreementby order and retainedjurisdictionto enforcethe terms. Paulucci affirmatively held that a court does havejurisdictionunder those circumstances, butnoted thatthe extent ofthe court's continuingjurisdictionwas circumscribed by the terms ofthe agreement. 

### !d. Similarly, California amended its code in 1993 to permitthe courtto retain jurisdictionto enforce a settlement following dismissal, upon the parties' request. 3 CAL. Crv. PROC. § 664.6. There, it is insufficient for a settlement agreementto simply state thatjurisdiction is retained for enforcement; arequest mustbe made to the court in order to retainjurisdiction. Hagan Eng'g, Inc. v. Mills, 115 Cal. App. 4th 1004, 1010-11, 9 Cal. Rptr. 3d 723 (2003) (noting that Hagan could have had a conditionaljudgment entered, had the trial courtretainedjurisdictionbefore dismissal, orprovided another enforcement mechanism, butthat instead, he would have to file a new action for breach ofthe settlement agreement). There is also authority in Illinois that grants a trial courtjurisdictionto enforce a settlement following dismissal. Dir. of Ins. v. A & A MidwestRebuilders, Inc., 383 Ill. App. 3d 721, 725, 891 N.E.2d 500 (2008). The Court ofAppeals inA & A concluded thatbecause the trial court expressly made the dismissal contingent on the terms ofthe settlement agreement and most compellingly, because the court stated it retained
3 "Ifparties to pending litigation stipulate, in awriting signed by the parties outside the presence ofthe court or orally before the court, for settlement ofthe case, orpartthereof, the court, upon motion, may enterjudgmentpursuantto the terms ofthe settlement. Ifrequested by the parties, the court may retainjurisdiction overthe parties to enforce the settlementuntil performance in full ofthe terms ofthe settlement." CAL. Crv. PROC. § 664.6. 8No. 86130-7 jurisdiction, the trial courthadjurisdictionto enforce the settlement. A & A, 383 Ill. App. 3d at 725. Italso noted that "a court retains the inherent authority to enforce its own orders." 

### !d. at 723 (citing County of Cook v. Ill. Fraternal Order of Police Labor Council, 358 Ill. App. 3d 667, 671, 832 N.E.2d 395 (2005)). Florida, California, and Illinois all appear to agree that a court can enforce a settlement following dismissal where it has expressly retainedjurisdiction at the time ofsettlement. Within Washington, several counties have enacted courtrules addressing this Issue. In King County, parties who have reached a settlement fully resolving all claims
can delay dismissal for the purpose ofenforcing a settlement agreement. KING COUNTY LOCAL R. 41(e)(3). Pierce County also acknowledges that enforcementmay delay dismissal in Pierce County Superior CourtLocal Civil Rule 41(e)(4). There, ifthe parties have reached an agreement and file a stipulation with the court, and the execution ofthe settlement will take more than 90 days, an order ofdismissal bythe court under PCLR 41( e)(3) is waived. Guidance can also be found within secondary sources. Washington Practice suggests that a party wishing to enforce a settlement could commence a new action for breach butthat a motion to enforce under the original cause number is preferred. 15 KARL B. TEGLAND, WASHINGTON PRACTICE: CIVILPROCEDURE § 53:28, at 450 (2d ed. 2009) (citing Or. Mut. Ins. Co. v. Barton, 109 Wn. App. 405, 36 P.3d 1065 (2001)). However, it goes on to note that it is probably necessary to simultaneously move to vacate under CR 60. 

### !d. This view on vacating is sharedbyDavid F. Herr et al.,

9No. 86130-7
Motions to Enforce Settlements: AnImportantProcedural Tool, 8AM. J. TRIAL ADVOC. 1 (1984-85), which suggests that a party should combine the motions to reinstate and enforce, due to the overlapping documents required. Id. at 3. Additionally, it states that a court may reopen a matter following dismissal on the basis ofits inherent authority, the interests of justice, and because a breach ofsettlement would be misconduct under Fed. R. Civ. P. 60(b)(3), or would be "any other reasonjustifyingrelief' under Fed. R. Civ. P. 60(b)(6). Id. at 4. Here, the trial court acted informally to enforce the settlement. Thebestpractice wouldhave been for the court, at the time ofthe settlement, to expressly retain jurisdiction for purposes ofenforcement or to enter a conditional or delayed dismissal. Since that did not occur, the parties could have movedto vacate the original dismissal under appropriate grounds and then made a motion to reinstate and enforce or commenced a new action for breach ofthe settlement. Assuming, however, that the process that the trial court followed was adequate, we nevertheless find the court improperly implied additional terms into the agreement, as discussed below. The trial court follows summaryjudgmentprocedures when a movingparty relies
on affidavits or declarations to showthat a settlement agreement is not genuinely disputed. 4 Brinkerhoff, 99 Wn. App. at 696; Lavigne v. Green, 106 Wn. App. 12, 16, 23

4Althoughthe Court ofAppeals has used an abuse ofdiscretion standard in the past when reviewing the enforcement ofa settlement agreement, its more recent rulings clarify that de novo review is appropriate. Brinkerhoff, 99 Wn. App. at 696; Lavigne, 106 Wn. App. at 16. As discussed in Brinkerhoff, summaryjudgmentprocedures are used in motions to enforce a settlement agreement. Brinkerhoff, 99 Wn. App. at 696. However, atrial court abuses its 10No. 86130-7
P.3d 515 (2001); Ferree, 71 Wn. App. at 43. "[T]heparty movingto enforce a settlement agreement carries the burden ofprovingthatthere is no genuine dispute overthe existence and material terms ofthe agreement." Brinkerhoff, 99 Wn. App. at 696-97 (citingFerree, 71 Wn. App. at 41). The parties' submissions must be read in the light most favorable to the nonmoving party in orderto determine whether reasonable minds couldreach only one conclusion. 

### Id. at 697. Becausethe proceedingto enforce a settlement is similarto a summaryjudgmentproceeding, we review the court's order de
novo. Id. at 696. Settlements are considered under the common law ofcontracts. Ferree, 71 Wn. App. at 39 (CR2A acts as a supplementbut does not supplantthe common law of contracts in settlements). Washington follows the objective manifestationtheory of contracts, which has us determine the intent oftheparties based on the objective manifestations ofthe agreement, rather than any unexpressed subjective intent ofthe parties. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). "Itis the duty ofthe courtto declare the meaning ofwhatis written, and not whatwas intendedto be written." J. W. SeaveyHop Corp. v. Pollock, 20 Wn.2d 337, 349, 147 P.2d 310 (1944). Determiningthe intent ofthe parties is paramountin settlements. See, e.g., Evans & Son, Inc. v. City ofYakima, 136 Wn. App. 471, 479, 149 P.3d 691 (2006) (holding thatthere was a genuine issue ofmaterial fact over whetherthe parties agreed on all material terms); see alsoNationwide Mut. Fire Ins. Co. v. Watson, 120
discretion ifthe nonmoving party raises a genuine issue ofmaterial fact and the trial court fails to hold an evidentiary hearing to resolve the disputed issues offact. !d. at 697. 11No. 86130-7
Wn.2d 178, 190, 840 P.2d 851 (1992) (considering whetherthere was mutual mistakeby the parties). However, "the subjective intent ofthe parties is generally irrelevant ifthe intent can be determined from the actual words used." Hearst, 154 Wn.2d at 504. These words are given their ordinary, usual, and popular meaning unless a contrary intent is shown from the entirety ofthe agreement. Id. Courts will notrevise a clear and unambiguous agreement or contract for parties or impose obligations that the parties did not assume for themselves. PugetSoundPower & Light Co. v. Shulman, 84 Wn.2d 433, 439, 526 P.2d 1210 (1974); Seattle-FirstNat'lBankv. Earl, 17 Wn. App. 830, 835, 565 P.2d 1215 (1977). Courts will also not imply obligations into contracts, absent legal necessity typically resulting from inadequate consideration. Oliver v. Flow Int'l Corp., 137 Wn. App. 655, 662, 155 P.3d 140 (2006) (citing as support Wood v. Lucy, LadyDuffGordon, 222 N.Y. 88, 118 N.E. 214 (1917), in whichthe Wood court implied an obligation upon the plaintiffto make reasonable efforts to marketthe defendant's goods under an exclusive licensing contract, where otherwise the defendant could have no compensation for agreeing to transfer herrights). Applying the principles ofcontract law to this settlement agreement, we conclude that the trial court erred by enforcing terms thatwere not implied withinthe agreement. Here, there is no indication in the record ortranscripts that the release agreement was intendedby the parties. Instead, the record suggests that the settlement consisted entirely ofFely's payment to Vanessa and dismissal ofthe dispute, which is sufficient consideration for an enforceable settlement. See Rogich v. Dressel, 45 Wn.2d 829, 843,

12No. 86130-7 278 P.2d 367 (1954) (stating that in a settlement, considerationtakes the form ofpayment and release ofclaims, acting as an accord and satisfaction); Nationwide, 120 Wn.2d at 195 ("A good faith settlement ofa dispute has been held to be sufficient consideration for
a compromise to settle that claim."). We cannotread the release proposedby Fely into this otherwise valid settlement agreementwhenthere is no evidence thatthe parties intended such terms. The trial court concluded the release was impliedby incorrectly interpreting an unpublished opinion from California, El-Fadly, 2005 WL 1503857, at *1. In El-Fadly, the parties entered into a signed settlement agreement that stipulatedthe defendant would prepare a "Settlement/ReleaseAgreement" to facilitate the terms. 

### ld. The release preparedby the defendant included language outside ofa general release, which the plaintiffthen objectedto. 

### ld. at *1-2. The Court ofAppeals consideredthe intent ofthe parties and determined that only a general release was contemplated, rather than the broader release that waived additional protected rights. 

### ld. at *3. Here, unlike in ElFadly, there is no evidence from the record thatthe parties agreed to the release proposed by Fely. Although the trial court improperly implied Fely's proposed release into the agreement, its inclinationto believe the parties intended a general release was correct because a dismissal withprejudice has the effect oflimiting future claims. However, the release the court deemed signed went far beyond the scope ofa release that is achieved through a dismissal with prejudice. For instance, the release stated:
.
13No. 86130-7 The undersigned, in consideration ofFARMERS INSURANCE COMPANY tendering the settlement check directly to releasor's attorney, without naming lien holders as payees, further hereby covenants to defend, to indemnify, and hold harmless FARMERS INSURANCE COMPANY, its attorneys, agents, employees and assigns from and against all such lien and subrogation claims, including all costs and attorney's fees incurred in the defense ofsuch claims. Clerk's Papers at 70. Yet there is no evidence from the record that these terms were contemplatedby the parties. When Vanessa agreed to dismiss her claims she only released Fely as to those claims, she did not agree to indemnify or hold Farmers harmless
as to any other claims. In so holding, we disagree with Fely's contentionthat the release she proposed
was implied and the burden was on Vanessato object. Indeed, it follows from case law that such a release must be expressly stated and not implied. See, e.g., Howard, 70 Wn. App. at 739 (trial court improperly enforced settlement where agreementpriorto settlement was notreached on hold harmless and release documents); Skiles v. Farmers Ins. Co., 61 Wn. App. 943, 945, 814 P.2d 666 (1991) (release and hold harmless agreement obtained as part ofa settlement); In reMarriage of Greenlee, 65 Wn. App. 703, 709, 829 P.2d 1120 (1992) (discussing ahold harmless provision within a settlement agreement). Both parties are seeking sanctions and attorney fees. Fely is requesting sanctions against Vanessa for citing to unpublished authority and citingto matters outside the record. In Vanessa's motion for discretionary review, she cited to an unpublished case, Thurston v. Godsil, No. 48959-3-1, 2003 WL 21690529 (Wash. Ct. App. July 21, 2003)

14No. 86130-7 (unpublished), in violation ofGR 14.1(a).5 Additionally, Vanessa also cited to an unpublished New York opinion, First UnitedMethodist Church v. Tot-Spot, Inc., 32 Misc. 3d 1242, 938 N.Y.S.2d 226 (Dist. Ct. 2011). GR 14.1(b) authorizes aparty to cite to unpublished opinions from otherjurisdictions ifcitation to the opinionwould be permitted in thejurisdiction ofthe issuing court. In New York, case law suggests unpublished opinions are entitled to respectful consideration, but are not binding precedent. Eaton v. Chahal, 146 Misc.2d 977, 983, 553 N.Y.S.2d 642 (1990). However,
even ifan unpublished case may be cited in anotherjurisdiction, GR 14.l(b) still requires the party to file and serve a copy ofthe opinion with the brief, which Vanessa did not do. Fely contends that Vanessa shouldbe sanctioned for herreliance on these cases, citing to Skamania County v. Woodall, 104 Wn. App. 525, 536 n.11, 16 P.3d 701 (2001), for the rule that "[u]npublished opinions have no precedential value and should notbe cited or relied upon in any manner." 6 To the extent Vanessa violated GR 14.1, we strongly disapprove but will not sanctionVanessa or her attorney as Fely requests. Rather, as the Court ofAppeals in Woodall admonished, we will not considerthe cases in violation ofthis rule. We also will not sanction Vanessa for referencing matters outside ofthe record, as Fely contends. While Vanessa does refer to Fely's insurance coverage

5 GR 14.1(a) states that "[a] party may not cite as an authority anunpublished opinion ofthe Court ofAppeals. Unpublished opinions ofthe Court ofAppeals are those opinions not published in the Washington Appellate Reports." 6 Although Fely claims in her briefthat the Woodall court sanctioned the party making the improper citation, this is inaccurate. The court only saidthatthe superior courtrelied heavily upon an unpublished opinion and stated the aforementioned rule thatunpublished opinions should not be relied upon. Woodall, 104 Wn. App. at 536 n.11. 15No. 86130-7 and the UIM claim, these matters are central to this case and are discussed in the record, including during settlement. Norwill we impose sanctions againstFely, as Vanessarequests. Vanessa argues that we should sanction Fely for bringing a claim that is notwell grounded in fact or warranted by existing law under CR 11(a). This is not the type ofmeritless appeal that requires sanctions. See Bryantv. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992) (stating that "[t]he purpose behind CR 11 is to deter baseless filings and to curb abuses ofthejudicial system," but "therule is not intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories"). Fely is requesting attorney fees under RAP 18.1, contending that Vanessa's appeal
was not based on law and facts and that the criteria for direct review are not satisfied. Since this court accepted review, Fely is not entitled to attorney fees. Vanessa also is not entitledto attorney fees under Olympic Steamship Co. v. CentennialInsurance Co., 117 Wn.2d 37, 53-54, 811 P.2d 673 (1991). In Colorado Structures, Inc. v. Insurance Co. ofthe West, 161 Wn.2d 577, 606-07, 167 PJd 1125 (2007), we agreed with the lower court's determination that Olympic Steamship applies when an insurer contests the meaning ofa contract, butnotwhen it contests other questions, including tort liability. See also McRory v. N. Ins. Co. of N.Y., 138Wn.2d 550, 555, 980 P.2d 736 (1999) ("We have declined to award fees under this exception where the case did not concern a coverage issue, butrather a dispute over the value ofthe claim after the insurer had accepted coverage."). Here, no party is contestingthe

16No. 86130-7 meaning ofthe insurance contract. Instead, there is only a question as to the terms ofthe settlement. CONCLUSION We hold that Vanessa Condon did not waive her rightto appeal by taking the settlement check. Additionally, we hold that the trial court erred when it implied and enforced additional terms that were not agreed to by the parties. We reverse the trial court. Sanctions and attorney fees will notbe imposed.

17No. 86130-7

WE CONCUR:

18