[¶ 1] Robert A. Freed appealed from a summary judgment dismissing his claim against Bobby M. Unruh for property damages resulting from a car accident. We conclude Freed’s settlement and release with Unruh’s insurer bars Freed’s action, and we affirm.
[¶2] On February 14, 1997, Freed’s car struck Unruh’s car when Unruh ran through a red light at a Bismarck intersection. Repair estimates for Freed’s 1996 Toyota Camry LE were $4,841.36. Freed was aware that, under N.D.C.C. § 39-05-17.2 and N.D.A.C. Chapter 37-09-01 as they existed at the time, he was required to complete a damage-disclosure statement before transferring title to his car because the car sustained more than $3,000 in body damage. Freed asked his insurer and Unruh’s insurer to pay him for the loss in value resulting from the collision and the damage-disclosure requirement, but both refused.
[¶ 3] Freed accepted a check for $4,841.36 from Unruh’s insurer. Attached to the check was a notation stating “full settlement, release and discharge of all claims of payee(s) for property damage only against Douglas & Bobby Unruh for accident of 02/14/97.” Freed did not have the car repaired, but decided to buy a different car. The car dealership Freed negotiated with told him they would trade him another 1996 Toyota Camry LE for his damaged car, the $4,841.36 insurance check, and an additional $3,500 in cash. Freed decided to trade for an older model 1994 car, agreeing to turn over his damaged car, the $4,841.36 insurance check, and an additional $2,000 in cash as payment.
[¶4] Freed sued Unruh in small claims court seeking $3,760 in damages. The amount Freed sought represented the additional $3,500 in cash he would have had to pay to get the same year model car as his damaged car, tax on that amount, licensure fees, and “[pjhotos and developing.” Freed alleged the damage to his car was “about $4,800.00” and acknowledged receipt of the insurance check, but sought the loss in the value of his car caused by the damage-disclosure requirement. In her answer, Unruh did not plead the release as an affirmative defense.
[IT 5] Unruh removed the case to district court and moved for summary judgment. The trial court granted the motion, noting if Freed had had the car repaired, it may well have been returned to its pre-accident condition, but by trading the car Freed suffered a loss in addition to the cost of repair because the diminution in value of the car exceeded the cost of repair. The court concluded Un-ruh was liable only to repair Freed’s car to the condition it was in immediately before the accident and “[tjhere is no proof that the $4,841.36 offered and accepted would not have done just that.” The court further concluded, assuming Freed had a choice of the measure of damages under N.D.C.C. § 32-03-09.1, “he could have rejected the offered settlement and brought action for the diminution in value. He chose not to do that.” Judgment was entered dismissing the action.
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[¶ 6] Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result.
Ohio Farmers Ins. Co. v. Dakota Agency,
[¶ 7] Freed asserts the trial court misinterpreted the applicable statutes in granting Unruh’s motion for summary judgment. However, we need not decide whether the trial court properly applied the statutes. Here, the trial court properly granted summary judgment in favor of Unruh because, as a matter of law, Freed was not entitled to any relief.
[¶ 8] Although Unruh failed to plead release as an affirmative defense under the requirements of N.D.R.Civ.P. 8(c), we have been liberal in allowing an amendment of the pleadings to conform to the evidence under N.D.R.Civ.P. 15(b).
E.g., First Nat. Bank of Belfield v. Burich,
[¶ 9] In this case, Unruh supported her motion for summary judgment with the attachment to the insurance check stating “full settlement, release and discharge of all claims of payee(s) for property damage only against Douglas & Bobby Unruh for accident of 02/14/97.” The trial court obviously considered the issue of release when it concluded if Freed “had a choice of the measure of damages, he could have rejected the offered settlement and brought action for the diminution in value. He chose not to do that.” We conclude the issue of the release was tried by the implied consent of the parties and Unruh’s failure to plead release as an affirmative defense does not preclude us from considering the issue.
[¶ 10] The release expressly settles all claims for “property damage” arising from ,the accident. This broad release covers what Freed seeks in this action — the loss in the value of his car allegedly caused by the damage-disclosure requirement. Even if Freed’s asserted loss were not considered “property damage,” allowing him to proceed with this lawsuit would be analogous to an improper splitting of a cause of action.
Compare Farmers Ins. Exchange v. Arlt,
[¶ 11] The summary judgment is affirmed.