*1
HANSON,
MAY
ETHEL
Aрpellant,
Plaintiff
OLJAR
Insurance
Farm Mutual
Automobile
Respondents.
Company,
Defendants
No. 87-360.
Feb.
Submitted on Briefs
Decided March
Allen L. Moore, Rice, Manos, Christopher Refling, O’Connell & L. Boze- man, respondents. for defendants and Opinion
MR. JUSTICE GULBRANDSON delivered the Court. *2 appeals Eighteenth judg-
Ethel Hanson an Judicial District Court Mary Oljar ment favor of and State Farm Mutual Automobile Company. Insurance The District Court found that Hanson Ethel had executed a relating valid release of all claims to an automobile accident and that she was bound the settlement teftns. We affirm. (Hanson) Mary
Ethel Hanson Oljar (Oljar) and were involved an Bozeman, Montana, 8, automobile May Oljar’s accident on 1985. vehicle struck Hanson’s vehicle stopped while Hanson was at an in- tersection. Both were insured State Farm Mutual Auto- (State Farm). mobile Company Insurance An adjuster for State Farm, (Brown), investigated Richard Brown the accident deter- Oljar mined that was report at fault. Brown also obtained a medical from Hanson’s doctor permanent which listed Hanson’s disabilities from the accident as “undetermined at this time.” Brown did not discuss the report with Hanson.
After negotiations Hanson, Farm, several with through State its adjuster, paid $4,362.85 expenses, Hanson wages,' for medical lost costs, headaches, car rental and inconvenience. In return for the set- payments, tlement liability State general Farm obtained a from husband, Hanson, 9, Ethel Hanson July and her Ben on July 15, 1985, On you express Hanson sent a thank note to Brown to pleased that she was prompt with Brown’s “settlement and service settlement, Unknown to State Farm at the time of Hanson had attorney May retained a Bozeman represent on her with — regard to two May automobile accidents 1985accident February earlier accident in 1985. Hanson did not tell adjuster Farm attorney attorney about her nor did contact State Farm representation. about the July 18, 1985,
On copy Hanson visited her doctor and received report same medical sent to Hanson the medical Brown. took attorney to her him received a informed that she had settlement signed day, and had a release. That same Hanson’s attor- ney deposited $1,010.40 in payable a Bozeman bank to State Farm
and sent Payment State Farm a entitled document “Tender Rescission of accept Release.” State Farm refused to the tender of payment. 14, 1986, April On filed Hanson this lawsuit for rescission damages. release and non-jury April
The District Court held a trial on 1987. Thereaf- ter, the following findings District Court made of fact: Brown, Farm,
“1. adjuster Richard with defendant State inves- tigated plaintiffs July claim of
“2. Oljar Both Mrs. Hanson and Mrs. were insured defendant company. investigation Oljar Brown’s revealed that Mrs. was at fault in the automobile collision. bills,
“3. Mr. prop- Brown informed medical income lost erty damage by plaintiff. incurred
“4. plaintiff Brown payments talked with about medical and lost payment income. He authorized an advance on June $678.23 paid wages 1985. Brown advances on and medical bills when presented by plaintiff. presented. No other were bills plaintiff
“5. Brown and four or times talked about five about the matter. July
“6. On Brown secured and her husband $4,362.85. a release of all payment claims for the The document *3 signed was at the Hanson residence. Brown car issued drafts for re- pair, $1,010.40. car rental plаintiff and draft to for '“7. Brown report plaintiff’s had seen a prior medical on condition to obtaining July 9, on meeting, pay
“8. At agreed plaintiff’s this Brown to for car rental expenses property damage. outstanding There were no medical bills.
“9. Brown report plaintiff did not show the and does medical to the not know if he discussed it her. with plaintiff’s
“10. The discussed heаdaches and inconvenience. $700; plaintiff’s Brown offered $1000. counteroffer was Brown except claimed that complete’ the release was ‘final and for addi- expenses tional up days for from the date of to $3000 agreement. “11. being Brown gave policy no itemization as to which as- plaintiff’s payments sessed damages, for all but Brown authorized be Oljar policy. made under the Hanson, plaintiff’s husband, July
“12. Ben on testified that paid he plaintiff no and Mr. attention the conversation between renting Brown. problems He did hear due a car. ‘inconvenience’ Mr. suggested agreed. Hanson $1000 and Brown Mr. Hanson does problems. remember reference to medical Mr. Hanson did misrepre- realize that the release was ‘final’ and claims Brown sented that it was not final.
“13. Mr. Hanson claims that driving, he has do most of the his wife is afraid of another collision.
“14. Mr. Hanson Brown admitted that said other medical bills paid could be under the release.
“15. Plaintiff testified that she had two accidents 1985. The acci- question dent in was the second accident.
“16. Plaintiff personаl injuries only retained Mr. for McAlear on May represented
“17. Mr. plaintiff McAlear also on the first accident personal recovered a injuries. settlement Plaintiff settled her property own damage claim.
“18. Plaintiff any report Heetderks, had not seen Dr. from her family physician.
“19. Plaintiff denies that example, the release was final. For she remеmbers her husband told Brown that the future was uncertain plaintiff’s injuries.
“20. Plaintiff received the July Heetderks on immediately took it to Mr. McAlear.
“21. Mr. McAlear thereafter tendered back the sum of $1010.40 deposited interest-bearing same in an account at First Se- curity Bank.
“22. Plaintiff claims kept that she suffered headaches which her night. awake at She has a fear having another accident. “23. Plaintiff admits that she told no one that Mr. McAlear had been retained concerning Oljar accident. received,
“24. Plaintiff admits having different drafts Brown.
“25. Plaintiff physician has not sign- seen a for her headaches after ing the release form. Except
“26. accidents, for the two 1985 has had no deal- ings with the adjuster. insurance
“27. After the signed, plaintiff you release was wrоte a note’ ‘thank to Mr. Brown.
“28. Brown anyone had no communication with but until July the meeting.
“29. Plaintiff express any did not confusion form.”
276 fact, following findings From Court made the these District conclusions of law: parties en- unambiguous.
“1. The form is clear and The release is gaged negotiations to final sum. Plaintiff bound as guilty adjuster was not terms of the settlement. Defendant’s complaint. impropriety. nothing her Plaintiff shall take “2. costs.” Defendant is awarded appeal: following on
Hanson raises the issues (1) rule on construction adopted Has Montana the modern liberal personal injury single party a case? releases on (2) determining or a whether What factors should court consider set aside? a release should be briefs, appeal: on identify following issuе From Hanson’s we a full and alleged be Can Ethel Hanson’s intent that nullify The District Court’s final settlement the release? serve undisputed appeal. determine findings of fact on this We must are credible from the of this whether there is substantial record case In support findings evidencé Court’s and conclusions. District 230, (Mont. 1986), 287,] re the B.T. P.2d matter Mont. 725 [223 232, 1728, St.Rep. 43 The District will not be reversed Court represent clearly an abuse of findings unless the are erroneous and (Mont. 1986), Larson Walker v. 52(a), M.R.Civ.P.; discretion. Rule 1321, 1322-23, St.Rep. 333,] Mont. 727 P.2d [223 urges adopt Hanson a “liberal rule construction” this Court to in- regarding rule” from strained releases. derives this “liberal She terpretations regarding argue that of several cases releases requests that we intent was not a finаl Hanson to make settlement. rescinded. that the release should be examine her intent conclude that we must previous is of this Court It clear decisions apply validity of release such determine the law contracts to v. Insurance Co. Motors presented as this case. Westfall subject is ... 140 Mont. 374 P.2d 98-99. release “[A] Westfall, recession other contracts.” for the same reasons as fraud, through mutual Accordingly, P.2d at 98-99. a release obtained mistake, under inadequate or with be rescinded consideration (Mont. 1981), [__ Krusemark Hansen proper circumstances. Westfall, 598; Mont. __,] St.Rep. 627 P.2d to show that P.2d of this case at 99. No evidence exists the record mistake, fraudulently, through mutual the release was entered into argue the Hanson declines to adequate or without consideration. only saying rescinding available theories for contract
277 such principles theories are reversions to outdated of law that do not apply to this case. authority
Hanson’s regarding the so-called “liberal rule” of inter- preting support position. releases does not These cases for stand general proposition that the intent of releasor at the time of the may be considered as a whether factor to determine a release injured party thereby of one tort-feasor releases all concurrent Burlington Northern, Kussler v. e.g., tort-feasors. Inc. (1980), See 82, 88, 522-23; McCloskey v. Porter (1973), Mont. 606 P.2d 161 Mont. рresented 506 P.2d This Court is not with an issue this might case to which the above-stated rule apply. intent, Brown,
Hanson’s Oljar, Farm, unknown to or State can change this case. Richardson the obvious intent of the release Ins. Co. America 206 Mont. 669 P.2d Safeco 1515, 1517. St.Rep. Although the record indicates that Han son problems have injuries some or related to the automobilе accident for might compensated, which she not have been her “la tent discontent with the grounds release cannot be for alteration of express” agreement McCloskey, [an] to settle with State Farm. P.2d at 849-50.
There is substantial support credible evidence in the record to the District findings Court’s negotiated and conclusions. Hanson with State Fаrm over the terms signed of the settlement “Agreement and discharging Oljar Release” and State Farm “from claims, demands, all damages, actions, causes of action or suits of any kind or nature whatsoever . . . injuries, all known and un [for] known terms . . .” correctly The District Court concluded that agreement terms of the unambiguous release were clear and that Hаnson was bound those terms.
Affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. HARRI- JUSTICES SON, WEBER and McDONOUGH concur. SHEEHY,
MR. JUSTICE dissenting: I decidedly minority dissent foregoing Opinion, from the which is a view of passed upon question the courts which have here presented. important, stop
Just as opportunity we should take what is this apparently dastardly Farm, is, practice by procuring State purport be final releases which its Montana insureds
form, for next six for bills incurred but which allow months, $3,000 total, deny but the insureds exceeding pain suffering permanent right or or further to recover either harm as shown the future bills. pointedly, acquired without discus-
Most Farm this release given explain meaning of the release either sion to its insured to application injuries, of the future medical to the unknown or benefits.
Finаlly, majority has or chosen not to discuss overlooked obtaining *6 adjuster here a doctor’s con- ramifications of the doctor, disclosing to the in- cerning the her and never insured from prior obtaining sig- sured contained to what that doctor’s nature on the release. injured party, presents a the insurer
When an insurer release to an duty, injuries, if has a а reference to unknown the release contains proposed to explain particularly significance that clause the to the of releasee:" only injuries, is to given
“Where a release with reference known subsequently develops injury existed a substantial then it that consideration, parties which not taken into was unknown to the grounds thе a mutual mistake. be avoided on of clause, not the This though is true the instrument contains a even subject express bargaining, apply to un- that the release shall all of unanticipated person, injuries. injured known an not Where injury, signed re- knowing that certain a the accident had caused a injury, by person causing lease the tendered the insurer of thе which related unknown to the the release contained a clause releasor might de- injuries to unknown and to conditions which thereafter If velop, injuries. the binding as the unknown release not to of not know person who the release did sign induced the releasor presented a mutual relating injuries, the case clause unknown sign- person of And if who tеndered the release mistake fact. of not aware ing releasor was knew of the clause and knew clause, of duty he a of the existence had inform the releasor the clause.” Release, 694, 694, 695,
66 Am.Jur.2d Section Northern, (1980), 82, 606 Burlington Inc. Kussler v. In 186 Mont. 307, 506 P.2d McCloskey Porter P.2d 161 Mont. 520 and parties release by as to the governed wé were the intent of the is obtainеd reaching every in In release our decisions. case where a injuries, an intent is insurer which contains reference unknown issue, specifically court must make a and one which the so, finding. any Although may, a releasee if he intends to do release rights by any respecting injuries, future he should not be bound re- away signs rights lease which those future without discussion or mаjority without the intent of the That is the view: releasee. noted, previously essentially authority “As lines of there are two developed jurisdictions. which have in around similar cases other minority The jurisdictions typified by line followed a is small Bottling Company, Wheeler v. Rock White Oregon case of (1961). Wheeler, Or. In P.2d the court adhered to tradi- conceptions law, regarding binding tional a contract and held upon pregnant subsequently injuries. woman with discovered back directly point While this case is as the that case pain physician may was aware of back thought some which her have pregnancy originated, it dogmatic does illuminate the inflexible and approach of validity some courts. In their сonsiderations waivers, general liability jurisdictions appear these not to differenti- applicable ate between standards to commercial transactions peculiar personal those injuries. generally, See Annot. Section (1960). 71 A.L.R.2d 167-69
“The overwhelming better adopted majority reasoned rule jurisdictions permits avoidance a release circumstances injuries where later clearly contemplated by discovered were reasonably at the time release. A succinct statement of authority this line Supreme is set forth the California Court in *7 Proctor, Casey 112-113, 59 Cal.Rptr. Cal.2d 28 378 P.2d (1963): 579 “ ipso majority rule, however, may ‘Under the a release facto upon ground be avoided injuriеs. the of later discovered The essence conclusive; of the rule the wording is that release it is a of the is not question actually of intended fact whether the to a ” discharge liability such . . .’ Finch v. Carlton (1974), 84 Wash.2d P.2d in Ranta v. Rake Idaho,
We should look our of sister state which 747, pointed pol- Idaho P.2d out the liberal that icy of avoiding injuries guided is releases whеre there are unknown by the following factors:
“(a)
peculiar dignity
person
the
accords the
as dis-
the law
human
tinguished
(b)
commerce;
very
possibility
from articles of
the
real
of
being
long range
damage
mistaken
to human
the
effects of
(c)
tissue;
inequality
bargaining positions
the
of the
of the con-
(d)
and,
parties;
of
tracting
the amount
consideration received com-
pared
injuries.”
of
to the risk of the existence
unknown
In
State
addition to the
the
of
added
haste,
thereof,
which
obtained.
the
or lack
with
the release was
Finch,
Moreover, attention to the of release we should direct our kind by in this case where that was taken State Farm case. This was a responsible party, represented State Farm as insurer both the Mary party, operat- Oljar, injured the Ethel Hanson. Each were by ing at time State Farm Mu- automobiles which were insured duty A in special tual that situation devolved Automobile Insurance. equitable handling in of upon fair its State Farm to be in its It not disclosed the record claims as between two insureds. is provided by Ethel Hanson in this case cover- whether the car driven coverages, payments age, separate other for medical from the operation If persons injured those in the the Hanson automobile. did, repre- by Farm even more it the form of release taken State was in Ethel Hanson is shown copyA release taken from hensible. of the in will seen thаt addi- the exhibit attached to this Dissent. It be release, paid by tion Farm under the term the to the monies State in printed in State there schedule of benefits which addition a $3,000 medical, pay for agreed Farm amount not to exceed six the releasee within surgical dental or treatment furnished to agreement, as result of the acci- following months date In any source. described, expenses paid by collateral excluding dent Farm, report, case, being possession this of the doctor’s by it, Hanson, possession the release being Ethel tendered insurance essentially accident including it what is a health and form is The evil providing form for future medical benefits. $3,000 up future for though that have recovеred the releasee holding preclude, expenses, would recovery perma- here, preclude, majority does further damages pain injuries, suffering nent or other elements Absolutely might virtue of the accident. accrue to the releasee pointed or was discussed nothing about this feature of the release re- such a proсurement If adjuster out to Ethel Hanson. it Farm, printed form indicates practice lease is a of State and the Is, practice right now. this Court should condemn that I present of the evidence.
I state would reverse this case under *8 would proceedings remand it to the District for further de- Court signed, termine the intent the releasee at the time the release was recognize only extent. MR. foregoing JUSTICE HUNT concurs dissent.