53 N.C. App. 10 | N.C. Ct. App. | 1981
The sole question presented by this appeal is whether the court erred in entering summary judgment in favor of defendants. Plaintiff contends that a genuine issue of material fact exists as to whether the release was executed under circumstances amounting to mutual mistake. We agree.
In his depositions, plaintiff testified with regard to the release as follows:
It was my understanding that the limits of my brother’s insurance policy were being paid and was releasing my brother.
I am familiar with the standard release form, but one state is different from another state. I use a standard form in my work, but not like that.
I remember the man from my brother’s insurance company coming by. I had never seen him before. When he came by, he identified himself as an insurance adjuster. I knew that he was an insurance adjuster and that he represented my brother’s insurance company, Unigard.
Mr. Carter told me my brother’s limits were $25,000, and that he had these papers for me to sign. I said what are they. He said it is a release which releases your brother only. I*14 said, are you telling me the truth. He said, yes, that is all it is. I said, I can’t read this; I couldn’t even see it. He said it is just for your brother. I signed and released my brother.
He did not leave a copy of the release with me.
I did not have any difficulty writing my name. I could not see well enough with one eye to write my name. I can write like that without seeing at all. . . .
I did not ask Mr. Carter to read this release to me before I signed it. He did not offer to read it to me. My wife has never seen it before. She was in and out at the time. . . . I did tell him that I could not read it. He said it is just a release that releases your brother only and that is it. I accepted the $25,000 and cashed the check. . . .
I asked him if this releases anyone other than my brother. He said no, this is a release for your brother only. It was as simple as that. I said, are you telling me the truth, and he said yes. I said, I can’t read this. There is no way I can read it, and I can’t understand it if I did read it. He said, it releases your brother only. That was it, and I signed it for him.
Plaintiff’s wife, Jo Ann Peede, testified upon deposition as follows:
I am sure Warren could have read the release but there was no way; he hadn’t been reading the newspapers or anything. He hadn’t been able to just sit down and read something. . . .
He [Carter] stated that it released Ray [Linwood Ray Peede] only and his insurance company, that he didn’t have any authorization from anyone else, that he wasn’t representing anyone else, that it was just Ray.
*15 There was no discussion about anyone else being responsible or at fault. Neither the Barbours nor General Motors was mentioned. . . .
The insurance adjuster, J. Frank Carter, testified upon deposition as follows:
As senior adjuster with Unigard, I had occasion to investigate an accident involving Mr. Wesley Warren Peede which occurred June 16, 1976. Unigard insured Linwood Ray Peede who is Wesley’s brother.
I told him that I had authority to write him a check for $25,000, and take a release releasing Ray Peede and Unigard Insurance Group for this amount. Mr. Peede seemed to understand that was the limits of the policy and he accepted the settlement offer.
I had a form release for Mr. Peede to sign. The release was filled out prior to my going there. . . .
While I was at the house, Mr. Peede said he didn’t have any vision in his left eye because he didn’t have an eye. He had a little blurred vision in his right eye. . . .
At the time of the settlement of the claim, I was solely representing Unigard and Linwood Ray Peede.
At the time of the execution of the release, I told Mr. Peede and made it perfectly clear to Mr. Peede and his wife that this was releasing only Unigard and Linwood Ray Peede. That was my intent, and as far as I know, that was Mr. Peede’s intent.
I am sure that I told Mr. Peede that this would release his brother and Unigard Indemnity Company if he accepted the $25,000 and signed the release. My only intent was to release his brother and Unigard Insurance Group. ... It was my concern that day to pay the full Unigard coverage and get a release of Unigard and Unigard’s insured. . . .
*16 In addition, plaintiffs own affidavit contains the following:
[H]is [plaintiff’s] signing of the release would release only his brother, Linwood Ray Peede and Unigard Indemnity Co.; that it was further his understanding that the release did not release any other person or company.
That at the time of signing the release, plaintiff . . . was unable to read the release which he signed and relied wholly on Mr. Carter’s explanation to him as to what he was signing.
That at the time of the signing it was in fact his intent and [he] believed that it was the intent of Mr. Carter that he was releasing only his brother Linwood Ray Peede; and that the fact the words “all other tort feasors” in the fifth line of the release were not stricken was a mistake.
Furthermore, the affidavit of J. Frank Carter contains the following:
At the time of the execution, I made it clear to Mr. W. W. Peede that this was releasing only his brother and that this was the intent of both Mr. W. W. Peede and myself when the release was executed.
The words “all other” tort feasors in the fifth line was mistakenly left in and included in the release.
In Cunningham v. Brown, 51 N.C. App. 264, 276 S.E. 2d 718 (1981), after an accident in which a vehicle driven by the defendant collided with a motorcycle ridden by the plaintiffs, the plaintiff-wife gave a release to plaintiff-husband’s automobile liability insurer which contained the following language:
release and forever discharge LANCE CUNNINGHAM [plaintiff-husband] and any other person, firm, or corporation charged or chargeable with responsibility or liability . . . from any and all claims . . . loss or damages of any kind already sustained or that [she] may hereafter sustain in consequence of [the accident].
The defendant sought and obtained summary judgment in her favor on the basis of the above-quoted language. This Court, after stating that nothing else appearing, the quoted language would release all other entities involved in the accident, said that the
The facts alleged in plaintiff-wife’s affidavit would permit a finding that she and the adjuster agreed and intended to release only plaintiff-husband. The document signed contained language contrary to this mutual agreement and intention in that by its terms it released other joint tortfeasors as well as plaintiff-husband. It therefore failed to achieve the result which could be found to have been agreed to and intended by both parties. . . . Thus, the failure to accomplish the result intended by both parties here could be found to constitute a mutual mistake of fact which would permit reformation of the document, [footnote omitted]
Id. at 273-74, 276 S.E. 2d at 726. This Court held that the plaintiff-wife’s affidavit raised genuine issues of fact as to whether the release was executed under circumstances amounting to mutual mistake, and that the trial court erred in entering summary judgment for the defendant.
We hold that the present case is controlled by Cunningham v. Brown, supra. The materials offered by plaintiff in opposition to defendants’ motions for summary judgment clearly raise a genuine issue of material fact as to whether plaintiff and Carter, the adjuster for Unigard, intended to release only Linwood Peede and Unigard Indemnity Company and thus made a mutual mistake of fact in executing a release that by its terms released all joint tort-feasors.
We note, in addition, that plaintiff had sued defendant GMC for breach of warranty as well as in tort. Defendant GMC moved for summary judgment on the ground that the provisions of the release absolved them from liability to plaintiff; the provisions of the release, however, would not apply to plaintiffs claim under breach of warranty.
We therefore conclude that the trial court erred in entering summary judgment in favor of defendants. The order granting defendants’ motions for summary judgment, denying plaintiffs motion for summary judgment, and dismissing plaintiffs action is
Reversed and remanded.