Arlene Delores Smith, Executrix of the Estate of William D. Smith v. Larry Withrow
| Decision Date | 30 December 1991 |
| Docket Number | CA90-12-234,91-LW-5164 |
| Parties | ARLENE DELORES SMITH, Executrix of the Estate of William D. Smith, Plaintiff-Appellant v. LARRY WITHROW, Defendant-Appellee CASE |
| Court | Ohio Court of Appeals |
Baden Jones & Scheper Co., L.P.A., Jack C. McGowan, 246 High Street, Hamilton, Ohio 45011, for plaintiff-appellant.
Cash Cash, Eagen & Kessel, Robert B. Cash, 1000 Tri-State Building, 432 Walnut Street, Cincinnati, Ohio 45202, for defendant-appellee.
Plaintiff-appellant, Arlene Delores Smith, executrix of the estate of William D. Smith, appeals a decision of the Butler County Court of Common Pleas granting summary judgment to defendant-appellee, Larry Withrow.
Appellant's husband, William D. Smith, died as a result of an automobile accident which occurred on November 25, 1985 on State Route 747 in Butler County. Smith's automobile collided head on with a vehicle occupied by Ruth Darlene Taylor and her daughter, Kimberly Taylor. The Taylors filed suit against appellant on June 12, 1987. Appellee was not named as a party. That suit was resolved when the parties entered into a settlement in June 1990. After receiving payment, the Taylors executed a general release which stated that they released appellant, her insurance company, and "any and all persons, firms or corporations * * * "from any claims arising from the accident."
On March 6, 1990, appellant filed a complaint for contribution and indemnification against appellee. In her complaint, she alleged that appellee had failed to yield the right-of-way when he turned onto Route 747 from Princeton Road and had failed to permit an overtaking vehicle to pass, causing the accident between Smith and the Taylors.
On May 1, 1990, appellee filed a motion for summary judgment, arguing that because he was not specifically named in the release executed by the Taylors, his liability was not extinguished by the settlement. Therefore, he was not liable for contribution. Appellant responded by filing the affidavit of Anthony Castelli, who represented the Taylors in the prior suit. In his affidavit, Castelli discussed receiving an offer of settlement from appellant. Castelli went on to state:
The offer to settle was premised on the execution of a full and complete release of all claims against all parties by the Taylors and in accepting the offer in settlement, it was the intent of my clients to grant a full and complete release to Arlene Delores Smith, executrix of the estate of William D. Smith, without reservation as to any other party, and specifically without reservation as to Larry Withrow.
The trial court granted summary judgment to appellee. In so doing, it specifically stated that the "affidavit of attorney Castelli is of NO help to (appellant) since the release executed controls, not intent." This appeal followed.
In her sole assignment of error, appellant states that the trial court erred in granting appellee's motion for summary judgment. Under this assignment of error, appellant sets forth three issues for review. We find that there is no merit to the issues presented for review and conclude that appellant's assignment of error is not well-taken.
Under her first issue for review, appellant argues that the trial court should have considered Castelli's affidavit in ascertaining the intent of the parties instead of looking only at the language of the release. Under her second issue for review, appellant argues that Ohio's contribution statutes do not bar an action for contribution simply because a general release in favor of one tortfeasor does not expressly designate release of the other tortfeasor, especially where the other tortfeasor's liability has been extinguished by the applicable statute of limitations. Because these two issues are interrelated, we will consider them together.
We begin by noting that appellee relies on the parol evidence rule, arguing that the trial court did not err in failing to consider Castelli's affidavit because is was extrinsic evidence used to contradict or vary the unambiguous terms of a written instrument. However, the Ohio Supreme Court has held that the parol evidence rule only applies in an action between the parties to an instrument and those claiming under them. Parol evidence, when otherwise competent, is admissible in controversies between strangers to the instrument and between "a stranger and a party thereto." Bowman v. Tax Commission of Ohio (1939), 135 Ohio St. 295, paragraph one of the syllabus. Other jurisdictions have applied this same conclusion in cases involving releases in various contexts. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc. (1971), 401 U.S. 321, 91 S. Ct. 795; Lemke v. Sears, Roebuck & Co. (C.A.4, 1988), 853 F. 2d 253; Cleveland v. The Cleveland Electric Illuminating Co. (N.D. Ohio 1980), 538 F. Supp. 1287; Gosse v. Swedish Hospital (1971), 4 Wash. App. 574; Cranford v. McNiece (1969), 252 Or. 446; Smith v. Conn (Iowa 1968) 163 N.W. 2d 407.
However, Bowman specifically states that parol evidence is admissible if it is otherwise competent. We conclude that the trial court did not err in failing to consider Castelli's affidavit because under the contribution statutes it was irrelevant to the determination of the issues presented in the case.
Ohio's statutes regarding contribution among joint tortfeasors, R.C. 2307.31 et seq., are an "all but verbatim copy" of the Uniform Contribution Among Tortfeasors Act adopted in many other jurisdictions. Browne, Contribution Among Tortfeasors: A Comment on Amended Ohio House Bill 531 (1976), 25 Cleve. St. L. Rev. 151, 152. R.C. 2307.31(B) provides:
A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or loss to person or property or the wrongful death is not extinguished by the settlement, or in respect to any amount paid in a settlement which is in excess of what is reasonable. (Emphasis added.)
R.C. 2307.32(F) further provides:
Both parties rely on Beck v. Cianchetti (1982), 1 Ohio St. 3d 231. In Beck, at paragraph one of the syllabus, the Ohio Supreme Court held that In that case, Lauren Beck was a passenger on a motorcycle driven by Michael Cotrufo. The motorcycle was involved in an accident with a car driven by John Cianchetti. A few months later, Beck signed a preprinted release form presented by an insurance adjuster representing Cotrufo. The release stated that Beck released Cotrufo and "all other persons * * *" from any and all claims associated with the accident. Beck later filed suit against Cianchetti seeking to recover damages for her permanent injuries. She presented an affidavit stating that she knowingly released Cotrufo, but she did not intend to release anyone else. The trial court found in favor of Beck; the court of appeals reversed the trial court. The Ohio Supreme Court reversed the decision of the court of appeals.
The supreme court ruled that R.C. 2307.32 changed the common law rule that a general unqualified release in favor of one tortfeasor extinguished the right of action against all those jointly liable for the same wrong. Id. at 234. It stated that the thrust of R.C. 2307.32 is to "retain the liability of tortfeasors and, thus, the phrase `unless its terms otherwise provide' should be narrowly construed and require a degree of specificity." Therefore, the statutory phrase requires a release to expressly designate by name or to otherwise specifically describe or identify any tortfeasor to be discharged. Id. at 234-235. Applying this reasoning, the court noted that Beck was nineteen years old at the time she signed the release and did not have the advice of counsel. The court went on to state:
In evaluating this release, we must consider the relative position of the parties involved. The insurance company prepared the release and presented the form to the injured party, who was unfamiliar with the terminology found in the standard release, and unaware of the legal implications. Therefore, the General Assembly recognizing that unsuspecting injured parties often sign such releases, decided the release of one tortfeasor does not release other tortfeasors, "unless its terms otherwise provide." Consequently, the insurance company has the burden of showing that the injured party understood the terminology and intended the release of the unnamed tortfeasors.
Appellant contends that the result in Beck turned upon the intent of the persons signing the release, as does the present case. Therefore, appellant argues that the affidavit of Castelli was clearly relevant to determine the intent of the Taylors at the time they signed the release. Appellee, on the other hand, argues that the outside evidence considered in Beck related only to the legal relations between the parties. The evidence did not go to the interpretation of the specific wording of the release under consideration and did not change the court's application of the law.
The problem in the present case lies in the fact that Beck presents a somewhat different situation...
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