Asare v. Hartford Fire Ins. Co.

• Decision Date: 13 December 1991
• Docket Number: No. D012739,D012739
• Citation: 2 Cal.Rptr.2d 452,1 Cal.App.4th 856
• Court: California Court of Appeals Court of Appeals
• Parties: Gus ASARE, Plaintiff and Appellant, v. HARTFORD FIRE INSURANCE COMPANY et al., Defendants and Respondents.

Page 452

2 Cal.Rptr.2d 452

1 Cal.App.4th 856

Gus ASARE, Plaintiff and Appellant, v. HARTFORD FIRE INSURANCE COMPANY et al., Defendants and Respondents.

No. D012739.

Court of Appeal, Fourth District, Division 1, California.

Dec. 13, 1991.

Certified for Partial Publication. ¹

Review Denied March 12, 1992.

[1 Cal.App.4th 860] Stephen J. Dimeff, San Diego, for plaintiff and appellant.

Kauff, McClain & McGuire, Maureen E. McClain and Robert S. Unger, San Francisco, for defendants and respondents.

Gibson, Dunn & Crutcher, David A. Cathcart, Pamela L. Hemminger and Eugene Scalia, Los Angeles, amicus curiae for defendants and respondents.

BENKE, Associate Justice.

In this case the trial court dismissed the plaintiff's discrimination lawsuit because the plaintiff had previously executed a workers' compensation release. We reverse because the record does not establish as a matter of law that the release covered plaintiff's discrimination claims. We also find plaintiff has the right to a jury trial on his claims.

FACTUAL AND PROCEDURAL SUMMARY

In this proceeding plaintiff Gus Asare is pursuing claims under the Fair Employment and Housing Act. (Gov.Code, § 12900 et seq.) Asare filed his discrimination complaint on June 4, 1987, and named Hartford Fire Insurance Company, three related entities and a co-employee as defendants. The defendants removed the case to the United States District Court for the Southern District of California because Asare had also made claims under Title VII of the Civil Rights Act of 1964, 42 United States Code section 2000e et seq. and the Civil Rights Act of 1866, 42 United States Code section 1981. The district court dismissed the federal claims and remanded the remaining state claims to the superior court.

Shortly after the case was remanded to the superior court, the defendants moved to strike Asare's demand for a jury trial. The trial court granted the motion and we denied Asare's petition for a writ of mandate.

In a separate proceeding Asare made a workers' compensation claim against Hartford Fire Insurance Company. On March 4, 1988, while his discrimination In exchange for the compromise and release, Hartford Fire Insurance Company and its workers' compensation carrier, Aetna Casualty & Surety Co., agreed to pay Asare $12,500. The compromise and release was approved by a workers' compensation judge on March 23, 1988.

                claims were pending in district court, Asare executed a document entitled "compromise and release."   The "compromise and release" was on a form provided by the Department of Industrial Relations and states in pertinent part:  "3. Upon approval of this compromise agreement by the Workers' Compensation Appeals Board or a workers' compensation judge and payment in accordance with the provisions hereof, said employee releases and forever discharges said employer and insurance carrier from all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury, including any and all liability of said employer and said insurance carrier and each of them to the dependents, heirs, executors, representatives, administrators or assigns of said employee."
                

Two years after the compromise and release was executed, two of the defendants in the instant discrimination case moved for summary judgment on the grounds the compromise and release released them for liability on the discrimination claims. The defendants' argument was contradicted by the attorney who had acted on Asare's behalf in negotiating execution of the compromise and release, Stanley L. Levine. Levine is a workers' compensation specialist and represented Asare in pursuing his workers' compensation claim. Susan England represented the Hartford Fire Insurance Company in the workers' compensation proceeding and, according to Levine, England was aware of Asare's discrimination claims. According to Levine, he and England had a conversation in which they both agreed the compromise and release would not be interpreted as a bar to Asare's discrimination claim.

According to England's deposition testimony, she does not recall discussing the scope of the compromise and release with Levine. When she was asked whether, in negotiating the compromise and release, she intended to dispose of Asare's discrimination claims, she was instructed by the defendants' attorney not to provide an answer. Neither Levine nor England have appeared as counsel in this proceeding.

According to Asare, in signing the compromise and release he relied on Levine's assurance the document would not affect his discrimination claims.

The trial court agreed with the defendants' interpretation of the compromise and release and entered a judgment dismissing Asare's discrimination claims. The court awarded the defendants their costs and $33,140 in attorney fees under the provisions of Government Code section 12965, subdivision (b).

Asare filed a timely notice of appeal from the judgment.

ISSUES PRESENTED

The fundamental issue presented by Asare's appeal is whether the compromise and release bars pursuit of his discrimination claim. We find no bar exists as a matter of law. As we explain in part I of our opinion, at best the defendants have presented a factual dispute which may turn on the relative credibility of Levine and England.

However, our resolution of the compromise and release issue does not dispose of all the matters raised by Asare's appeal. As we explain in part II of the opinion, the trial court erred in denying Asare a jury trial.

I

We begin consideration of the compromise and release by restating the now familiar principles which govern our review following entry of summary judgment: "The purpose of a summary judgment motion is to determine if there are any triable issues of material fact, or whether the moving party is entitled to judgment as a matter of law. [Citations.] The summary judgment is proper only if the affidavits in support of the moving party would be sufficient More particular principles which govern interpretation of the compromise and settlement were set forth by the Supreme Court in Pacific Gas & E. Co. v. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 39-40, 69 Cal.Rptr. 561, 442 P.2d 641: "Although extrinsic evidence is not admissible to add to, detract from, or vary the terms of a written contract, these terms must first be determined before it can be decided whether or not extrinsic evidence is being offered for a prohibited purpose. The fact that the terms of an instrument appear clear to a judge does not preclude the possibility that the parties chose the language of the instrument to express different terms. That possibility is not limited to contracts whose terms have acquired a particular meaning by trade usage, but exists whenever the parties understanding of the words used may have differed from the judge's understanding.

to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. [Citation.] The affidavits of the moving party are strictly construed, while those of the party opposing the motion are liberally construed. [Citations.] If the affidavits of the party opposing the motion contain factual averments within the general area of the issues framed by the pleadings, they are sufficient to make out a prima facie case. [Citation.] Any doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion. [Citations.]" (Cascade Gardens Homeowners Assn. v. McKellar & Associates (1987) 194 Cal.App.3d 1252, 1255-1256, 240 Cal.Rptr. 113.)

"Accordingly, rational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties. [Citations.] Such evidence includes testimony as to the 'circumstances surrounding the making of the agreement ... including the object, nature and subject matter of the writing ...' so that the court can 'place itself in the same situation in which the parties found themselves at the time of contracting.' [Citations.] If the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, 'is fairly susceptible of either one of the two interpretations contended for ...' [citations], extrinsic evidence relevant to prove either of such meanings is admissible." (Fns. omitted.)

Remembering all doubts must be resolved in Asare's favor, we find ample evidence in the record which supports Asare's contention the compromise and release was limited to his workers' compensation claims. In particular, we think it is significant the parties had separate counsel for each of their disputes, that the release here was negotiated by the parties' workers' compensation counsel and perhaps most importantly, although those lawyers were aware of the discrimination claims, no explicit reference to the discrimination claims appears in the release. ²

Indeed in remarkably similar circumstances, the court in Lopez v. Sikkema (1991) 229 Cal.App.3d 31, 38-39, 280 Cal.Rptr. 7 (Lopez ), recently stated: "If the mandatory compromise and release form executed by appellants was intended to cover claims which are not compensable under the workers' compensation act, it should have contained express language to that effect. Indeed, since the civil action was pending at the time the parties executed the compromise and release, the settlement document would be expected to recite that the release included the particular lawsuit. It does not. Absent such express language, we cannot say as a matter of law appellants released respondent from liability for civil damages by execution of the release form."

In short, there was substantial circumstantial evidence which supports admission of Levine's recollection of his conversation with England as to the limited scope of the release. Thus as in...