Beck v. Cianchetti, 81-1670

• Decision Date: 18 August 1982
• Docket Number: No. 81-1670,81-1670
• Citation: 439 N.E.2d 417,1 Ohio St.3d 231,1 OBR 253
• Parties: , 1 O.B.R. 253 BECK, Appellee, v. CIANCHETTI, Admr., Appellant.
• Court: Ohio Supreme Court

Page 231

1 Ohio St.3d 231

439 N.E.2d 417, 1 O.B.R. 253

BECK, Appellee, v. CIANCHETTI, Admr., Appellant.

No. 81-1670.

Supreme Court of Ohio.

Aug. 18, 1982.

Syllabus by the Court

1. R.C. 2307.32 requires that a release expressly designated by name or otherwise specifically identify or describe any tortfeasor to be discharged. The phrase "all other persons" is not sufficient to satisfy this statutory requirement.

2. Evid.R. 411 allows cross-examination on facts which may show bias, interest or prejudice of a witness, even though it may disclose the existence of liability insurance in a personal injury action.

On September 4, 1977, Lauren Beck, appellee herein, was involved in a car-motorcycle accident in Cuyahoga Falls, Ohio. Appellee was a passenger on a motorcycle driven by Michael D. Cotrufo. They were westbound and had stopped for a red light. Cotrufo waited in the inside lane and used his left turn signal because he intended to turn into a gas station. Facing Cotrufo, eastbound at the traffic light, was an automobile, in the inside lane, signaling to turn left.

After the light turned green and through traffic passed, Cotrufo started to turn left. As he began to enter the gas station driveway the rear portion of the motorcycle and appellee were struck by a car driven by John Cianchetti. Cianchetti's car had been in the inside lane behind the stationary left-turning vehicle, but pulled around it into the right lane and collided with the motorcycle.

As a result of the accident, Beck was hospitalized. In spite of four operations, she sustained permanent injuries. On January 9, 1979, she filed a complaint against John Cianchetti, the driver of the car which struck her. ¹ Because he died prior to trial, his father, Robert Cianchetti, administrator of his estate, was substituted and is the appellant, herein. ²

On March 17, 1978, Joseph Kozak, an insurance adjustor, representing Cotrufo presented a printed release form to Beck. The release reads as follows:

"KNOW ALL MEN BY THESE PRESENTS:

"That the Undersigned, being of lawful age, for the sole consideration of Twelve Thousand Five Hundred xx/100 Dollars ($12,500-)

to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does/ hereby and for my/our/its heirs, executors, administrators, successors and assigns release, acquit and forever discharge

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Michael D. Cotrufo

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and his, her, their, or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 4th day of Sept., 1977 at or near ___

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Cuyahoga Falls, Ohio

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"It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace.

"The undersigned hereby declare(s) and represent(s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned rely(ies) wholly upon the undersigned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.

"The undersigned further declare(s) and represent(s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital.

"THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT.

"Signed, sealed and delivered this 17th day of March, 1978.

"CAUTION: READ BEFORE SIGNING BELOW

"/s/ JOSEPH KOZAK

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/s/ LAUREN BECK, LS

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Witness

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LS

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Witness

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LS

Witness

"STATE OF ______

SS. [Received March 27, 1978]

"COUNTY OF ______

"On the _____ day of __________, 19__, before me personally appeared ___

to me known to be the person(s) named herein and who executed the foregoing Release and _______ acknowledged to me that _______ voluntarily executed the same. My term expires _______, 19__ ___"

Notary Public

According to Beck's affidavit, Kozak told her that "[b]y Ohio law, the maximum coverage on any motorcycle is $12,500 and there is no way legally that we could pay more." Furthermore, Beck asserts that she knowingly released Cotrufo but did not intend to release anyone else. She signed a release for $12,500, and her medical expenses as of that date totaled $12,628.

On January 25, 1979, John Cianchetti talked about the accident with Jon Sample, an investigator retained by his insurer. The telephone conversation was recorded and was offered in evidence by the defense because Cianchetti died prior to the trial. After the recorded statement was offered in evidence, counsel for Beck was denied the right to cross-examine Sample concerning his employment by Cianchetti's insurer.

A jury verdict in the Court of Common Pleas was in favor of the appellant. The Court of Appeals reversed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Nukes & Perantinides Co., L. P. A., Paul G. Perantinides and Elizabeth B. Manning, Akron, for appellee.

Buckingham, Doolittle & Burroughs Co., L. P. A., William M. Oldham and Seth A. Jacobs, Akron, for appellant.

I.

FRANK D. CELEBREZZE, Chief Justice.

The first question presented for our determination is whether the phrase "all other persons" interspersed with other language on the printed insurance form released an unnamed person.

Under common law, a general unqualified release executed in favor of one charged with a wrong extinguished the right of action against all those jointly liable for the same wrong. Whitt v. Hutchison (1975), 43 Ohio St.2d 53, 330 N.E.2d 678 . The injustices of this traditional rule were recognized and discussed in Whitt and this court concluded that the strict limitations had been largely abandoned and that Ohio courts "have established that the intention of the parties governs in interpretation of releases." Id. at 58, 330 N.E.2d 678. Thus, exceptions evolved in the common law which mitigated the harsh effects of releasing all tortfeasors.

The General Assembly considered the release of tortfeasors and enacted R.C. 2307.32 which became effective in 1976. That section provides in pertinent part that:

"(F) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

"(1) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms otherwise provide, but it reduces the claim against the other to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater;" ³

Apparently the General Assembly intended to change the common law; otherwise, there would have been no reason to enact the statute. The legislative mandate in R.C. 2307.32 abrogates the common law rule which provided that a release given to one tortfeasor was a release to all others (see Whitt, supra ) and often entrapped the average person into reasonably assuming that settling a claim with one person would have no effect upon rights against others with whom he did not deal. Instead, R.C. 2307.32 provides that a release to one tortfeasor does not discharge any other tortfeasor "unless its terms otherwise provide." The thrust of the section 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. Allowing a discharge based upon general language which does not name or identify a tortfeasor perpetuates the common law rule and is contrary to the statute.

The statutory phrase "unless its terms otherwise provide" requires a release to expressly designate by name or to otherwise specifically describe or identify any tortfeasor to be discharged. For example, a release could meet the statutory requirement by naming an individual or specifically identifying a tortfeasor such as stating the driver of the car which struck the motorcycle.

The operative language in the release in this case consists of a paragraph of verbiage including blanks to fill in the names of the parties to be released, the amount of the consideration and the date and location of the injury. The critical phrase "all other persons" was among other printed terminology. Beck was 19 years old at the time that she signed the release and did not have advice of counsel. ⁴

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...