Bennett v. Shinoda Floral, Inc., 14855-9-I

• Decision Date: 23 April 1986
• Docket Number: No. 14855-9-I,14855-9-I
• Citation: 717 P.2d 1379,43 Wn.App. 504
• Parties: James E. BENNETT, Appellant, v. SHINODA FLORAL, INC., and George A. Wasilche, Respondents.
• Court: Washington Court of Appeals

Page 504

43 Wn.App. 504

717 P.2d 1379

James E. BENNETT, Appellant, v. SHINODA FLORAL, INC., and George A. Wasilche, Respondents.

No. 14855-9-I.

Court of Appeals of Washington Division 1.

April 23, 1986.

Davies, Roberts, Reid, Anderson & Wacker, Denny Anderson, Seattle, for James E. Bennett.

Lee, Smart, Cook, Martin & Patterson, Eugene Bolin, Seattle, for Shinoda Floral, Inc. and George A. Wasilche.

JOHN W. SCHUMACHER, Judge Pro Tem. ¹

James Bennett brought this damage action against George Wasilche and Shinoda Floral, Inc. for injuries received in an automobile collision. The trial court granted a defense motion for summary judgment and dismissed the action because Bennett had signed a release of all claims. Bennett appeals.

On August 23, 1982, Bennett was driving his automobile when it was struck from the rear by a Shinoda Floral truck driven by Wasilche in the course of his employment. Almost immediately, Bennett felt back pain and, on the same day, consulted Dr. L.C. Hoover who had treated him in the past. Dr. Hoover found "interspinous ligament tenderness in the dorsal, lumbar and sacral portions of [Bennett's] back" and concluded that he had a back sprain. He informed Bennett, and Bennett believed, that his back injury would heal within a reasonable time period so that he could go back to work.

About two weeks later, Floyd Barker, a claims adjuster for Aetna Casualty & Surety Company, met with Bennett. The outcome of this meeting was Barker's assurance that Aetna would pay Bennett's lost wages and medical expenses pending his return to work.

During the fall of 1982, Bennett consulted Dr. Hoover periodically, but continued to have problems with his back so that the date of his expected return to work remained uncertain. In October, 1982, Barker obtained a written report from Dr. Hoover stating that Bennett's prognosis and the date he could return to work remained undetermined. In the first part of December, 1982, Barker informed Bennett that Aetna was terminating any further wage loss payments and would like to settle his claim. Barker offered Bennett a final payment of $5,000 and informed him that this was all the insurance company would pay.

At the time of the collision, Bennett was 56 years old and had been a truck driver for Safeway Stores since 1958. His prior employment consisted of manual labor and cooking in the United States Navy. His formal education had ended at about the tenth grade, and he had received no technical training. Except for a divorce many years before, Bennett had never consulted an attorney and had never been involved in a contested claim. In the course of his years as a truck driver, Bennett had experienced numerous episodes of back pain and problems for which he had received treatment. He had always recovered and returned to work within a relatively short period of time.

Bennett discussed Aetna's $5,000 offer with his wife. At that time, they were receiving no income from his employment and had savings of about $100. Bennett was anticipating the receipt of vacation pay from his employer in January, 1983. Believing that the $5,000 from Aetna together with the vacation pay would satisfy their requirements until he could go back to work, Bennett and his wife decided to accept the offer. On December 6, 1982, the same day the settlement offer was made, and without further negotiation, Bennett accepted Aetna's offer and signed a written release "of all claims of every nature and kind whatsoever ... known and unknown, suspected and unsuspected." The total amount paid to Bennett by Aetna for lost wages, medical expense and final settlement was $13,487.76.

In early 1983, Bennett's back condition worsened. Dr. Hoover eventually concluded that the collision had caused a "herniated intravertebral disc in [Bennett's] low back ... a different and much more serious condition than the sprain which was originally diagnosed." In March, 1984, Dr. James Mowry examined Bennett and reported:

I think Mr. Bennett's primary diagnosis is degenerative disc disease of the lumbar spine. It has been slowly progressive for many years, and its development has been the result of innumerable injuries, as described above. The violence of his most recent injury, that being the motor vehicle accident, finally produced enough symptomatology to prevent his returning to work.

* * *

It is often difficult to predict the course of low back injuries. It is now clear that Mr. Bennett has sustained injuries and symptoms therefrom arising out of the August, 1982 accident. The nature and extent of his injuries as well as their permanence were not readily apparent in December, 1982, when, I understand it, Mr. Bennett signed a release. I believe it would not have been unreasonable for Mr. Bennett to have believed in December, 1982, that he would recover and be able to return to work. It is also apparent, now, that he has sustained permanent injuries as a result of the accident and some components of his symptomalogy have developed since December, 1982. In particular the radiating pain in his legs is a significant form of injury which was not known by either Dr. Hoover or Mr. Bennett in December, 1982. The radiating pain is likely to be connected with injury to one or more discs in Mr. Bennett's lower spine and, as indicated, the possibility of disc injury was not apparent in December, 1982.

Many patients who are involved in automobile accidents experience sometimes disabling symptoms for some period of time before they improve. In some instances there is improvement and in other instances the symptoms can remain severe and, as happened in Mr. Bennett's case, permanent. Given his history of prior back problems and successful recovery from them, it would not have been reasonable or possible to have predicted the course of his injuries in December, 1982. It was only after he continued to have symptoms, and developed new components to his injury, during 1983, that one could finally make a prognosis of permanent disability as have both I and Dr. Hoover.

One reason for difficulty in making a precise diagnosis of long-term injury with patients having back problems is that some of the components of the injury are not "objectively" verifiable. There are tendons, ligaments, and muscles in the low back that can all be scarred or injured in ways that don't show up on x-rays. There can be disc problems which initially, again, are not susceptible to analysis through ordinary x-rays or other diagnostic techniques. This is why it is often necessary to wait some considerable length of time before making any kind of confident prediction or evaluation of a patient's back problems.

Both doctors Hoover and Mowry finally concluded that Bennett is permanently and totally disabled as a result of the collision.

The issue raised on appeal is whether, as a matter of law, an injury victim is bound by a release executed when the releasor was aware that he had been injured but was unaware of the serious nature and extent of the injuries.

Until recent times, this state, along with most jurisdictions, applied ordinary contract law to releases of injury claims. An injury victim seeking to avoid a signed release, the terms of which were clear, was usually required to prove that the release was the result of mutual mistake, the various tests of which are detailed in Pepper v. Evanson, 70 Wash.2d 309, 422 P.2d 817 (1967), overruled on other grounds, Simonson v. Fendell, 101 Wash.2d 88, 675 P.2d 1218 (1984). In most instances, this imposed an almost impossible burden upon the injured party. The evidence to prove mutual mistake had to be clear and convincing. Spratt v. Northern Pac. Ry., 90 Wash. 592, 156 P. 563 (1916). The mistake had to be one of fact rather than opinion, so that...