Buchanan v. Buchanan, 8624SC355
| Decision Date | 25 November 1986 |
| Docket Number | No. 8624SC355,8624SC355 |
| Citation | 350 S.E.2d 175,83 N.C.App. 428 |
| Court | North Carolina Court of Appeals |
| Parties | Anita BUCHANAN v. Robert BUCHANAN, d/b/a Buchanan Import & Domestic Auto Sales, and the Travelers Indemnity Company. |
Hal G. Harrison, Spruce Pine, for plaintiff-appellant.
Roberts, Cogburn, McClure & Williams by Steven D. Cogburn and Glenn S. Gentry, Asheville, for defendants-appellees.
Plaintiff contends that the trial court erred in granting summary judgment for the defendant. Specifically, plaintiff argues that the affidavits offered by plaintiff and the State Farm insurance adjuster who was involved in the signing of the release form indicate that the release was executed without any intention to excuse any other persons or firms. Plaintiff, citing Cunningham v. Brown, 51 N.C.App. 264, 276 S.E.2d 718 (1981), contends that the failure to accomplish this result constituted a mutual mistake of fact which required denial of defendant's motion for summary judgment. We disagree.
The Cunningham case is not dispositive on the issue involved in the case sub judice. In Cunningham, the plaintiff was a passenger on a motorcycle driven by her husband when they were struck by a tractor-trailer. For consideration, the plaintiff signed a release concerning any claim which she might have had against her husband and his insurance company. As a result of this signing she also released from liability "any other person, firm or corporation charged or chargeable with responsibility or liability," which included the driver of the other vehicle. Id. at 269, 276 S.E.2d at 723.
In Cunningham, the plaintiff claimed that before she signed the release the insurance adjuster assured her that no other claims would be affected. In that case, the court held that the plaintiff could avoid the effect of the signed release by showing that it was procured by fraud or through mutual mistake of fact. Id.
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