Davis v. Flatiron Materials Co.
| Decision Date | 23 November 1971 |
| Docket Number | No. 70--445,70--445 |
| Citation | 494 P.2d 607,30 Colo.App. 237 |
| Parties | Albert L. DAVIS and Eva B. Davis, Plaintiffs-Appellants, v. FLATIRON MATERIALS COMPANY, Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Fischer & Wilmarth, Gene E. Fischer, Timothy W. Hasler, Fort Collins, for plaintiffs-appellants.
Warberg & Mast, Sonja E. Warberg, D. Chet Mast, Fort Collins, Yegge, Hall & Evans, Don R. Evans, Denver, for defendant-appellee.
Appellants instituted this action against appellee to recover damages for personal injuries and loss of consortium resulting from a two-vehicle automobile accident. Appellee's principal defense to the action was that the appellants were estopped from asserting any claims by reason of their having executed a written general release of all of their claims arising out of the accident. Appellants then asserted that the release upon which the appellee relied was invalid and should be declared void.
The issue of the validity of the general release was tried separately to the court. Upon the conclusion of the trial of such issue, the trial court ruled that there was no evidence of any fraud, misrepresentation, or overreaching on the part of the insurance claims service which had secured the release in question; that the release was valid; and that there was insufficient evidence of any mutual mistake which would justify voiding the release. In this appeal, the appellants contest the validity of these rulings by the trial court.
Principally, it is the contention of the appellants that, because they executed the release in question in exchange for a sum equal only to their out-of-pocket losses ofr property damage and medical expenses incurred up to the time of its execution, they and the insurer who negotiated the release must have been acting under a mutual mistake as to the severity of Mrs. Davis' injuries and as to the future date of her recovery from these injuries. In support of this position, they point to the facts that Mrs. Davis did incur injury to her back in the accident; that she underwent medical treatment for that injury; and that prior to execution of the release, her doctors advised her further treatment would not be necessary, but that nonetheless later surgery to her back was required.
In addition to these facts, the record reveals without contradiction that the appellants initially executed a general release of all their claims on May 11, 1967, prior to the time that Mrs. Davis was aware that she had suffered any injuries in the subject accident. This is not the release relied upon by the appellee. Following the execution of that release, and at the suggestion of an employee of the insurance claims service handing her claim, Mrs. Davis underwent examination and treatment by doctors of her own selection. She was, as she contends, informed by them on ...
To continue reading
Request your trial
-
Davis v. Flatiron Materials Co.
...LEE, Justice. In this proceeding certiorari was granted to review the decision of the Court of Appeals in Davis v. Flatiron Materials, 30 Colo.App. 237, 494 P.2d 607. The Court of Appeals affirmed the findings and judgment of the trial court, upholding the validity of a general release of l......
- Booher v. Las Animas County School Dist. R-88, R--88