Davis v. Flatiron Materials Co.

Decision Date11 June 1973
Docket NumberNo. C--202,C--202
Citation182 Colo. 65,511 P.2d 28
PartiesAlbert L. DAVIS and Eva B. Davis, Petitioners, v. FLATIRON MATERIALS COMPANY, Respondent.
CourtColorado Supreme Court

Fischer, Wilmarth & Hasler, Gene E. Fischer, Timothy W. Hasler, Fort Collins, for petitioners.

Warberg & Mast, D. Chet Mast, Sonja E. Warberg, Fort Collins, Yegge, Hall & Evans, Don R. Evans, Denver, for respondent.

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 liability executed by petitioners in favor of respondent. The claimed injuries and damages arose out of a rear-end automobile collision. The trial court held the release to be a complete defense to the action and entered judgment of dismissal of petitioners' complaint. We affirm the judgment of the Court of Appeals.

I.

The accident out of which petitioners' claims arose occurred on May 2, 1967. Mrs. Davis did not appear to be injured at the time and so reported to the investigating police officer.

A report of the accident was made to respondent's insurance carrier. On May 11, 1967, petitioners executed a general release of all claims for an amount equal to the automobile damage estimated at $104.37. Before this sum was paid, Mrs. Davis commented she was suffering from pain in her right hand, arm, neck and shoulder. In view of these complaints, the insurance claims adjuster recommended that Mrs. Davis consult a doctor for examination for possible injuries.

Mrs. Davis then consulted an orthopedist of her own selection, Dr. Daniel M. Murray. Dr. Murray diagnosed Mrs. Davis' injury as a cervical sprain. This was confirmed by Dr. Leon Schreiner, a neurologist, to whom Mrs. Davis had been referred by Dr. Murray.

Dr. Murray's testimony indicated that Mrs. Davis had been suffering for some years from osteoarthritis in her cervical spine. Her history indicated she had fallen down some stairs approximately twelve years earlier and she had been treated in a hospital for neck pain by traction and physiotherapy. This neck pain persisted intermittently through the years prior to the auto collision. The doctor advised Mrs. Davis that the cervical sprain aggravated the arthritic condition in her spine, resulting in the increase of her symptoms.

Dr. Murray prescribed conservative treatment, consisting of physical therapy and neck traction. Mrs. Davis showed considerable improvement and on June 30, 1967 Dr. Murray advised that treatment be discontinued and that she need not see him again unless her symptoms worsened.

The medical report from Dr. Murray showed Mrs. Davis had suffered a cervical sprain, resulting in total disability for approximately one week and partial disability for approximately thirty days, ending June 30, 1967. Dr. Schreiner's report confirmed the diagnosis of cervical sprain which he described as 'traumatic flexion-extension injury of the paracervical soft tissues with traumatic irritation of right cervical 6 nerve root.' He indicated a resulting disability of two weeks duration only. Both medical reports, at Mrs. Davis' request, were forwarded to the claims adjuster, who was aware of their contents at the time of the settlement of petitioners' claims.

Petitioners journeyed to Newton, Kansas on July 1st to visit a daughter. While en route, Mr. Davis became seriously ill and was taken to a hospital at Newton where he was confined for five weeks. During the period of her husband's confinement, Mrs. Davis' symptoms continued and gradually worsened. She did not advise her doctors of this situation. Apparently anxious to get her insurance claim resolved, she wrote the claims adjuster, advising of her husband's illness and asking that the accident claim forms be forwarded to her in Kansas. On July 20 the claims adjuster did so, including a second general release for $255.67, representing the total of the medical expenses incurred and the automobile damages. On July 22, Davises signed the release and returned it to the claims adjuster. Thereafter, on their return to Colorado, a claim draft was issued to petitioners. It was cashed by them on August 29, 1967, and the proceeds were used to pay the auto repairs and medical expenses incurred.

Mrs. Davis had been a medical secretary for twenty-three years and retired approximately nine months before the accident of May 1967. The record is clear, and both she and Mr. Davis testified, that they read and fully understood all of the terms of the general release, which specifically provided:

'It is understood and agreed that this is a FULL AND FINAL RELEASE in full compromise settlement of all claims of every nature and kind whatsoever, and releases all claims whether known or unknown; suspected or unsuspected.'

They testified they intended the release to be a full and final release of all claims.

Petitioners did not, and do not now, claim or in any manner intimate fraud, misrepresentation, imposition or overreaching by the claims adjuster or the respondent in procuring the release. It is quite clear that the initiative in obtaining the compromise settlement was taken by petitioners and that there was no apparent bargaining between the parties over the consideration for the release.

Mrs. Davis testified that her symptoms became worse in the months the followed, contrary to her expectations. She was treated during the months that followed by another orthopedist, Dr. Collopy.

Unfortunately, petitioners were involved in another automobile accident in June of 1969. The traumatic effects of this subsequent accident further aggravated Mrs. Davis' osteoarthritis. Eventually, spinal surgery was performed upon Mrs. Davis in February of 1970, and she testified that this operation relieved her of the pain and suffering that she had experienced in the past.

This action was commenced in March of 1968. We note in this connection that petitioners did not tender a return of the consideration for the release obtained.

II.

Petitioners' theory for relief in the trial court was that of mutual mistake of fact as to the nature and extent of the injuries. The trial court entered extensive findings of fact and conclusions of law. Its critical finding of fact stated:

'In regard to Mrs. Davis's injuries suffered as a result of the automobile accident of May 2, 1967, all of the medical testimony supports the original Diagnosis made by Dr. Murray and Dr. Schreiner as being correct. There is nothing in the evidence to suggest that Dr. Murray and Dr. Schreiner were not acting in the best interests of Mrs. Davis, nor is there any evidence to suggest a mistake in Diagnosis. The Court is making no finding as to why Eva B. Davis's condition worsened, but the Court does find that there was no mistake made as to a past or present material fact that could serve to set aside...

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22 cases
  • Trimble v. City and County of Denver, 81SC398
    • United States
    • Supreme Court of Colorado
    • March 11, 1985
    ...agreement. Public policy favors settlements of disputes, provided the settlements are fairly reached. Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28 (1973). The trial court ruled, however, that Kauvar could not employ the covenant not to sue as a defense because of his fraudulen......
  • Gleason v. Guzman, 79SC155
    • United States
    • Supreme Court of Colorado
    • January 5, 1981
    ...set aside the release for the following reasons: "The Court finds that the facts of this case are governed by Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28 (1973). Any mistake existing at the time the release was executed was not a mutual mistake of fact, but rather a unilatera......
  • Kussman v. City and County of Denver, 83SC214
    • United States
    • Supreme Court of Colorado
    • September 30, 1985
    ...So.2d 709, 711-12 (Fla.App.1979); Bishop v. Klein, 380 Mass. 285, 402 N.E.2d 1365, 1371 (1980); see also Davis v. Flatiron Materials Co., 182 Colo. 65, 71, 511 P.2d 28, 32 (1973) (Colorado public policy favors settlements provided they are fairly Not deducting the settlement amount from the......
  • Ireland v. Wynkoop, s. 71--301
    • United States
    • Court of Appeals of Colorado
    • June 24, 1975
    ...in this case, and since public policy favors the settlement of disputes, we are unwilling to presume such intent. Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28. Therefore, we conclude that the settlement agreement did not violate the preliminary injunction so as to make it We a......
  • Request a trial to view additional results
1 books & journal articles
  • Unobvious Misconduct Under “catch-all” Rules 8.4(c) and (d)
    • United States
    • Colorado Bar Association Colorado Lawyer No. 51-10, November 2022
    • Invalid date
    ...[37] See 2008 N.C. Op. 15 at 2. See generally Colo. RPC 3.3 (requiring candor to the tribunal). [38] E.g., Davis v. Flatiron Materials Co., 511 P2d 28, 32 (Colo. 1973). [39] See People v. Maynard, 275 P3d 780, 784-85 (Colo. O.P.D.J. May 27, 2010) (imposing suspension for attorney-respondent......

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