Georgia Highway Exp., Inc. v. United Parcel Service, Inc.

• Decision Date: 22 November 1982
• Docket Number: No. 65251,65251
• Citation: 164 Ga.App. 674,297 S.E.2d 497
• Parties: GEORGIA HIGHWAY EXPRESS, INC. v. UNITED PARCEL SERVICE, INC.
• Court: Georgia Court of Appeals

Page 497

297 S.E.2d 497

164 Ga.App. 674

GEORGIA HIGHWAY EXPRESS, INC. v. UNITED PARCEL SERVICE, INC.

No. 65251.

Court of Appeals of Georgia.

Nov. 22, 1982.

Charles E. Walker, Marietta, for appellant.

Harvey S. Gray, Atlanta, for appellee.

DEEN, Presiding Judge.

Georgia Highway Express, Inc. ("GHE"), brings this appeal from the summary judgment granted to appellee, United Parcel Service, Inc. ("UPS"), by the Fulton Superior Court. At issue are GHE's claims of subrogation rights against UPS for $5,000 in workers' compensation and no-fault benefits paid by GHE, as self-insurer, to the widow of a GHE employee killed in a vehicular collision allegedly caused by an employee of UPS.

Appellee had successfully contended in its motion for summary judgment that pursuant to a general release signed by the widow in consideration of $300,000 paid by appellee's insurer, Liberty Mutual Insurance Company, there no longer existed any rights to which GHE could be subrogated. Appellee had further contended in his motion for summary judgment that the standard form release signed by GHE's authorized agents amounted to a general release of claims of all sorts arising or to arise out of the collision, and was not confined, as appellant had argued, to property damage claims only, and, moreover, that the $5,000 paid to the widow by GHE was a voluntary payment and therefore no basis for subrogation rights. Appellant assigns as error the trial court's granting of UPS' motion for summary judgment, contending that there exist genuine issues of material fact relative to each of appellant's claims. Held:

1. The trial court erred in granting the motion for summary judgment of appellee, defendant below, on the basis of the releases signed by GHE personnel. Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law..." Ga.Code Ann. § 81A-156(c). The movant has the burden of establishing the nonexistence of any genuine issue of fact, and all doubts are to be resolved against him. Ham v. Ham, 230 Ga. 43, 195 S.E.2d 429 (1973). When the movant is the defendant, he must affirmatively negate at least one essential element of the plaintiff's case, and if he does not do so, he is not entitled to summary judgment. Griffin v. Wittfeld, 143 Ga.App. 485, 238 S.E.2d 589 (1977).

In opposing a motion for summary judgment, the adverse party (here, appellant GHE) must set forth in his response "specific facts showing that there is a genuine issue for trial." Ga.Code Ann. § 81A-156(e). In the instant case the appellant filed affidavits based on the personal knowledge of GHE employees who executed the releases from GHE to appellee's insurer, Liberty Mutual. Attached to the affidavits were copies of the releases and of the handwritten memorandum signed by a Liberty Mutual official stating that the sums paid to GHE in consideration of the release represented settlement of GHE's claims for damage to property and cargo. The affidavits state affirmatively that the intention of the parties to the releases was to dispose of property and cargo damage claims, and not to release any other rights thereby. Appellee offered no counter-affidavits or other documents, other than the releases.

This court has held, and the Supreme Court has affirmed, that unless a release is couched in terms completely unambiguous as to its inclusiveness, a release from liability for property damage does not bar recovery for bodily injury. Glover v. Sou. Bell Tel. and Tel. Co., 229 Ga. 874, 195 S.E.2d 11 (1972); Robinson v. Baker, 141 Ga.App. 43, 232 S.E.2d 386 (1977). It is a maxim of contract law that the instrument should be so construed as to give effect to the parties' intentions. When a standard form release is employed, it is essential that any accompanying properly authenticated contemporaneous documents be construed in pari materia with the form release, so that the intentions of the parties may be ascertained and allowed to control. See Williams v. Physicians & Surgeons Community Hospital, Inc., 249 Ga. 588, 292 S.E.2d 705 (1982). In Robinson v. Baker, supra, the check tendered to the appellant by the defendant's insurer bore the legend, "By endorsing this draft the payee accepts the proceeds of same in full payment of all claims arising from the loss or accident mentioned on the face hereof." A letter from the defendant's insurer to the appellant, however, referred to the face amount of the check as payment for "a property damage loss." The court held that the letter should be given weight as an indicium of the parties' intention, and that the...