Lazarrus v. Employers Mut. Cas. Co., 3-275A16

• Citation: 173 Ind.App. 452,364 N.E.2d 140
• Decision Date: 29 June 1977
• Docket Number: No. 3-275A16,3-275A16
• Parties: Paul LAZARRUS, Plaintiff-Appellant, v. EMPLOYERS MUTUAL CASUALTY CO., Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 140

364 N.E.2d 140

173 Ind.App. 452

Paul LAZARRUS, Plaintiff-Appellant, v. EMPLOYERS MUTUAL CASUALTY CO., Defendant-Appellee.

No. 3-275A16.

Court of Appeals of Indiana, Third District.

June 29, 1977.

Robert E. Peterson, Peterson & Morton, William H. Deniston, Rochester, for plaintiff-appellant.

James H. Pankow, South Bend, for defendant-appellee.

GARRARD, Judge.

Appellant Lazarrus insured his truck with Employers Mutual Casualty Co. (Employers). In July 1972, during the policy period, the truck was damaged by a fire which made it inoperable. Lazarrus submitted a claim, and during the months which followed there occurred substantial negotiations over what repairs were to be made and who should make them. Lazarrus secured an attorney. On October 2, 1972, Lazarrus' attorney, by letter, demanded $8000 less the salvage value of the truck in the event the company intended to "total" the truck. In addition he demanded $100 per day commencing August 1, 1972, until the settlement was completed due to the delay in disposing of the claim.

On January 22, 1973, Lazarrus executed a proof of loss and settlement form which was witnessed by his attorney. This instrument recited a claim and damage value of $4,481.57 which Lazarrus was paid, and released Employers from further liability for the claim.

The form recited in part,

" * * * That a loss by fire occurred on the 22nd day of July, 1972 at about the hour of 8:00 o'clock p. m. the items and extent of which loss are truly and accurately described in the schedule or invoices hereto attached;

The actual cash value of the property described by aforesaid Policy, actual loss and damage sustained, and the amount claimed under this Policy are as follows: ($4,481.57).

1. The insured does hereby release and discharge the Insurer of any and from any and all claims and demands under the said policy resulting from the occurrence of the loss above described;

2. A. The Insured hereby acknowledges the receipt of the sum of Four thousand, four hundred, eighty-one and 57/100 Dollars, ($4481.57) in full satisfaction and compromise settlement of the said loss;

* * * " In

Subsequently, on March 25, 1974, Lazarrus commenced this action seeking actual damages for delay in the repair of the truck and punitive damages. Employers asserted the release as an affirmative defense and after deposing both Mr. and Mrs. Lazarrus, moved for summary judgment. The trial court granted summary judgment to Employers and Lazarrus appeals. He asserts there were genuine issues of fact which rendered summary judgment inappropriate. Specifically he contends (a) there was a disputed fact question regarding the coverage of the release; and (b) there was a disputed question as to whether the release should be avoided through the operation of equity.

A. Operation of Release

In considering the transaction between the parties it must be borne in mind that a distinction exists between satisfaction and release. A satisfaction is an acceptance of full compensation for an injury. It bars further recovery for that reason. A release, on the other hand, is a surrender of the claim for relief; of the claimant's right to prosecute an action to recovery. ¹ Thus, on a certified question our Supreme Court pointed out in Wecker v. Kilmer (1973), 260 Ind. 198, 294 N.E.2d 132, that to determine whether the release of an original tortfeasor might bar a claim against a subsequent tortfeasor (a treating physician alleged to have committed malpractice) two factors, which are ordinarily questions of fact, control:

"(1) Whether the injured party has received full satisfaction; and

(2) Whether the parties intended that the release be in full satisfaction of the injured party's claim, thus releasing all successive tortfeasor's from liability." 260 Ind. 198, 203, 294 N.E.2d 132, 135.

Thus, if either question is answered affirmatively, further action is barred (assuming for purposes of question 2 an otherwise valid release).

From the record before us, it is apparent that a factual question would exist as to whether Lazarrus actually received full satisfaction for his damage. Accordingly, the summary judgment must be sustainable under question (2) or not at all.

Wecker and our decision in Ebert v. Grain Dealers Mut. Ins. Co. (1973), Ind.App., 303 N.E.2d 693 both point to the fact-oriented context for determining the intent of the parties. Furthermore, the Court in Wecker indicated that parol evidence was admissible to explain the circumstances under which a release was executed as bearing upon the intended effect of the release. ² Here the language of the release stated that Employers was released "of any and from any and all claims and demands" under the policy "resulting from the occurrence" of the fire loss.

In support of its motion Employers submitted the depositions of both Lazarrus and his wife. These disclose that as early as October they were concerned about both the amount of damage to the truck and the time being spent to effect the repairs. From this concern they employed an attorney who made a formal demand for damages for unreasonable delay in settling the claim. More than three months later and in their attorney's...