Litts v. Pierce County, 280--II
| Decision Date | 16 August 1971 |
| Docket Number | No. 280--II,280--II |
| Citation | 488 P.2d 785,5 Wn.App. 531 |
| Court | Washington Court of Appeals |
| Parties | Christina A. LITTS, by her Guardian ad Litem, Edwin J. Wheeler et al., Appellants, v. PIERCE COUNTY, a letal subdivision of the State of Washington, Respondent. |
Edwin J. Wheeler of Witt, Hutchins, Plumb & Wheeler, Tacoma, for appellants.
Roy Moceri and William R. Hickman of Reed, McClure, Moceri & Thonn, Seattle, for respondent.
Plaintiffs appeal from a summary judgment dismissing their complaint against Pierce County.
The operative facts are that Christina Litts suffered severely disabling injuries in a two-car accident at the intersection of two roads maintained by Pierce County. She (through her guardian) and her parents sued Guy Ramirez, the driver of the vehicle in which she was riding as a passenger. Subsequently, upon the receipt of $15,000 from her driver's liability carrier, she (through her guardian) and her parents executed an instrument entitled 'Settlement Agreement and Covenant Not to Proceed Further', the pertinent portions of which declare:
The undersigned, of full lawful age, hereby acknowledge receipt from Guy and Karen L. Ramirez, husband and wife, and Hawaiian Insurance & Guaranty Company, Ltd., of the sum of Fifteen Thousand Dollars ($15,000.00) this date, which sum the undersigned acknowledge to be the consideration for a Full surrender of the cause of action set forth against Guy and Karen L. Ramirez in the aforesaid Complaint for Damages, growing out of bodily injury and of property damage sustained by Christina A. Litts as a result of an accident which occurred at or near the intersection of Military Road and Gus G. Bresemann Boulevard in Pierce County, Washington, on or about the 18th day of April, 1969, for which bodily injury and property damage the undersigned claimed Guy Ramirez and Karen L. Ramirez, his wife to be liable, which liability is expressly denied; and, in consideration of the sum paid, the undersigned promises to petition for dismissal of the said Complaint with prejudice, and To release and forever discharge the said Guy Ramirez and Karen L. Ramirez and Hawaiian Insurance & Guaranty Company, Ltd., their heirs, successors, administrators, and assigns, from any and all actions, causes of action, liability, claims and demands upon or by reason of any damages, loss, injury or suffering, known and unknown direct and indirect, which has been or may hereafter be sustained by the undersigned in consequence of such accident and injury.
(Italics ours.)
During the course of the foregoing negotiations, the same parties plaintiff filed a complaint against Pierce County alleging that Christina's injuries resulted from the negligent acts amd omissions of the county.
After filing an answer, Pierce County also filed a motion to dismiss based upon the contention that plaintiffs, having released Mr. Ramirez, had also released the other alleged 'joint tort-feasor.' The trial court granted defendant's motion and this appeal followed.
The applicable rule was clearly enunciated in J. E. Pinkham Lumber Co. v. Woodland State Bank, 156 Wash. 117, 123, 286 P. 95, 98 (1930):
The question has been before us in practically all of its phases, and we have with unanimity held that A release of one joint tort-feasor is a release of all, whether the release be partial or in full, whether the amount of the recovery be unliquidated or measured, and whether the release to the one be with the express reservation that it shall not apply to the others.
(Italics ours.)
The issues then are (1) whether or not the settlement document constitutes a 'release' of Mr. Ramirez, the driver of the vehicle in which Miss Litts was riding; and (2) whether or not Mr. Ramirez and Pierce County were joint tort-feasors under the allegations and documents of record.
The first issue is easily disposed of. A release is a surrender of a claim, which may be given for less than full consideration, even gratuitously. DeNike v. Mowery, 69 Wash.2d 357, 418 P.2d 1010 (1966). The technical distinction between a covenant not-to-sue and a release cogently stated in Haney v. Cheatham, 8 Wash.2d 310, 316, 111 P.2d 1003, 1005 (1941):
(I)t is a covenant not to sue if it gives to the joint tort feasor in return for the payment made by him nothing more than a right of action against the covenantor in the event of the breach of that agreement by the institution of an action; but it is a release if it may be pleaded as a defense to defeat the action brought by the covenantor.
The rule is that the distinction between a covenant not-to-sue and a release will be preserved according to the intention of the parties unless the document is operative as a release. Mills v. Inter Island Telephone Co., 68 Wash.2d 820, 416 P.2d 115 (1966). In the present case, we do not reach the question of the instrument's operative effect as distinguished from the instrument per se because the plain language employed in the instrument is that of a release. Indeed, it would be difficult to draft a document which more explicitly released Mr. Ramirez. The parties plaintiff acknowledged the payment of $15,000 'to be the consideration for a full surrender of the cause of action set forth', and did further promise.
to release and forever discharge the said Guy Ramirez and Karen L. Ramirez and Hawaiian Insurance & Guaranty Company, Ltd., * * * from any and all actions * * * known and unknown direct and indirect, which has been or may hereafter be sustained by the undersigned in consequence of such accident and injury.
Clearly, the parties plaintiff did release Mr. Remirez to the extent that the instrument on its face establishes that it may be pleaded as a defense to defeat any possible future action against him brought by those parties and arising out of that accident.
As to the second issue, the precise definition of a joint tort-feasor has not yet reached a completely stabilized status in this jurisdiction. On the one hand, our attention is directed to Young v. Dille, 127 Wash. 398, 404, 220 P. 782, 784 (1923) in which the court declared: 'To be joint tort-feasors, the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.' On the other hand, we are directed to the recent definition in White Pass Co. v. St. John, 71 Wash.2d 156, 158, 427 P.2d 398, 399 (1967): 'To be a joint tort-feasor, the respondent must have acted in concert with its subcontractor in producing the damage.'
Still further, in recent years this jurisdiction appears to have begun a segregation of the several classifications of multiple tort-feasors into successive, concurrent, and joint, for some purposes, even though in the past, all have been sometimes intermingled under the general term of joint tort-feasor. In DeNike v. Mowery, Supra, a distinction was clearly drawn between an original wrongdoer and a succeeding treating physician. Explaining this distinction, the court declared at 368 of 69 Wash.2d, at 1017 of 418 P.2d:
This confusion in Washington and other American jurisdictions apparently arose because the treating physician and the original tort-feasor could be Joined together as defendants in one cause of action; but the original wrongdoer and the treating physician are obviously not joint tort-feasors in the sense that they acted in concert; nor are they concurrent tort-feasors in the sense that the fault of either could have caused the whole harm suffered by the injured party.
The precise name given to the multiple tort-feasors, of course, is not important. Nor does it serve any useful purpose to declare the nature of the legal obligation in general terms such as several, joint, or joint and several, unless there is a clear and unmistakable understanding of the precise obligations which flow from such generalities.
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