Luther v. Danner

• Decision Date: 28 January 2000
• Docket Number: No. 79,769.,79,769.
• Citation: 268 Kan. 343,995 P.2d 865
• Parties: JACQUELIN LUTHER, individually, and as the parent and natural guardian of FLOYD M. LUTHER, JR., and ROBERT JOHN LUTHER; and KATHLEEN WOHLGEMUTH, as the Administratrix of the Estate of FLOYD LUTHER, SR., Deceased, Appellants, v. PAUL L. DANNER, JR., and SERVICE PRINTING, INC., Appellees.
• Court: Kansas Supreme Court

268 Kan. 343

995 P.2d 865

JACQUELIN LUTHER, individually, and as the parent and natural guardian of FLOYD M. LUTHER, JR., and ROBERT JOHN LUTHER; and KATHLEEN WOHLGEMUTH, as the Administratrix of the Estate of FLOYD LUTHER, SR., Deceased, Appellants, v. PAUL L. DANNER, JR., and SERVICE PRINTING, INC., Appellees.

No. 79,769.

Supreme Court of Kansas.

Opinion filed January 28, 2000.

Alvin D. Herrington, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause, and Dustin L. DeVaughn and Shari R.L. Willis of the same firm, were with him on the briefs for appellants.

Joel W. Riggs, of McMaster & McMaster, of Wichita, argued the cause and was on the briefs for appellees.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Floyd Luther, Sr., was killed when his motorcycle collided with a truck driven by Paul Danner, Jr., for Service Printing, Inc. Floyd Luther, Jr., was also on the motorcycle and was injured in the collision.

Jacquelin Luther executed a release on behalf of Floyd Jr. in settlement of her minor son's personal injury lawsuit against Danner, Service Printing, and his father's estate. On the ground that the release foreclosed any other claims against Danner and Service Printing, the district court entered summary judgment in their favor on Jacquelin's wrongful death action, her minor sons' claims, and the estate's survival action. The Court of Appeals affirmed the district court's decision on Jacquelin's wrongful death action and reversed on the claims of the Luther children and the estate's survival action. Luther v. Danner, No. 79,769 (unpublished opinion filed May 7, 1999.) Jacquelin's petition for review was granted. The petition for review of Danner and Service Printing was denied.

The sole issue we must resolve on appeal is whether the general release executed by Jacquelin Luther releases her claims against Danner and Service Printing. The relevant part of the release reads as follows:

"I/We Jacquelin Luther, being of lawful age, acknowledge receipt of Six Thousand Five Hundred Dollars, ($6,500) in hand paid, receipt whereof is hereby acknowledged, do hereby and for their heirs, executors, administrators, successors and assigns release, acquit and forever discharge the estate of Floyd L. Luther, Sr., and Dairyland Insurance Company and their servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations, or partnerships of and from any and all claims, actions, causes of action, demand, rights, damages, costs, loss of service, expenses, and compensation whatsoever, which the undersigned now have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily injury and personal injuries the consequences thereof resulting or to result from the accident which occurred on the 29th day of July, 1994.

....

"THE UNDERSIGNED HAVE READ THE FOREGOING RELEASE AND FULLY UNDERSTAND IT AND KNOW THAT IT IS INTENDED TO BE, AND IS, A COMPLETE BAR TO ANY FUTURE CLAIM OR ACTION OF ANY KIND ON ACCOUNT OF ANY INJURIES OR DAMAGES, WHETHER KNOWN OR UNKNOWN AT THIS TIME, CAUSED OR RSULTING FROM THE OCCURRENCE MENTIONED ABOVE. "CAUTION: READ BEFORE SIGNING!

"/s/ (Jacqueline Luther) "/s/ (Atty. Timothy King) "/s/ (Kathleen Wohlgemuth as administratrix of the estate)"

The district court's journal entry of summary judgment shows that the release was drafted by Dairyland Insurance Company, Floyd Sr.'s liability carrier. The settlement transaction it memorialized was negotiated by Floyd Jr.'s attorney and Floyd Sr.'s estate and insurer, with no participation by Danner, Service Printing, or their representative. For his part of the negotiated settlement, Floyd Jr. dismissed his cause of action against his father's estate with prejudice. No other claims were voluntarily dismissed by Jacquelin, her sons, or the estate. Upon concluding that the release clearly and unambiguously released Danner and Service Printing from all claims by Jacquelin, her sons, or the estate, the district court granted summary judgment for Danner and Service Printing on all claims.

The Court of Appeals concluded that "so far as Jacquelin Luther is concerned, in her individual capacity, the release is plain, unambiguous, and binding as to all tortfeasors." The Court of Appeals applied the rules of contract construction in interpreting the release document. Hence, it placed the burden on Danner and Service Printing, as third parties to the release, to prove that the parties named in the release, Jacquelin, Floyd Sr.'s estate, and Dairyland Insurance, intended to release Danner and Service Printing. The Court of Appeals found the intent of the parties to be apparent in the plain language of the release. Accordingly, the Court of Appeals affirmed the district court's refusing to consider parol or extrinsic evidence for the purpose of ascertaining intent. In support of its rationale, the Court of Appeals cited In re Cherokee County Revenue Bonds, 262 Kan. 941, 953, 946 P.2d 83 (1997); Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 42, 510 P.2d 145 (1973); Eggleston v. State Farm Mut. Auto. Ins. Co., 21 Kan. App.2d 573, 574, 906 P.2d 661, rev. denied 257 Kan. 1091 (1995); and a Missouri case.

In In re Cherokee County Revenue Bonds, the question before the court involved construing the language of a trust indenture. The court recited the well-known rules of construction that prohibit courts from analyzing contract provisions in isolation and require courts to refrain from interpretation where the language is unambiguous. 262 Kan. at 953. Fieser was decided before comparative negligence became law in Kansas. The court disapproved the rule that previously had insulated successive tortfeasors from liability where the injured party had given a general release to the original tortfeasor. The only Kansas case cited that actually supports the Court of Appeals' rationale and conclusion is Eggleston. Sharon Eggleston's husband died in an automobile collision. She settled with one of the drivers and signed a release that released him and all others from all Eggleston's current and future claims. The Court of Appeals affirmed summary judgment in favor of all others involved in the collision on the ground that "the release is clear and all encompassing." 21 Kan. App.2d at 574.

In justifying the somewhat harsh result, the Court of Appeals revealed that its consideration extended to factors not on the face of the release document: "Given Eggleston's knowledge at the time she executed the release, the language of the document expresses an intent to release anyone and everyone involved in the accident. See Jukes v. North American Van Lines, Inc., 181 Kan. 12, 20, 309 P.2d 692 (1957)." (Emphasis added.) 21 Kan. App.2d at 574. In relying on Jukes, the Court of Appeals harked back to the time when Kansas courts applied the concept of joint and several liability. In 1974, the legislature enacted a comparative negligence statute, K.S.A. 60-258a.

"In actions where comparative negligence is in issue the court deals in percentages of causal responsibility, and distinctions between primary, secondary, active and passive negligence lose their previous identities. The nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation, and the `all or nothing' concepts are swept aside." Kennedy v. City of Sawyer, 228 Kan. 439, Syl. ¶ 6, 618 P.2d 788 (1980).

The "all or nothing" rule of common-law contributory negligence was softened by institution of comparative negligence concepts. 228 Kan. at 450.

A review of current cases from other states' courts reveals that in the construction of general releases, too, the "all or nothing" rule has given way to more tempered approaches. The Supreme Court of New Mexico made a study of general release cases and identified three categories—"flat bar rule," "intent rule," and "specific identity rule" cases. Hansen v. Ford Motor Co., 120 N.M. 203, 207, 900 P.2d 952 (1995). The three were described as follows:

"Those courts adopting the flat bar rule hold that language such as `all other persons, firms or corporations liable' is unambiguous and discharges all potential tortfeasors from liability. See, e.g., Battle v. Clanton, 27 N.C. App. 616, 220 S.E.2d 97, 99 (1975),cert. denied,289 N.C. 613, 223 S.E.2d 391 (1976); Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764, 765 (1961). The parties to a general release containing `all other persons' language are deemed as a matter of law to have expressed their intent to discharge all potential tortfeasors. Flat bar courts thus look only to the four corners of the release document and do not allow consideration of extrinsic evidence.

"Jurisdictions adopting the intent rule have developed two formulations with similar purposes. Some jurisdictions hold that the parol evidence rule is inapplicable in an action by a party to a release and a stranger to that agreement. See, e.g., Neves, 769 P.2d at 1054; Sims v. Honda Motor Co., 225 Conn. 401, 623 A.2d 995, 1003 (1993). Under this formulation of the intent rule, parol evidence of the parties' intentions is admissible even when the terms of the release are facially unambiguous. See, e.g., Sims, 623 A.2d at 1004 n.12. Other jurisdictions hold that extrinsic evidence of the parties[`] intent is admissible only when the court determines as a matter of law that the terms of the release agreement are ambiguous. See, e.g., Wells v. Shearson Lehman/Am. Express, Inc., 72 N.Y.2d 11, 530 N.Y.S.2d 517, 523-24, 526 N.E.2d 8, 14-15 (1988); Krauss v. Utah State Dep't of Transp., 852 P.2d 1014, 1019-20 (Utah Ct. App.), cert. denied, 862 P.2d 1356 (Utah 1993).

"Jurisdictions adopting the specific identity rule conclusively presume that the liability of a party not named or otherwise specifically identified by the terms of the release is not

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