McLain v. Pernell
| Decision Date | 11 November 1969 |
| Docket Number | No. 29,29 |
| Citation | 255 Md. 569,258 A.2d 416 |
| Parties | Vernel McLAIN v. Henry Felton PERNELL. |
| Court | Maryland Court of Appeals |
Peter G. Angelos, Baltimore, for appellant.
Alva P. Weaver, III, Baltimore, for appellee.
Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.
Involved in this appeal is the effect of a release under seal executed by the appellant, Vernel McLain, plaintiff below in the Superior Court of Baltimore City (Ross, J.), to recover for personal injuries arising out of an automobile accident in Baltimore City. The release was presented to McLain and Melvin C. Paul, counsel for McLain's collision carrier, American Fidelity Fire Insurance Company (American) by the United States Fidelity and Guaranty Company (U.S.F & G.) insurer for the appellee, Henry Felton Pernell, defendant below, on the back of a draft for $289.84 payable to McLain and his collision insurer, American. The release was duly signed and sealed by McLain, his insurer, and Mr. Paul. In specific terms, it released claims for both personal injuries and property damages resulting from the accident.
The facts, presented by the affidavits offered on behalf of the plaintiff in opposition to the defendant's motion for summary judgment and by the draft and release itself, are as follows: The automobile of the plaintiff McLain was involved in a collision with the automobile of the defendant Pernell on Mulberry Street in Baltimore City on August 29, 1965. On October 12, 1965 Mr. Paul notified U.S.F. & G. that McLain had suffered property damages of $239.84 to his automobile as a result of the accident. Shortly thereafter, Mr. Paul forwarded to U.S.F. & G. a 'Proof of Loss and Subrogation Statement' together with a repair estimate from the C & W Body and Fender Shop. After receipt of this data, U.S.F. & G. issued the draft already mentioned on the face of which set forth the date of the accident and on the back of which was the following:
'RELEASE
By the acceptance and endorsement of this draft, it is agreed that said draft is in full and final settlement of any and all liability and claims of whatsoever kind or nature against the person, firm or corporation covered under the terms of the policy as an insured and/or the UNITED STATES FIDELITY AND GUARANTY COMPANY as insurer, because of personal injuries or damage to property resulting or to result from an accident which occurred on or about the date stated on the face hereof.
SIGNED, SEALED and DATED Nov. 4, 1965' (Emphasis added.) 4, 1965' (Emphasis added.) American duly executed this release and after each signature affixed: '(Seal).' Mr. McLain consulted his own attorney prior to the execution of the release. The draft was also endorsed 'Melvin C. Paul, Atty.'
Mr. McLain filed his action on December 23, 1966, to recover for personal injuries alleged to have been sustained as a result of the accident of August 29, 1965. The defendant Pernell, on July 18, 1967, filed the general issue plea and a special plea of release. On the same day, Pernell filed a motion for summary judgment reciting that there was no genuine dispute as to any material fact and that the defendant was entitled to judgment as a matter of law; the motion recited the execution of the release and attached a copy of the draft and accompanying release already mentioned.
The plaintiff McLain filed an answer to the motion together with his supporting affidavit and an affidavit of Selig A. Wolfe, an attorney in the office of counsel for Mr. McLain. In summary, these affidavits indicate that McLain, his counsel and Mr. Paul all believed that the U.S.F. & G. draft-release only pertained to property damages and that personal injuries were never discussed in negotiations with U.S.F. & G. prior to the issuance of the draft. After a hearing on November 20, 1968, on the defendant's motion for summary judgment, the lower court gave the plaintiff an additional 15 days to file supplemental affidavits in order to offer proof, if he could, that the defendant or someone representing him, had affirmatively represented that the release was for property damage only. Although a supplemental affidavit and additional exhibits were filed, there was no statement under oath that such a representation had been made.
On January 21, 1969, the lower court filed an opinion which after reciting the prior proceedings, the filing of the supplemental affidavit and additional exhibits, and the absence of a statement of any representation by the defendant or his representatives that the...
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...of `fraud, accident, or mutual mistake.'" Bernstein v. Kapneck, 290 Md. 452, 460, 430 A.2d 602 (1981)(quoting McLain v. Pernell, 255 Md. 569, 572, 258 A.2d 416 (1969)); see also Canatella v. Davis, 264 Md. 190, 200, 286 A.2d 122 (1972); Donovan v. Kirchner, 100 Md.App. 409, 419, 641 A.2d 96......
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