Miller v. Draper, 317882
| Citation | 295 N.E.2d 438,34 Ohio Misc. 11 |
| Decision Date | 27 December 1972 |
| Docket Number | No. 317882,317882 |
| Parties | , 63 O.O.2d 64 MILLER v. DRAPER. |
| Court | Ohio Court of Common Pleas |
Butler, Cincione & DiCuccio, Columbus, for plaintiff.
Sebastian, Durst, Marsh & Redmond and William S. Friedman, Columbus, for defendant.
This action arises from an automobile accident in Columbus on January 9, 1970. Plaintiff collided with the rear of a car which stopped in line of traffic in front of him. Defendant, driving a car in the lane of traffic behind plaintiff, was unable to stop and hit the rear of plaintiff's car.
Plaintiff referred his claim for collision damage to his insurer, Pioneer Mutual Casualty Company. Pioneer ascertained the damage to the rear of plaintiff's car amounted to $136.17, and a subrogation claim for that amount was presented to defendant's liability carrier, Motorists Mutual Insurance Company.
On April 6, 1970, Motorists issued its settlement draft for $136.17 to Pioneer and plaintiff, intending it as full and final settlement of any and all claims of plaintiff. By this date, plaintiff's car was in a body shop for repairs, where Pioneer forwarded the draft for plaintiff to restrictively endorse payable to The Pioneer Mutual Casualty Company.
On the face of Motorists' draft the following words appear: 'Full and final release of all claims against Gerald L. Draper.'
When plaintiff called at the body shop for his car, he was surprised to learn his insurer was treating the matter as two separate collision claims requiring him to pay $50 deductible on each. He also was disturbed about the language purporting to release all claims against defendant. Plaintiff called his attorney and then endorsed the draft. No one coerced him in any manner to sign the draft, and no one made any representations to him that the draft was anything different than what it appeared on its face to be.
Plaintiff was injured in the accident January 9, 1970, and had been to a doctor on January 13, 1970, once again in February and twice more in March 1970. Plaintiff testified that in signing the settlement draft he thought he was releasing only his property damage claim. He claims medical expenses of $123 but does not claim loss of earnings, impairment of earning capacity or permanent injury, having amended his complaint at time of trial to eliminate allegations with respect to these elements of damage.
Plaintiff did not place defendant or his insurer on notice of plaintiff's injury claim until about eleven months after he endorsed Motorists' draft. On March 19, 1971, plaintiff's attorney wrote to defendant asserting the claim for injuries. Defendant promptly referred to letter to his liability carrier, Motorists Mutual Insurance Company. In turn, Motorists wrote plaintiff's attorney March 25, 1971, informing him they had a release from plaintiff.
Notations placed on a negotiable instrument at the time of the execution thereof with the intention of making them a part of the contract constitute a part of the contract. The notation on the face of the settlement draft before us, 'Full and final release of all claims against Gerald L. Draper,' is simple, direct and unambiguous. Payment was offered for release of all claims; acceptance by plaintiff...
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...208, 418 N.W.2d 386, 387 (1987); Colonial Life & Accident Ins. Co. v. Cook, 374 So.2d 1288, 1290 (Miss.1979); Miller v. Draper, 34 Ohio Misc. 11, 12-13, 295 N.E.2d 438, 440 (1972); Berry v. Guyer, 482 S.W.2d 719, 720 Therefore, we conclude that a release can be embodied in language inscribe......
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Franklin Montgomery v. Armco Steel Corp.
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