Nationwide Mut. Ins. Co. v. Toman

• Decision Date: 19 October 1983
• Docket Number: No. 04-82-00263-CV,04-82-00263-CV
• Citation: 660 S.W.2d 574
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. Betty Anna TOMAN, Appellee.
• Court: Texas Court of Appeals

Page 574

660 S.W.2d 574

NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. Betty Anna TOMAN, Appellee.

No. 04-82-00263-CV.

Court of Appeals of Texas San Antonio.

Oct. 19, 1983.

Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellant.

Adam T. Serrata, San Antonio, for appellee.

Before CADENA, C.J., and BUTTS and DIAL, JJ.

OPINION

BUTTS, Justice.

Nationwide Mutual Insurance Company appeals from a take nothing judgment in favor of Betty Anna Toman, appellee. Nationwide based its suit upon a "release and trust agreement" executed by Toman, the insured, when Nationwide paid her claim arising from an automobile accident. It alleged that Toman received from another insurance company the sum of $9,500.00 for the same claim arising from the automobile accident; the sum, therefore, rightfully belonged to her insurer, Nationwide, by virtue of the subrogation provision. In three points Nationwide argues the trial court erred by concluding the contract terms were ambiguous and denying it recovery of the sum of $9,500.00 from Toman. We agree and, accordingly, reverse and render the judgment.

The trial court filed findings of facts and conclusions of law. TEX.R.CIV.P. 296. Nationwide does not dispute the facts. ¹ On March 13, 1977, in Chester County, Pennsylvania, Toman was a passenger in an automobile driven by an uninsured motorist. That automobile collided with one driven by a motorist who was insured by Government Employees Insurance Company. Toman claimed against her insurer, Nationwide, under the uninsured motorist provision of her policy. Nationwide paid her the sum of $15,000.00. At that time she executed the release and trust agreement, the basis of this suit, which provided in part:

In consideration of such payment, the undersigned for himself/herself personally and in his/her capacity as designated by Nationwide, such action as may be necessary or appropriate to recover the damages suffered by the undersigned and said minor or estate from any person or persons, organization, association or corporation other than Nationwide who or which may be legally liable therefor and to hold any monies recovered from such person or persons, organization, association or corporation as a result of judgment or as a result of settlement with or without litigation, in trust for Nationwide to be paid to Nationwide immediately upon recovery thereof; ... (Emphasis added.) ²

Subsequently Toman entered her claim against the insured motorist in the other automobile and received $9,500.00 from his insurance company, Government Employees. Nationwide then filed this suit on its contract. Having earlier admitted in answer to Nationwide's Request for Admissions that she did owe the company $9,500.00, Toman also acknowledged the debt at the non-jury trial. She stated, however, she had not read the contract before signing it, and that her lawyer told her she did not owe the money. It is well-settled that the effect of a written release cannot be avoided on the grounds that the releasor was ignorant of, or mistaken as to the contents of the release, or failed to read the same before signing it. See Schmaltz v. Walder, 566 S.W.2d 81, 85 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).

In its findings of fact the trial court set out the provisions of the release and trust agreement noted above. The conclusions of law were that the agreement "is ambiguous since it does not expressly state that it applies to monies recovered by the defendant from persons other than the uninsured motorist. The ambiguity ... makes that provision of the Release and Trust agreement unenforceable." Because the facts are not disputed, and Toman never...