Otis Elevator Co. v. Tanner

• Decision Date: 19 March 1993
• Docket Number: A92A2229,Nos. A92A2228,s. A92A2228
• Citation: 208 Ga.App. 417,430 S.E.2d 663
• Parties: OTIS ELEVATOR COMPANY v. TANNER. PICKETT HOTEL COMPANY v. TANNER.
• Court: Georgia Court of Appeals

Page 663

430 S.E.2d 663

208 Ga.App. 417

OTIS ELEVATOR COMPANY v. TANNER.

PICKETT HOTEL COMPANY v. TANNER.

Nos. A92A2228, A92A2229.

Court of Appeals of Georgia.

March 19, 1993.

Reconsiderations Denied April 2, 1993.

Certiorari Denied July 15, 1993.

Long, Weinberg, Ansley & Wheeler, M. Diane Owens, Carlton E. Joyce, Atlanta, for appellant in no. A92A2228.

Carter & Ansley, Tommy T. Holland, Christopher N. Shuman, Atlanta, for appellant in no. A92A2229.

Cobb & Walton, James B. Walton, Doraville, for appellee.

BEASLEY, Presiding Judge.

The applications for interlocutory appeal of Otis Elevator Company and Pickett Hotel Company, defendants below, were granted to consider the denial of summary judgment to them based on a general release from plaintiff Tanner obtained by Pace Construction Corporation, originally a defendant below.

Tanner was an independent contractor for Bell-Mann, Inc., a carpet and tile installation firm. Pace, the prime contractor on the construction of a new Pickett Hotel, had subcontracted the carpet/tile work to Bell-Mann. On November 3, 1984, Tanner stepped into the fifth-floor elevator on the project on his way to get additional supplies for the job. The elevator had been manufactured by Esco Elevators and sold and installed by Otis. The elevator fell five stories, and Tanner was injured.

Tanner filed suit against Pickett, Otis, and Pace on June 22, 1985, eventually adding manufacturer Esco. On January 21, 1987, Tanner and his wife signed a General Release, which stated that, in consideration of the payment of $500, they "remised, released and forever discharged and by these presents, do ... hereby remise, release, and forever discharge Pace Construction Corporation ... and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily injuries, ... resulting, and to result, from a certain accident which happened on or about the 3rd day of November 1984...." (Portions in bold type were typed onto the otherwise printed form.)

A dismissal with prejudice as to Pace was filed on February 10, 1987.

On April 8, 1987, Posey v. Med. Center-West, 257 Ga. 55, 354 S.E.2d 417 (1987) was issued. "The issue reached [was] whether to continue to follow the principle that a general release given to one joint tortfeasor releases all joint tortfeasors. [The Supreme Court decided] ... not to follow that principle any longer.... A valid release of one tortfeasor from liability ... does not discharge others for the same harm, unless it is agreed that it will discharge them.... One not a party to the release may not object to the external evidence [of intent] under the parol evidence rule." Id. at 56, 59, 354 S.E.2d 417.

On October 9, 1991, Pickett and Otis filed their motions for summary judgment in response to which plaintiffs filed the affidavit of their attorney who had negotiated with Pace, stating that there was no intent to release the other joint tortfeasors.

We hold that the rule in Posey v. Med. Center-West, 257 Ga. 55, 354 S.E.2d 417 (1987), applies. That being the case, the General Release given to Pace Construction Corporation did not entitle Otis Elevator Company and Pickett Hotel Company to discharge from liability as a matter of law. The parol evidence (attorney affidavit) and the fact that only Pace was dismissed with prejudice after the release was signed, are admissible under Posey to show that the intent was to release only Pace.

Although under Lackey v. McDowell, 262 Ga. 185, 415 S.E.2d 902 (1992), not even the parol evidence would be needed to limit the reach of the release because on its face it did not name Otis or Pickett, that rule was expressly made only prospective by the Supreme Court. It ruled that the new "not named" rule "should eliminate the need to inquire as to the intent of the parties to releases executed after the date of this opinion." Id. at 186, 415 S.E.2d 902. The contrasting absence of such an expression in Posey is an indication of the Court's intention that the evidentiary rule of Posey apply retroactively, to releases signed before Posey was decided.

Moreover, the criteria for determining whether a court ruling is to be applied retroactively are met here. In general, court rulings apply retroactively. See General Motors Corp. v. Rasmussen, 255 Ga. 544, 545-546(2), 340 S.E.2d 586 (1986). To ascertain whether a court decision applies, we must: "(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance ... the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity." Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712(3), 300 S.E.2d 673 (1983). See also James B. Beam Distilling Co. v. State of Ga., 259 Ga. 363, 364-366(2), 382 S.E.2d 95 (1989).

The rule in Posey rectified a harsh rule of construction imposed by common law, which rule precluded an acknowledgment of the true facts as established by the intent of the parties to the contract. Otis and Pickett cannot be said to have relied on the preexisting law or regulated their conduct by it, because they were not parties to the release given to Pace, may not even have known about it at the time it was negotiated, and did not provide any consideration for it. In addition, Posey should have come as no surprise, for in Williams v. Physicians, etc., Community Hosp., 249 Ga. 588, 590, 292 S.E.2d 705 (1982), the Court held that, "where a non-party to a general release claims coverage thereunder, parol evidence is admissible as an aid in explaining the intention of the parties to the release." Williams involved successive tortfeasors.

Secondly, retroactive application would best serve to accomplish the purpose of Posey, which was to allow the legal effect of the release to be as it was intended to be by the parties to it. It allows parol evidence " 'to ascertain the true intention of the parties (to the release) with regard to those persons who were to be bound or covered by the release.' (Cit.)" Williams, supra at 591, 292 S.E.2d 705.

Third, there is no inequity resulting to Otis and Pickett, for they placed no reliance on the release, such as altering their positions or taking any action based on it. Instead, they would simply be avoiding liability, not on the merits or on settlement with the injured party, but because of the injured party's settlement with a third party as to its liability, the true meaning of which could not be inquired into.

"When no vested right will be adversely affected, we are required to apply the law prevailing at the time of our decision...." Evans v. Belth, 193 Ga.App. 757, 759, 388 S.E.2d 914 (1989). Neither Otis nor Pickett had a vested right in the evidentiary bar. As said in Eig v. Savage, 177 Ga.App. 514, 516, 339 S.E.2d 752 (1986): "An individual can have no vested right in a current state of the law which is subject to change, either by the legislature or the courts, without some act in reliance upon that law. [Cits.]" When they raised the release as a bar, the bar no longer existed due to the holding in Posey, which was in keeping with the court's then-best understanding of the law.

Kinsey v. Elrod, 206 Ga.App. 375, 425 S.E.2d 395 (1992), does not hold that the determinative time for rule application is when the release is signed. It involved a release signed after Posey but before Lackey, supra. The footnote merely states that "[b]ecause the release in this [Kinsey] case was executed prior to April 1992, we apply the law as it was before Lackey." That does not mean that, had the release been signed before Posey, the rule of Posey would not have applied.

The trial court correctly denied summary judgment to defendants Otis and Pickett.

Judgments affirmed.

POPE, C.J., McMURRAY, P.J., and COOPER, JOHNSON and BLACKBURN, JJ., concur.

ANDREWS, J., dissents.

BIRDSONG, P.J., not participating.

ANDREWS, Judge, dissenting.

Because I believe that the release is controlled by pre-Posey authority and effected the release of Otis and Pickett, I respectfully dissent.

Tanner filed suit against Pickett, Otis, and Pace on June 22, 1985, eventually adding manufacturer Esco. On January 21, 1987, Tanner and his wife signed a General Release, which stated that, in consideration of the payment of $500, they "remised, released and forever discharged and by these presents, do ... hereby remise, release, and forever discharge Pace Construction Corporation ... and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and...