Romska v. Opper

• Decision Date: 19 March 1999
• Docket Number: Docket No. 195410
• Parties: Evon ROMSKA, Plaintiff-Appellant, v. David OPPER, d/b/a Dave Opper's Excavating, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 853

594 N.W.2d 853

234 Mich.App. 512

Evon ROMSKA, Plaintiff-Appellant, v. David OPPER, d/b/a Dave Opper's Excavating, Defendant-Appellee.

Docket No. 195410.

Court of Appeals of Michigan.

Submitted June 2, 1998, at Detroit.

Decided March 19, 1999, at 9:15 a.m.

Released for Publication June 22, 1999.

Michael McNamee, Port Huron, for the plaintiff.

Garan, Lucow, Miller, Seward & Becker, P.C. (by Randolph J. Martinek and Nancy J. Bourget), Detroit, for the defendant.

Before: MARKMAN, P.J., and SAAD and HOEKSTRA, JJ.

MARKMAN, P.J.

Plaintiff appeals as of right from the order of the lower court granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) (release). We affirm.

This case arises from a May 1994 automobile accident. Plaintiff's vehicle was struck by a vehicle owned by Boyan Daskal and driven by Veliko Velikov. Defendant David Opper allegedly caused Velikov to swerve into oncoming traffic and strike plaintiff's vehicle. Without bringing suit, plaintiff filed personal injury claims with Farm Bureau Insurance, the insurer of the Velikov vehicle, and American States Insurance Company, defendant's insurance carrier. Farm Bureau discussed a "package settlement" with American States, but American States was not interested. Plaintiff ultimately settled with Farm Bureau for $45,000. Plaintiff and Farm Bureau executed a standard release form, which included the following provisions relevant to this appeal:

I/we hereby release and discharge Boyan Daskal and Veliko Velikov, his or her successors and assigns, and all other parties, firms, or corporations who are or might be liable, from all claims of any kind or character which I/we have or might have against him/her or them, and especially because of all damages, losses or injuries to person or property, or both, whether developed or undeveloped, resulting or to result, directly or indirectly, from an accident which occurred on or about May 16, 1994 at [left blank] and I/we hereby acknowledge full settlement and satisfaction of all claims of whatever kind or character which I/we may have against him/her or them by reason of the above-named damages, losses or injuries.

* * *

All agreements and understandings between the parties hereto are embodied and expressed herein and the terms of this release and agreement are contractual and not a mere recital. [Emphasis supplied.]

Plaintiff was subsequently unable to negotiate a settlement with American States and filed suit against defendant. Defendant filed an answer and affirmative defenses that did not include the affirmative defense of release; however, defendant subsequently moved for summary disposition on the basis of the release entered into by Farm Bureau and plaintiff. Defendant claimed that the clear and unambiguous language of the release discharged American States from liability, too, even though there was no evidence that it had paid any consideration to plaintiff for the release from liability. The trial court subsequently permitted defendant to file amended affirmative defenses. The trial court also granted defendant's motion for summary disposition, determining that the broad language of the above release also released defendant and American States from liability. Plaintiff now appeals. ¹

Plaintiff's principal contention is that the trial court erred in granting defendant summary disposition. We disagree. This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Rheaume v. Vandenberg, 232 Mich.App. 417, 420, 591 N.W.2d 331 (1998). When reviewing a motion granted pursuant to MCR 2.116(C)(7), we consider all affidavits, pleadings, and other documentary evidence submitted by the parties and, where appropriate, construe the pleadings in favor of the plaintiff. Id. A motion under this subrule should be granted only if no factual development could provide a basis for recovery. Id.

Because defendant clearly fits within the class of "all other parties, firms or corporations who are or might be liable," we see no need to look beyond the plain, explicit, and unambiguous language of the release in order to conclude that he has been released from liability. ² "There cannot be any broader classification than the word 'all,' and 'all' leaves room for no exceptions." Calladine v. Hyster Co., 155 Mich.App. 175, 182, 399 N.W.2d 404 (1986).

Concerning the analysis of the dissent, we offer the following observations First, plaintiff provided and received consideration under the release and the release, therefore, was valid. The validity of the release having been established, we are aware of no legal rule in Michigan that precludes settling parties from waiving whatever rights they choose.

Second, for at least two reasons, it is inappropriate to look to parol evidence here in determining the scope of the release: (a) the language of the release is unambiguous and thereby precludes resort to allegedly contradictory parol evidence, Meagher v. Wayne State Univ., 222 Mich.App. 700, 722, 565 N.W.2d 401 (1997); ³ and (b) the release contains an explicit merger clause that independently precludes resort to parol evidence. UAW-GM Human Resource Center v. KSL Recreation Corp., 228 Mich.App. 486, 579 N.W.2d 411 (1998). ⁴ The dissent gives no effect at all to the merger clause by allowing resort to exactly the same extrinsic evidence as might be allowed absent the merger clause.

Third, while the dissent describes its own rule as an "intent" rule, we would respectfully disagree. Rather, in our judgment, the common-law rule better deserves this description. The common-law rule holds that a general release of "any and all persons" unambiguously releases "any and all parties." The common-law rule holds that the language of a release should be accorded meaning. It is predicated on the intentions of the parties but, unlike the rule of the dissent, derives such intentions from the language of the release to which they have freely assented. In particular, it is hard to comprehend the dissent's description of its own rule where it refuses to give effect to the parties' own merger clause, which specifies that disputes concerning the release are to be resolved exclusively by resort to the language of the release itself. ⁵

Fourth, the dissent's rule gives little credence to the possibility that, by including broad language in the release, the settling parties wanted to avoid the possibility of future legal burdens potentially arising out of lawsuits by plaintiff against third parties. As the Eighth Circuit Court of Appeals has remarked:

The defendant who originally procures the release gains nothing if the plaintiff can sue other joint or concurrent tortfeasors. In such a case, the original defendant is left open to claims for contribution and/or indemnity and may wind up having to litigate the case anyway. [Douglas v. United States Tobacco Co., 670 F.2d 791, 794 (C.A.8, 1982).]

Given the conclusion of the dissent that even clear release language, coupled with a merger clause, does not afford protection against this prospect, it is hard to understand how finality could ever be achieved through a negotiated release.

Fifth, while we agree with the dissent that this is a case of "first impression" in Michigan with regard to the explicit consideration of the various rules that have evolved concerning the effect of a general release clause, we do note that there are decisions in our state that have adopted the common-law rule. In Grzebik v. Kerr, 91 Mich.App. 482, 486, 283 N.W.2d 654 (1979), the plaintiff was a passenger on a motorcycle, involved in an automobile accident. She settled with the driver of a car that hit the motorcycle, releasing the driver "and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries or death, resulting, or to result, from an accident to me which occurred" on the specified date. Id. at 485, 283 N.W.2d 654. The release concluded, "It is understood and agreed that this is a full and final release of all claims of every nature and kind whatsoever, and releases claims that are known or unknown, suspected and unsuspected." Id. The plaintiff later sued the operator of the motorcycle. This Court affirmed summary disposition for the defendant, noting that "the release was expressly designed to release any and all claims." Id. at 487, 283 N.W.2d 654. In reaching this conclusion, the Court further observed, "The intent of the parties to a release, expressed in the terms of the release, governs the scope of the release." Id. at 486, 283 N.W.2d 654 (emphasis supplied), citing Detroit Automobile Inter-Ins. Exchange v. Joseph, 67 Mich.App. 393, 241 N.W.2d 221 (1976); Auto-Owners Ins. v. Higby, 57 Mich.App. 604, 226 N.W.2d 580 (1975). ⁶

Sixth, we also disagree with the dissent that M.C.L. § 600.2925d; MSA 27A.2925(4), ⁷ which is based on the Uniform Contribution Among Tortfeasors Act 12 ULA 194 et seq., in any way compels the result which it reaches. At common law, release of one joint tortfeasor automatically released all joint tortfeasors. The uniform act responded to what many felt was an unfair and inflexible common-law policy--one which also worked to discourage settlements--by allowing a plaintiff to settle with less than all the alleged tortfeasors without discharging claims against the remaining tortfeasors. Rather than assisting in the resolution of the instant controversy, as the dissent suggests, the uniform act addresses an opposite controversy: the release given to only one joint tortfeasor. The act specifies that such a release does not discharge all others "unless its terms so provide." The instant controversy relates to the release given to "all" tortfeasors and whether such a release, in fact, discharges "all" tortfeasors. These are distinct matters. ⁸ However, even if the...