SAMUEL HERRICK V RONALD A SOSNOWSKI
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STATE OF MICHIGAN
COURT OF APPEALS
SAMUEL HERRICK,
UNPUBLISHED
May 24, 2005
Plaintiff-Appellant,
v
No. 252299
Wayne Circuit Court
LC No. 02-235677-NI
RONALD A. SOSNOWSKI,
Defendant-Appellee,
and
GEORGE R. HALES,
Defendant.
Before: Murphy, P.J., and White and Smolenski, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendant summary disposition. We
reverse. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff, defendant, and George Hales were involved in an automobile accident. Plaintiff
sued both defendant and Hales. The case was sent to case evaluation and the evaluators awarded
$5,000 against Hales and $45,000 against defendant. Plaintiff accepted both awards; Hale also
accepted the award, but defendant rejected. Plaintiff and Hales entered into a release agreement
and a stipulated dismissal. Defendant then moved for summary disposition, claiming that the
broadly worded release included defendant. The release provided:
THIS INDENTURE WITNESSETH that, in consideration of the sum of
FIVE THOUSAND ($5,000.00) DOLLARS, receipt whereof is hereby
acknowledged, for myself and for my heirs, personal representatives and assigns,
I do hereby release and forever discharge George Hales and Encompass
Insurance Company, formerly known as CNA Insurance Companies, only,
and any other person, firm or corporation charged or chargeable with
responsibility or liability, their heirs, representatives and assigns, from any and all
claims, demands, damages, costs, expenses, loss of services, actions and causes of
action, arising from any act or occurrence up to the present time and particularly
on account of all personal injury, disability, property damage, loss of damages of
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any kind already sustained or that I may hereafter sustain in consequence of an
accident that occurred on or about the 18th day of December, 2000, in the City of
Livonia, County of Wayne, State of Michigan. [Emphasis in original.]
In plaintiff’s answer to defendant’s motion, plaintiff indicated that he and Hales had set aside the
release based on mutual error and entered into a release that excluded the language “and any
other person, firm or corporation charged or chargeable with responsibility or liability.”
Defendant countered that the original release was unambiguous and binding. The trial court
granted the motion, presumably pursuant to MCR 2.116(C)(7).
Both parties cite to or attempt to distinguish Romska v Opper, 234 Mich App 512; 594
NW2d 853 (1999), and Ruppel v Carlson, unpublished opinion per curiam of the Court of
Appeals, issued November 8, 2002 (Docket No. 235266). Those cases are distinguishable from
the case at bar because the language in the original release was different from the language of the
two releases in those cases. The original release stated “George Hales and Encompass
Insurance Company, formerly known as CNA Insurance Companies, only . . . .” The use of
the word “only” followed by “and any other person, firm or corporation charged or chargeable
with responsibility or liability” created an ambiguity that did not exist in the other cases. The
print was in bold type, indicating an emphasis on the limited nature of the release. Simply
looking to the word “and” would result in ignoring the word “only.” Similarly, a focus on the
word “only” would render the following clause nugatory. The language is simply unclear.
Romska and Ruppel do not prevent the use of parol evidence in all cases where a release is
signed; rather, the cases prevent the use of parole evidence where the release is unambiguous.
Having found the original release to be ambiguous, it is permissible to look to the intent of the
parties.
It is difficult to imagine that plaintiff meant to forego further action against defendant for
$5,000. Plaintiff’s affidavit, which was attached to his motion for reconsideration, provided that
his intention was to discharge Hales only. In fact, counsel for Hales even agreed with plaintiff
that the language of the original release did not accurately reflect the parties’ intention and
agreed to enter into a new, amended release. Additionally, the stipulated dismissal provided that
the dismissal was as to Hales, only. The language of the dismissal was further evidence of the
limited nature of the release. Because the language of the original release was ambiguous, the
trial court should have considered parol evidence as to the parties’ intention. Its failure to do so
was error requiring reversal.
Reversed.
/s/ William B. Murphy
/s/ Helene N. White
/s/ Michael R. Smolenski
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