HARRY T BROWN V STATE FARM MUTUAL AUTO INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
HARRY T. BROWN, Personal Representative of
the Estate of REGINA EDWARDS RANDOLPH,
UNPUBLISHED
May 21, 2009
Plaintiff-Appellant,
v
No. 284325
Oakland Circuit Court
LC No. 2007-085426-NZ
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, AKILAH MARIE
LAWRENCE, and ROCKER’S, INC., d/b/a
SUZ’S BAR & GRILL,
Defendants-Appellees.
Before: Wilder, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
Plaintiff appeals as of right from orders granting summary disposition to defendants State
Farm Mutual Insurance Company and Rocker’s, Inc. We reverse.
The facts for purposes of this appeal are largely undisputed. The decedent was killed as a
result of events occurring on the evening of October 28, 2006. While attempting to cross a street
in Pontiac, she was struck by a Chevrolet truck driven by Tramone Chasen. She was propelled
into the air and landed in the center lane of the street, where she remained, alive but unmoving.
Although people arrived to render assistance, to activate flashers on at least one nearby vehicle,
and to situate a vehicle as a partial, makeshift roadblock, a Pontiac Grand Am driven by Akilah
Lawrence proceeded over the decedent and dragged her several feet. Lawrence had been driving
while intoxicated. The decedent died as a result of her injuries.
Plaintiff, without filing suit, sought to recover from Chasen’s insurance company. On
March 14, 2007, a probate court entered an order stating:
IT IS HEREBY ORDERED that the Motion to Approve Partial Settlement
and Attorneys Fees for this Wrongful Death matter on behalf of the estate of
Regina is granted and the court will accept partial settlement on the Wrongful
Death Matter as to Tramone Dontei Chasen only, for the amount insured of
20,000.00, the full policy limit, being that Mr. Chasen does not own or share
interest in any recoverable assets[.] This will account for full and final Settlement
as to Tramone Dontei Chasen only . . . .
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A release had been executed on March 12, 2007, and stated, in part:
FOR THE SOLE CONSIDERATION of TWENTY THOUSAND
DOLLARS . . . paid by TITAN INSURANCE, I, HARRY T. BROWN . . . hereby
release and discharge TRAMONE CHASEN, his successors, assigns and all other
persons, insurers, firms or corporations who are or might be liable, from any and
all claims, damages, actions, causes of action, and suits of whatever kind, known
or unknown, prior to and including the date hereof, and particularly for all injuries
to person or damage to property resulting or to result, and especially the liability
arising, from an accident which occurred on or about OCTOBER 28, 2006.
The payment made to me is upon my warranty that I have not received any
consideration whatever [sic] for, nor have I released heretofore any person, firm
or corporation from any claim or liability for any injuries to person or property
arising from said accident, and I agree to hold harmless and indemnify the said
from any loss, claim[,] liability, cost or expense growing out of any claim against
them or either of them for contribution by any alleged joint tortfeasor.
In exchange for the consideration I have received for executing this
release, I fully understand and intend that I further release the above-mentioned
parties of any rights of indemnification, contribution, or joiner as third party
defendants or additional defendants which I may have against the said parties and
which have [arisen] or may arise from the OCTOBER 28, 2006 accident with
respect to any claims, causes of action or suits of or by persons or entities other
than mine/ours.
Subsequently, on August 29, 2007, Plaintiff sued Lawrence and Rocker’s, which
operated the bar that served alcohol to Lawrence. He also sought the payment of uninsured
motorist benefits through the decedent’s policy with State Farm.
On December 17, 2007, State Farm moved for summary disposition under MCR
2.116(C)(7), arguing that the release executed with Chasen precluded the claim against State
Farm. Rocker’s later joined in the motion.
At a hearing on February 13, 2008, the trial court agreed with State Farm and Rocker’s,
stating, in part:
The scope of a release is governed by the intent of the parties as they
express therein. . . . If the text of the release is unambiguous, the parties’
intentions must be ascertained from the plain ordinary meaning of the language of
the release.
Having considered the parties’ arguments, the [c]ourt finds that [the]
March 12, 2007, release clearly released State Farm and Rocker’s from any and
all liability as a result of the October 28th accident. The [c]ourt notes according to
plain terms of the release, that plaintiff released all other persons, insurers, or
corporations from any and all claims for all injuries – and for all injuries. The
term any is synonymous with all, and is the broadest classification leaving no
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room for exceptions. See [Romska v Opper, 234 Mich App 512, 515; 594 NW2d
853 (1999)].
The [c]ourt finds the unpublished opinion of [Cook v Shensky,
unpublished opinion per curiam of the Court of Appeals, issued June 15, 2004
(Docket No. 246913),] factually distinguishable from this case. In Cook the court
there recognized that a subsequent medical malpractice could not be released
from the language in the release, which described the nature of the claims released
as they related to the auto – an automobile accident. In Cook the medical
malpractice claims also occurred ten months subsequent to the automobile
accident.
Here, decedent was struck within minutes by the two vehicles and [the]
claims in this case arise out of the accident of October 28, 2006. . . . These are
clearly within the plain language of the release.
The court entered orders dismissing the claims against State Farm and Rocker’s. Later,
on March 14, 2008, the court, at plaintiff’s request, entered an order dismissing, without
prejudice, any claims against Lawrence and thereby disposing of all remaining claims in the
case.
Plaintiff contends that the March 12, 2007, release did not bar his claims in the instant
case. We review de novo a trial court’s decision regarding a motion for summary disposition.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).
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. . . . A
motion under this subrule should be granted only if no factual development could
provide a basis for recovery. [Romska, supra at 515.]
In Romska, supra at 513, the plaintiff’s vehicle was struck by a vehicle owned by Boyan
Daskal and driven by Veliko Velikov. David Opper allegedly caused Velikov to swerve into
oncoming traffic and strike the plaintiff's vehicle. Id. The plaintiff executed a release in
connection with proceedings against Daskal and Velikov. Id. at 513-514. The release stated, in
part:
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. [Id. at 514 (emphasis supplied by Romska).]
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The plaintiff subsequently sued Opper, and the trial court concluded that the release barred
plaintiff’s lawsuit. Id. at 514-515. This Court concluded that Opper clearly fit within the “all
other parties, firms, or corporations who are or might be liable” language from the release. Id. at
515. It stated that it need not “look beyond the plain, explicit, and unambiguous language of the
release in order to conclude that [Opper] has been released from liability.” Id. at 515. The Court
emphasized that the word “all” had been used in the release. Id. at 515-516.
Here, while the release at issue does employ broad language such as “any and all claims,”
the significant point is that the release specifically refers to “an accident,” to “said accident,”
and to “the OCTOBER 28, 2006 accident” (emphasis added). Given that the release was
executed with Chasen, the references to “an accident,” to “said accident,” and to “the OCTOBER
28, 2006 accident” clearly mean the accident caused by Chasen.1 It cannot be seriously disputed
that two accidents occurred on October 28, 2006. First, the decedent was struck by Chasen and
was propelled to the center lane of the street. Then, after people had already stopped to help the
decedent, after the police had been called, and after certain emergency flashers had been
activated, a second accident took place. The March 12, 2007, release refers only to the first
accident. We find unpersuasive the trial court’s conclusion that the “decedent was struck within
minutes by the two vehicles and [the] claims in this case arise out of the accident of October 28,
2006.” That only minutes passed between the accidents does not negate the fact that two
accidents occurred. This case is unlike Romska, in which a single accident occurred that was
caused by multiple individuals.
State Farm cites the unpublished case of Walker v Allstate Ins Co, unpublished opinion
per curiam of the Court of Appeals, issued April 20, 2006 (Docket No. 265604), in support of its
position that a single accident occurred. We first note that unpublished opinions are not binding
on this Court. See MCR 7.215(C)(1). Second, in that case, there was
a lightning-quick, uninterrupted succession of blows dealt by similar vehicles,
going similar speeds, moving in the same stream of traffic, and arising from the
unitary recklessness of their drivers. The second impact flowed naturally from
the first and occurred well before plaintiff reached safety. [Walker, supra, slip op
at 2.]
A witness speculated that the drivers “were drag racing.” Id.
This case presents a far different situation. People had already stopped to help the
decedent and emergency flashers had been activated. This was not an “uninterrupted succession
of blows.” Id. In Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 114; 595 NW2d 832
(1999), the Court indicated that the term “accident” was not defined in the insurance policies at
issue. It then stated,
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We reject State Farm’s assertion that the release “does not limit its application to only those
persons or insurers who have liability in connection with an October 28, 2006 accident.”
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However, using the common meaning of the term, we have repeatedly stated that
an accident is an undesigned contingency, a casualty, a happening by chance,
something out of the usual course of things, unusual, fortuitous, not anticipated,
and not naturally to be expected. [Id. (internal citations and quotation marks
omitted.]
Here, there was an additional “happening by chance” and an event that was “not anticipated”
when the vehicle driven by Lawrence ran over the decedent despite the gathered people, the
flashers, and the partial, makeshift roadblock. We conclude that the release did not bar the
instant lawsuit.
In light of our conclusion, we need not address the additional arguments raised on appeal.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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