Haymaker v. General Tire Inc
Annotate this CaseJanuary 1992 Term
___________
No. 20100
___________
DEANNA LYNN HAYMAKER, INDIVIDUALLY,
AND AS ADMINISTRATRIX OF THE
ESTATE OF KEVIN D. HAYMAKER,
Plaintiff Below,
AND
DAVID MICHAEL MATHENY,
Plaintiff Below, Appellant
v.
GENERAL TIRE INC., AN OHIO
CORPORATION, AND TURNPIKE FORD, INC.,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Dan O'Hanlon, Special Judge
Civil Action No. 84-C-2557
REVERSED AND REMANDED
___________________________________________________
Submitted: January 28, 1992
Filed: July 23, 1992
John R. Mitchell
Charleston, West Virginia
Attorney for the Appellant
Daniel R. Schuda
Steptoe & Johnson
Charleston, West Virginia
Attorney for the Appellee, Turnpike Ford, Inc.
Shawn P. George
Charleston, West Virginia
Attorney for Appellee, General Tire, Inc.
CHIEF JUSTICE McHUGH delivered the opinion of the Court.
Justice Workman, deeming herself disqualified, did not participate in the consideration or decision of this case.
SYLLABUS BY THE COURT
The parol evidence rule may not be invoked by a stranger
to a release.
McHugh, Chief Justice:
Appellant, David Michael Matheny, appeals from the order
of the Circuit Court of Kanawha County, entered August 30, 1988,
granting the summary judgment motion of appellees, General Tire,
Inc. and Turnpike Ford, Inc. The Circuit Court of Kanawha County
determined that a general release signed by appellant settling his
claim with a third party (State Farm Insurance, insurer for Kevin
D. Haymaker) also released the appellees in this action. We
reverse the order of the circuit court granting summary judgment
and remand this case for further proceedings.
On July 7, 1982, appellant was the passenger in a vehicle
driven by Kevin D. Haymaker near Belle, Kanawha County. Mr.
Haymaker's wife had purchased the vehicle from appellee, Turnpike
Ford, Inc., on June 15, 1982. The vehicle included tires
manufactured by appellee, General Tire, Inc. A single vehicle
accident occurred whereby both Mr. Haymaker and appellant were
injured. Mr. Haymaker died as a result of his injuries. Appellant
contends that the accident was caused by a faulty left rear tire
which exploded, causing Mr. Haymaker to lose control of the
vehicle.
In 1984, the appellant and Deanna Lynn Haymaker,
administratrix of the estate of Mr. Haymaker, filed a complaint in
the Circuit Court of Kanawha County against appellees to recover
damages as a result of the accident. Prior to filing the
complaint, appellant entered into a settlement agreement with Mrs.
Haymaker and the estate of Mr. Haymaker whereby he specifically
released those two parties "for the sole consideration of $12,000."
The release contains the following language:
For the sole consideration of [$12,000]
. . . the undersigned hereby releases and
forever discharges the estate of Kevin D.
Haymaker, deceased and Deanna L. Haymaker, his
heirs, executors, administrators, agents and
assigns, and all other persons, firms or
corporations liable or who might be claimed to
be liable, none of whom admit any liability to
the undersigned but all expressly deny any
liability, from any and all claims, demands,
damages, actions[,] causes of actions or suits
of any kind or nature whatsoever, and
particularly on account of all injuries, known
and unknown, both to person and property,
which have resulted or may in the future
develope [sic] from an accident which occurred
on or about the 7th day of July, 1982, at or
near Belle, W. Va.
. . . .
Undersigned hereby declares that the
terms of this settlement have been completely
read and are fully understood and voluntarily
accepted for the purpose of making a full and
final compromise adjustment and settlement of
any and all claims, disputed or otherwise, on
account of the injuries and damages above
mentioned, and for the express purpose of
precluding forever any further or additional
claims arising out of the aforesaid accident.
The release was signed by appellant and witnessed by appellant's
counsel. Appellant contends that the appellees were not parties to
the settlement agreement and did not learn of its existence until
after the appellant filed his complaint.
Appellees filed a motion for summary judgment in regard
to the complaint of the appellant. They argued that the language
of the release, whereby "all other persons, firms or corporations
liable or who might be claimed to be liable . . . [are released]
from any and all claims, demands, damages, actions[,] causes of
actions or suits of any kind or nature whatsoever" released them
from liability. The Circuit Court of Kanawha County concluded
that, as a matter of law, the terms of the release are clear and
unambiguous; that the appellant had received adequate consideration
in support of the release; and that appellant had released the
appellees from all claims, demands, actions, causes of action or
suits of any kind or nature whatsoever, and therefore dismissed the
claims of appellant.
Appellant appealed the dismissal to this Court.
Appellant argues that the release was only intended to cover the
estate of Mr. Haymaker and Mr. Haymaker's insurer, and that there
was no intent to release the appellees. Appellant acknowledges
that the release "could be drawn out to cover the defendants,
appellees, if taken strictly in its most literal sense" but
contends that "the intentions of the parties and the circumstances
of the making of the release show that this should not be the
case."
In the instant case, the release in question purports to
release not only the named tortfeasor but "all other persons, firms
or corporations liable or who might be claimed to be liable" as
well. Appellant sought to introduce the affidavit of David V.
Walters, a claims superintendent for the State Farm Mutual
Insurance Company, into evidence before the trial court to show
that the release was only intended to release Mr. Haymaker, and was
not intended to release any other person. Apparently, this
affidavit was not considered by the trial court.
The question we must answer in this case is whether parol
evidence is admissible to vary the terms of the release. In Yoho
v. Borg-Warner Chemicals, 185 W. Va. 265, 266, 406 S.E.2d 696, 697,
we stated that:
West Virginia law regarding application
of the parol evidence rule is well-settled.
'[W]here the terms of a written instrument are
unambiguous, clear and explicit, extrinsic
evidence of statements of any of the parties
to it made contemporaneously with or prior to
its execution is inadmissible to contradict,
add to, detract from, vary or explain its
terms, in the absence of fraud, accident or
mistake in its procurement.' Kanawha Banking
& Trust Co. v. Gilbert, 131 W. Va. 88, 101, 46 S.E.2d 225, 232-33 (1947); see also id. at
Syl. Pts. 1, 2, and 3. Conversely, the law
does provide that parol evidence may be used
to explain uncertain, incomplete, or ambiguous
contract terms. See Glenmark Associates, Inc.
v. Americare, 179 W. Va. 632, 371 S.E.2d 353
(1988); Holiday Plaza, Inc. v. First Fed. Sav.
& Loan Ass'n, 168 W. Va. 356, 285 S.E.2d 131
(1981); Berkeley County Pub. Serv. Dist. v.
Vitro Corp. of America, 152 W. Va. 252, 162 S.E.2d 189 (1968).
It is abundantly clear that the parol evidence rule is applicable
as between the parties to a release when its terms are clear and
unambiguous. It is not clear, however, whether the parol evidence
rule is applicable as between a party to a release and a stranger
to the document.
Even though we have never addressed this specific issue,
many other jurisdictions have done so. Although there is a
divergence of authority, it appears that, generally, the parol
evidence rule may not be invoked by a stranger to a release. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 347
n. 12, 91 S. Ct. 795, 810 n. 12, 28 L. Ed. 2d 77, 97 n. 12 (1971);
Lemke v. Sears, Roebuck & Co., 853 F.2d 253 (4th Cir. 1988)
(applying Virginia law); Essington v. Parish, 164 F.2d 725, 729
(7th Cir. 1947) (applying Illinois law); O'Shea v. New York, C. &
St. L. R. Co., 105 F. 559, 563 (7th Cir. 1901); State Highway
Commission v. Wilhite, 31 N.E.2d 281, 282 (Ind. 1941); Smith v.
Conn, 163 N.W.2d 407, 412 (Iowa 1968), but see Pedersen v. Bring,
117 N.W.2d 509 (Iowa 1962); State v. Rust, 98 N.W.2d 271, 278
(Minn. 1959); Slinkard v. Lamb Const. Co., 225 S.W. 352 (Mo. 1920);
McKim v. Metropolitan Street Ry. Co., 196 S.W. 433, 434 (Mo. Ct.
App. 1917); Menking v. Larson, 199 N.W. 823, 824 (Neb. 1924);
Williams v. Fisher, 28 N.Y.S. 739 (1894); In re Sewer Dist. No. 4,
24 A.2d 678, 679 (Pa. Super. Ct. 1942); Memphis Street Railway
Company v. Williams, 338 S.W.2d 639 (Tenn. Ct. App. 1959); Eckel v.
First National Bank of Fort Worth, 165 S.W.2d 776 (Tex. Civ. App.
1942); Pearce v. Hallum, 30 S.W.2d 399, 402 (Tex. Civ. App. 1930);
International & G.N.R. Co. v. Jones, 91 S.W. 611, 613-14 (Tex. Civ.
App. 1906); Restatement (Second) of Torts § 885 (1982); R. W.
Gascoyne, Annotation, Applicability of Parol Evidence Rule in Favor
of or Against One Not a Party to Contract of Release, 13 A.L.R. 3d
313 (1967).
Adoption of such a rule in this jurisdiction would be
consistent with W. Va. Code, 55-7-12 [1931]:
A release to, or an accord and
satisfaction with, one or more joint
trespassers, or tort-feasors, shall not inure
to the benefit of another such trespasser, or tort-feasor, and shall be no bar to an action
or suit against such other joint trespasser,
or tort-feasor, for the same cause of action
to which the release or accord and
satisfaction relates.
Permitting the use of parol evidence to interpret a
release in actions between a party to a release and a stranger
thereto is also consistent with the rule in this jurisdiction that
permits the use of parol evidence by an injured party to determine
the intent of the parties to release successive tortfeasors in an
agreement to release the original tortfeasor. See Thornton v.
Charleston Area Medical Center, 158 W. Va. 504, 213 S.E.2d 102
(1975).See footnote 1
Appellee, General Tire, cites to this Court Donganieri v.
United States, 520 F. Supp. 1093 (N.D. W. Va. 1981) where the
federal district court was faced with circumstances similar to
those in the instant case. The Donganieri court noted that this
was a case of first impression in West Virginia,See footnote 2 and predicted
that this Court would invoke the parol evidence rule despite the
fact that the United States was a stranger to the release. The
Donganieri court, however, did not address the issue of whether the
parol evidence rule is applicable to a dispute between a stranger
and a party to a release.
In the instant case a stranger to the release seeks to
bar parol evidence which would tend to show that the release was
not intended to benefit the stranger. We hold that the parol
evidence rule may not be invoked by a stranger to a release.
Therefore, the order of the trial court granting summary judgment
in this case must be reversed, and the trial court must consider
parol evidence presented by the appellant to support his assertion
that it was not the intention of the parties who entered into the
release to release the appellees as well.
The August 30, 1988 order of the Circuit Court of Kanawha
County is reversed and this case is remanded for further
proceedings.
Reversed and remanded.
Footnote: 1 In syllabus points 5 and 6 of Thornton, we held:
5. The execution of a general release in
favor of the original tort-feasor or dismissal
with prejudice of a civil action against such
tort-feasor is prima facie evidence of the
intention of the injured party to accept the
same as full satisfaction of all damages which
naturally flow from the original injury, in
the absence of language or circumstances in
the release or dismissal indicating a contrary
intention of the parties; but whether such
release or dismissal is a bar to further
action for malpractice against the treating
physician or hospital providing care is a
question of fact to be answered from the
intention of the parties.
6. To determine the intention of the
parties with reference to release of
successive tort-feasors, the injured party is
entitled to introduce parol evidence to
explain the terms of a contract of release in
favor of, or the circumstances attendant to a
dismissal with prejudice of a civil action
against, the original tort-feasor.
It is clear from syllabus point 5 of Thornton that even "in the absence of language or circumstances in the release or dismissal indicating a contrary intention of the parties," the intention of the parties to the release is paramount. Footnote: 2 This issue was also addressed in two other federal district courts. In Mayle v. Criss, 169 F. Supp. 58 (W.D. Pa. 1958), the court interpreted W. Va. Code, 55-7-12 to mean that the release of one tort-feasor does not inure to the benefit of another such tort-feasor who is not a party to the release, despite language therein purporting to release "all other persons[.]" Id. at 60. An opposite result was reached in Bonar v. Hopkins, 311 F. Supp. 130 (W.D. Pa. 1969), which was essentially followed by the Donganieri court.
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