Opinion
67809-4-I
02-19-2013
ALFRED BARBER III, Appellant, v. BEVERLY ANKENY and CHARLES ANKENY, husband and wife and the marital community composed thereof, Respondents.
UNPUBLISHED OPINION
Verellen, J.
Alfred Barber was injured in an auto accident. He appeals from a trial court order dismissing his negligence claim against Beverly and Charles Ankeny. Barber challenges the trial court's conclusion that a release he signed extends to his negligence claim against the Ankenys. Barber also assigns error to the trial court's decision to strike extrinsic evidence concerning the intent behind the release. We conclude that the trial court properly excluded the extrinsic evidence, and that the express terms of the release objectively manifest Barber's intent to fully release the Ankenys. Accordingly, we affirm.
FACTS
While driving on March 7, 2008, Barber was injured in a two-car accident. The driver of the other car was Beverly Ankeny. The car Ankeny was driving was owned by her parents, Abraham and Marcella Van Asperen.
The Van Asperens were insured through their PEMCO Mutual Insurance Company auto policy. The Van Asperens' PEMCO policy also covered Ankeny as a permissive driver. Ankeny also had her own auto insurance policy through GMAC Insurance Company.
In 2010, Barber and his attorney negotiated a settlement of his bodily injury claim with PEMCO. GMAC was not a party to these negotiations. In exchange for payment of the PEMCO policy limit of $50,000, Barber signed a document, entitled "General Release Of All Claims." The release contained comprehensive provisions, including:
In her declaration, the PEMCO claims representative, Olga Rodriguez, claimed that her "primary contact" with Barber's attorney was with a paralegal working for his office. Clerk's Papers at 62.
Rodriguez declared that PEMCO was the "primary carrier" and that GMAC was the "secondary carrier." Clerk's Papers at 63.
[Barber] hereby releases and forever discharges ABRAHAM VAN ASPEREN and MARCELLA VAN ASPEREN, individually, and as husband and wife; BEVERLY ANKENY and CHARLEY ANKENY, individually, and as husband and wife; and PEMCO MUTUAL INSURANCE COMPANY . . . from any and all claims and demands, rights and causes of action of any kind that [Barber] now has or hereafter may have on account of or in any way arising out of a Bodily Injury claim known and unknown at the present time and resulting from an incident that occurred on or about the 7th day of March, 2008, in Renton Washington.
Clerk's Papers at 59.
The next sentence of the release states, "Nothing in this General Release of All Claims applies to the liability insurance applicable to this claim provided by GMAC, the insurance company of Beverly Ankeny and Charley Ankeny."
Clerk's Papers at 59.
In February 2011, Barber initiated a lawsuit against the Ankenys seeking damages based on Beverly Ankeny's negligence in the accident. Barber alleged that he had incurred medical bills totaling approximately $40,000 and would require future treatment.
The Ankenys sought summary judgment, arguing that Barber released them from liability for the car accident by signing the 2010 release. In response, Barber argued that the parties to the release did not intend to fully release the Ankenys, but to release them only from liability covered by the PEMCO policy. Barber submitted the declarations of Barber's counsel's paralegal Chad Legg and PEMCO claim representative Olga Rodriguez concerning the settlement negotiations.
Legg declared that he and Rodriguez "knew that the Pemco policy would not fully compensate Mr. Barber for his damages, " and that Rodriguez "offered to tender the policy limits under the Pemco policy to allow Mr. Barber to seek further compensation through GMAC's insurance policy." Legg stated that "[s]pecific communication" between his office and PEMCO "made it clear that the release . . . was not intended to release the Ankenys from liability for their negligence; it was meant only to release Pemco from liability for its insured's negligence and any further PEMCO liability for the permissive driver, Ms. Ankeny." Legg concludes, "At no time did either party intend to release the Ankenys for their liability for the subject accident."
Clerk's Papers at 65.
Clerk's Papers at 66.
Clerk's Papers at 66.
Rodriguez's declaration explains that the parties sought to release "all claims to the extent of the [PEMCO] policy only." Rodriguez also states there "was nothing in the [release] that was intended to impede or impair Alfred Barber's claims against [the Ankenys] and [GMAC]." Instead, "[i]t was the intent in preparing the [release] that [the Van Asperens], [the Ankenys], as well as [PEMCO], would be released and discharged from all claims only to the extent of the applicable [PEMCO] policy limit of $50,000."
Clerk's Papers at 63.
Clerk's Papers at 63.
Clerk's Papers at 63.
The Ankenys moved to strike the declarations. The trial court granted the motion, explaining:
I will, for the record, just so that the record is clear, I am going to strike the statements that were provided to the Court. I think those were improper, but . . . even if I considered them, to be honest with you, it wouldn't make any difference to my ruling.
The trial court then granted the Ankenys' motion for summary judgment, stating:
Well, I did review all of the briefings, and as I stated, I went over the release several times, and it certainly is clear to me that the plaintiff reviewed the [re]lease, the plaintiff had counsel in so doing; that he voluntarily entered into it. I don't see, nor am I hearing any real evidence of a mutual mistake, coercion, or anything of that sort.
I find that the release is written in clear language. There was consideration, and therefore I am going to grant the motion to dismiss at this time.
Report of Proceedings (Sept. 16, 2011) at 18.
Id. at 17-18.
Barber appeals.
DISCUSSION
Barber asserts that the trial court erred by striking the declarations describing the negotiations between Barber's attorney's office and PEMCO, and by ordering summary dismissal of his claim. We disagree.
We construe releases using the principles governing contracts. Washington courts follow the "objective manifestation" theory of contracts. Under this approach, the focus is on "the objective manifestations of the agreement, rather than on the unexpressed subjective intent of the parties."
Vanderpool v. Grange Ins. Ass'n, 110 Wn.2d 483, 488, 756 P.2d 111 (1988).
Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005); State v. R.J. Reynolds Tobacco Co., 151 Wn.App. 775, 783, 211 P.3d 448 (2009).
Seattle Times, 154 Wn.2d at 503; Lynott v. Nat'l Union Fire Ins. Co., 123 Wn.2d 678, 871 P.2d 146 (1994) (subjective undisclosed intentions are irrelevant; the pertinent inquiry focuses upon the objective manifestations of the parties); see also Restatement (Second) of Contracts § 212, cmt. a (1965) ("the relevant intention of a party is that manifested by him rather than any different undisclosed intention").
Barber contends that the release must be interpreted in conjunction with the declarations by Rodriguez and Legg, and that the trial court erred by striking the declarations in granting summary judgment. We conclude that the trial court properly excluded the declarations.
Evidence of the circumstances surrounding contract formation may be considered if the extrinsic evidence demonstrates objectively manifested mutual intent, and not unilateral, subjective, or undisclosed intent concerning the meaning of the terms of the contract.
Lynott, 123 Wn.2d at 683-84 (quoting Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990)); see also Seattle Times, 154 Wn.2d at 502 ("there has been much confusion over the implications of Berg"). Barber relies heavily upon Berg in arguing the trial court should have considered the declarations. The Seattle Times court sought to clarify its earlier ruling in Berg. "Our holding in Berg may have been misunderstood as it implicates the admission of parol and extrinsic evidence. We take this opportunity to acknowledge that Washington continues to follow the objective manifestation theory of contracts. Under this approach, we attempt to determine the parties' intent by focusing on the objective manifestations of the agreement, rather than on the unexpressed subjective intent of the parties." Seattle Times, 154 Wn.2d at 503.
According to Barber, the declarations reveal that the release was intended to fully release Ankeny from his negligence claim, insofar as it was covered by PEMCO, but not to release Ankeny from the same negligence claim, insofar as it was covered by the GMAC policy. Barber provides no authority a release of a tortfeasor may split a single negligence claim in this manner. Barber's express agreement in the release, to fully and comprehensively release his negligence claim against Ankeny, is necessarily incongruous with retaining that same negligence claim against Ankeny. Even if such a division was Barber's goal, the language used in the release does not objectively manifest such an intention. If Barber intended to forgo any recovery only against PEMCO based on his negligence claim against Ankeny, then he required more sophisticated and more precise provisions objectively manifesting such intent.
As pointed out by Barber in his reply brief, an injured party has no direct cause of action against a third-party insurer. Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 393-94, 715 P.2d 1133 (1986). Because an injured party has no claims against the driver's insurer, a release of all claims against the driver cannot reserve any claims by the injured party against the driver's insurer.
Barber argues that under Berg v. Hudesman and State Farm Mutual Automobile Insurance Co. v. Avery, the release language should be "interpreted to ascertain the intent of the parties as reflected by the entire circumstances under which the contract was made." However, neither Berg nor Avery authorize unrestricted use of extrinsic evidence in contract analysis. Instead, "extrinsic evidence is relevant only to determine the meaning of specific words and terms used, not to show an intention independent of the instrument or to vary, contradict, or modify the written word."
115 Wn.2d 657, 663, 801 P.2d 222 (1990).
114 Wn.App. 299, 311, 57 P.3d 300 (2002).
Appellant's Br. at 5.
Oliver v. Flow Int'l Corp., 137 Wn.App. 655, 660, 155 P.3d 140 (2006) (citing Seattle Times, 154 Wn.2d at 503).
Because Barber urges the court to utilize the declarations to vary, contradict, or modify the written release, neither Berg nor Avery require this court to consider the declarations. "'It is the duty of the court to declare the meaning of what is written, and not what was intended to be written.'" Barber does not propose using the declarations to aid in interpreting the words of the release but, rather, to convert the release into a fundamentally different type of agreement. This court may not use such extrinsic evidence in the manner Barber requests, to judicially graft different and contradictory meaning into the terms of the release-essentially drafting a different contract-under the guise of interpretation. We conclude that the trial court properly rejected the declarations.
Id.
Berg, 115 Wn.2d at 669 (quoting J.W. Seavey Hop Corp. v. Pollock, 20 Wn.2d 337, 348-49, 147 P.2d 310 (1944)).
For example, Legg asserts that "the release . . . was not intended to release the Ankenys from liability for their negligence, " and "[a]t no time did either party intend to release the Ankenys for their liability for the subject accident." Clerk's Papers at 66. This flatly contradicts the express provision that "[i]t is understood and agreed that this is a full and final release of all claims of every nature and kind whatsoever that Releasee [Barber] has against Releasees." Clerk's Papers at 59. "Releasees, " as defined in the release, expressly includes the Ankenys. There is no way to reconcile this contradiction without varying or modifying the express terms of the release.
Corbray v. Stevenson, 98 Wn.2d 410, 415, 656 P.2d 473 (1982).
Barber argues that summary judgment was not warranted. His argument is unpersuasive.
An order granting summary judgment is reviewed de novo and is appropriate when there is no genuine issue of material fact. Words in a contract are assigned their reasonable, "ordinary, usual, and popular" meaning unless the agreement "clearly demonstrates a contrary intent." Moreover, the courts will not indulge in artificial interpretations or abnormal implications in order to save a party from a bad bargain.
We review a summary judgment order de novo, performing the same inquiry as the trial court and considering facts and reasonable inferences in the light most favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Questions of law are reviewed de novo. Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995).
Seattle Times, 154 Wn.2d at 503-04; R.J. Reynolds, 151 Wn.App. at 783.
Kanaskat Lumber & Shingle Co. v. Cascade Timber Co., 80 Wash. 561, 564, 142 P. 15 (1914).
The plain meaning of the phrase "liability insurance applicable to this claim provided by GMAC" is not "I do not release my negligence claim against Ankeny." The court does not "interpret what was intended to be written but what was written." The language of the release does not objectively manifest any intent by the parties to allow Barber to pursue a subsequent lawsuit against the Ankenys. Rather, the release objectively manifests Barber's intent to fully release any and all claims he had against the Ankenys.
Seattle Times Co., 154 Wn.2d at 504.
Barber also argues that the Ankenys and Van Asperens were "concurrent tortfeasors, " and that absent his intent to release the Ankenys or "full compensation" for his damages, the release of the Van Asperens did not operate as a release of the Ankenys. As clarifed at oral argument, Barber included this argument only to illustrate that Washington law recognizes exceptions to the general rule that a release of one tortfeasor effectuates a release of all, if reasonable consideration has been paid to the plaintiff by one or more tortfeasors. In support of this proposition, Barber cites to Vanderpool v. Grange Insurance Association, and Callan v. O'Neil, but neither case supports his argument. Here, the release objectively manifested the parties' intention to release the Ankenys from all claims by Barber. This determination satisfies the criteria of the rule set forth in Vanderpool and Callan and disposes of Barber's remaining assignments of error.
See, e.g., Monjay v. Evergreen Sch. Dist. 114, 13 Wn.App. 654, 658-59, 537 P.2d 825 (1975).
20 Wn.App. 32, 35, 578 P.2d 890 (1978).
Under RCW 4.22.060(2), Washington's contribution statute, a release entered into by a claimant and a tortfeasor "discharges that [tortfeasor] from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides." Vanderpool, 110 Wn.2d at 488 (emphasis added). "The pivotal inquiry is whether the parties to the release intended to release both [tortfeasors]. If such intent is clear from the language of the release, then both parties are released." Id. The Callan court states a similar rule, that "a release of one concurrent tort-feasor does not release other concurrent tort-feasors unless it can be established as a fact 'either (1) that the injured party intended to release all tort-feasors or (2) that the release constituted satisfaction of the obligation.'" Callan, 20 Wn.App. at 35 (quoting Hawaiian Ins. & Guar. Co. v. Mead, 14 Wn.App. 43, 57, 538 P.2d 865 (1975)).
Because the parties intended to release the Ankenys, there is no inquiry whether Barber received full satisfaction.
For the first time in his reply brief (and again at oral argument), Barber argued that the Ankenys lacked standing to invoke the terms of the release in their defense against his claim. Because Barber did not timely raise this argument, we do not consider the issue.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) ("An issue raised and argued for the first time in a reply brief is too late to warrant consideration.").
The limited authority cited by Barber does not support any relief on appeal.
Affirmed.