Summary
In Eggleston, the plaintiff was suing for the wrongful death of her husband, who had been killed in an automobile accident.
Summary of this case from Anderson v. Employers Mutual Cas. Ins. Co.Opinion
Review Denied May 2, 1995.
Motion for Publication Granted Sept. 26, 1995.
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated September 26, 1995, pursuant to Rule 7.04 (1994 Kan.Ct.R.Annot. 39).
Syllabus by the Court
1. The law favors the settlement of disputes.
2. Courts should not strain themselves to create an ambiguity in a written instrument where, in common sense, there is none.
3. Rules for construing a release are stated and applied.
Donald T. Taylor, of Robb, Taylors&sO'Connor, of Kansas City, and Timothy D. Hamilton, Kansas City, for appellant.
Paul Hasty, Jr., and Timothy J. Mudd, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, for appellees.
Before GERNON, P.J., ELLIOTT, J., and JOHN W. WHITE, District Judge, Assigned.
ELLIOTT, Judge:
Sharon Eggleston sued for the death of her husband; she settled with the underinsured driver of one of the cars involved in the accident and then sued Janet Sharp Waugh and John Shockey, the owners of the car her husband was driving. She also sought underinsured benefits from State Farm (her carrier) and from Farm Bureau (the owners' carrier). The trial court entered summary judgment in favor of all defendants on numerous grounds.
We affirm on a ground not stated by the trial judge entering the final judgment. The original trial judge denied defendants' summary judgment on the issue of the release signed by plaintiff. Defendants raised the issue again before a second trial judge, who simply failed to address the issue because he granted judgment on other grounds. See Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989); In re Conservatorship of Marcotte, 243 Kan. 190, 196, 756 P.2d 1091 (1988).
The release signed by plaintiff Eggleston released
"Fred Davis ... and all other persons, firms, corporations ... of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses, and compensation whatsoever, which [Eggleston] now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen, personal injuries and property damage ... resulting from the occurrence [of the accident]." (Emphasis added.)
At the time of the settlement, Eggleston knew of all of the participants in the tragic accident. And, of course, the law favors the settlement of disputes. See Fieser v. Stinnett, 212 Kan. 26, Syl. p 2, 509 P.2d 1156 (1973).
Knowing of the existence of all of the participants, Eggleston nonetheless released not only Davis, but all other persons, firms, or corporations from any damages arising out of the accident. To us, the release is clear and all encompassing. We should not look for ambiguities or uncertainties where common sense tells us there are none. See Farm Bur. Mut. Ins. Co. v. Laudick, 18 Kan.App.2d 782, 784, 859 P.2d 410, rev. denied 253 Kan. 857 (1993); Bell v. Patrons Mut. Ins. Ass'n, 15 Kan.App.2d 791, 794, 816 P.2d 407, rev. denied 249 Kan. 775 (1991).
Given Eggleston's knowledge at the time she executed the release, the language of the document expresses an intent to release anyone and everyone involved in the accident. See Jukes v. North American Van Lines, Inc., 181 Kan. 12, 20, 309 P.2d 692 (1957).
Since we feel the release clearly justifies the trial court's granting of summary judgment, we need not address the reasons stated for awarding the defendants judgment.
Affirmed.