Opinion
No. AAN-CV-06-5001780
January 16, 2007
MEMORANDUM OF RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #102
On October 5, 2006, the plaintiff, Deborah Wallace, filed a one-count complaint against the defendant, Kevin Lutheran. Therein, the plaintiff alleges that she suffered injuries, including a severed finger, as a result of the defendant negligently causing a vehicle door to close on her hand. On December 4, 2006, the defendant filed an answer and special defense. In the special defense, the defendant asserts that the plaintiff is barred from bringing suit because she previously released him from any and all liability arising out of the incident. Also on December 4, 2006, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff released the defendant from liability and, therefore, judgment should enter in his favor. The defendant submitted a memorandum of law in support of the motion along with an uncertified copy of the release. On December 28, 2006, the plaintiff filed a memorandum of law in opposition. The matter was heard on the short calendar on January 2, 2007.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id., 319. "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In the defendant's memorandum of law in support, he argues that the release represents a surrender of the plaintiff's cause of action against him and, therefore, the plaintiff's action cannot go forward. The release provides in relevant part: " DEBORAH WALLACE hereinafter designated as the Releasor, for and in consideration of the sum of FIFTY THOUSAND 00/100 DOLLARS ($50,000.00) . . . and other valuable consideration . . . in hand paid by JEFFREY KUCZO and KEVIN LUTHERAN as it pertains to Progressive Insurance Company hereinafter designated as the Releasees . . . has remised, released and forever discharged . . . the said Releasees of and from all debts, obligations, reckonings, promises, covenants, agreements, contracts, endorsements, bonds, specialties, controversies, suits, actions, causes of actions, trespasses, variances, judgments, extents, executions, damages, claims or demands, in law or in equity, which against said Releasees, the Releasor ever had, now has or hereafter can, shall, or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these Presents.
"More particularly, without waiving the generality of the foregoing, the Releasor hereby releases the Releasees from any claims, demands or causes pertaining to Progressive Insurance Company and arising out of an automobile accident which occurred on July 24, 2005 at or near Madison Avenue in Bridgeport, CT.
"Wherever in this instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words `heirs, executors, administrators, personal or legal representatives, successors and assigns' had been inserted after each and every such designation and all the terms, covenants and conditions herein contained shall be for and shall inure to the benefit and shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns, respectively.
"In all references herein to any parties, persons, entities or corporations the use of any particular . . . plural or singular number is intended to include the appropriate . . . number as the text of the within instrument may require." (Emphasis in original.)
In opposition to the defendant's motion, the plaintiff argues that although she executed a release, the insurance company, Progressive Insurance Company (Progressive), not the defendant, is released from liability. The plaintiff also argues that summary judgment should not enter in favor of the defendant because pursuant to General Statutes § 52-572e, this court needs to determine the intent of the parties at the time the release was executed. The plaintiff has not submitted any evidence along with her memorandum in opposition.
"It is well settled that a release . . . is subject to rules governing the construction of contracts . . . The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction." (Emphasis added; internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482, 650 A.2d 1240 (1994). Accordingly, considering the language of the release, there is no genuine issue that the plaintiff, the "releasor," intended to release the defendant and Jeffrey Koczo (Koczo), the "releasees," "from any claims, demands or causes pertaining to Progressive Insurance Company and arising out of an automobile accident which occurred on July 24, 2005 . . ." (Emphasis added.) Since the defendant has met his burden that there is no genuine issue of material fact that he was released from liability, the court will consider whether the plaintiff has demonstrated the existence of some disputed factual issue. Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006).
Initially, the court reiterates that the plaintiff has not provided any evidence and does not dispute the release submitted by the plaintiff. According to her first argument, the plaintiff reads the language of the release as relieving Progressive from liability but not the defendant. The plaintiff's interpretation ignores the fact that the release unequivocally names the defendant as a releasee thereby evidencing an intent to release that particular defendant. Cf. 17B C.J.S. 330, Contracts § 621 (1999) (naming third party in contract evidences parties' intent to make that person beneficiary). Additionally, the document emphasizes the defendant and Koczo's name with bold capital letters, however, no such emphasis exists in referencing Progressive. Moreover, the document refers to the defendant and Koczo as the "releasees" using a plural noun and the release provides that the use of plural references is intended to include the appropriate number as required. Thus, according to the release, had the parties intended to release Progressive instead of the defendant and Kozco, the term "releasees" would be singular. In light of the terms of the release, the reading assigned by the plaintiff is implausible.
As a practical matter, such a reading thwarts any incentive to obtain insurance coverage because a financially responsible insured would still be liable when his insurance provider enters into a release on his behalf.
A court from another jurisdiction has succinctly stated: "The intent of the parties to benefit the third party is the controlling factor and this may be shown by naming the third party or by other evidence." Carr v. Pearman, 854 N.E.2d 380, 385 (Ind.Ct.App. 2006).
Equally unpersuasive is the plaintiff's reliance on § 52-572e. This statutes provides: "For the purposes of [§ 52-572e] the term `joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property whether or not a judgment has been recovered against all or any of them." (Emphasis added.) General Statutes § 52-572e(a). In this case, the plaintiff has brought suit against only one defendant, the complaint is void of any allegations that any other person may be liable, and the only reference to any other person is found in the release offered by the defendant. As such, it is questionable whether this statute applies without the existence of a joint tortfeasor. See Palmer v. Claydon, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 91 0154046 (September 23, 1999, Hodgson, J.) [ 25 Conn. L. Rptr. 580] (summary judgment granted in favor of one law firm partner where no allegation partner was joint tortfeasor for purposes of § 52-572e and plaintiff entered release with second partner).
Even assuming, however, that § 52-572e applies, the plaintiff cannot prevail. "In Sims [v. Honda Motor Co., 225 Conn. 401, 623 A.2d 995 (1993)], our Supreme Court explained that under § 52-572e, it is the contracting parties' intent, not the operation of a legal rule, that determines the scope of a release. The court then adopted the `intent rule,' whereby the trial court may consider extrinsic evidence of the parties' intent to determine the scope of the release, regardless of whether the language of the release is ambiguous." Ramsay v. Camrac, Inc., 96 Conn.App. 190, 199, 899 A.2d 727, cert. denied, 280 Conn. 910, 908 A.2d 538 (2006). Here, the court is unable to apply the intent rule because there is no extrinsic evidence before the court to consider other than the release itself. The plaintiff has not offered any evidence of the parties' intent contradicting that found on the face of the release and in light of the clear and unambiguous language, there is no real issue to be tried. Wilson v. New Haven, supra, 213 Conn. 279. Accordingly, the defendant's motion for summary judgment is granted.