Rose v. Rose , 179 Ind. App. 299 ( 1979 )

HOFFMAN, Judge.

This is an interlocutory appeal in which Thomas and Grace Rose, defendants-appellants herein, appeal from denial of a motion for summary judgment and a motion in limine.

The trial court certified the following issues on appeal: whether there exists a material question of fact precluding summary judgment and whether parol evidence should be admitted to explain appellee’s intent in executing a release. Disposition of the first issue herein renders the second issue moot.

Plaintiff-appellee Dale Rose is the son of appellants. Dale commenced this action to recover for personal injuries arising out of an accident which occurred on his parents’ farm on August 6, 1975. Appellants have liability policies with two insurance carriers: Aetna Insurance Company of the Midwest and Vernon Fire and Casualty Company-

On December 15, 1975 and prior to the commencement of this action, Dale and his wife signed a release with Aetna. The language of the release provides that “. . [the claimants] for and in consideration of the sum of Thirteen Thousand and no/100 Dollars ($13,000.00) Remise, Release and Forever Discharge Thomas Rose and Grace Rose their . . . agents, . . and all other persons, firms and corporations whomsoever of and from any and all actions, claims and demands . . arising out of the . . . event which happened on or about the 6th day of August, 1975 ... in full settlement and satisfaction of all aforesaid claims and demands whatsoever . . . [having] fully informed . . . themselves of its contents and meaning and . . . with full knowledge thereof.”

Thereafter Dale filed this suit, ostensively to procure the coverage provided by appellants’ second liability carrier. Based on operation of the executed release appellants filed a motion for summary judgment. The trial court denied the motion stating in its order that whether the parties intended such release to be in full satisfaction of a claim was a question of fact for the jury. The court relied upon the decision reached in Wecker v. Kilmer (1973), 260 Ind. 198, 294 N.E.2d 132. The court further indicated that but for the holding of Wecker it would have granted summary judgment on the ground that clear terms of the release extinguished any action on the part of Dale Rose against the defendants.

Wecker, recently discussed and followed by this Court in Bellew v. Byers (1978), Ind.App., 382 N.E.2d 1318, involved a factual situation which is distinguishable from the case at bar. Two distinct tortfeasors were involved; the issue being the effect of a release in favor of the initial tortfeasor upon a subsequent tortfeasor. Unlike the Wecker decision there is no factual dispute here as to whom the release was intended to apply. The post-release claim was asserted against the party to whom the release was given. Appellants’ second insurance carrier is neither a subsequent or a joint tortfeasor (as in Bellew v. Byers, supra). Rather, any liability of Vernon Casualty is vicarious in nature, dependent upon the liability of the named appellants. That liability was released in a clear and unambiguous document.

Appellee may have validly reserved a claim in a reservation clause contained in the release as in Cooper v. Robert Hall Clothes, Inc. (1978), Ind.App., 375 N.E.2d 1142. However, a mere private reservation has no effect upon operation of the release, as it is the mutual intent of the parties that must control. Lazarrus v. Employers Mut. Cas. Co. (1977), Ind.App., 364 N.E.2d 140. As in Lazarrus, the contention by Dale Rose that a factual question exists as to his intent in signing the release is futile.

See: Western and Southern Life Ins. Co. v. Vale (1938), 213 Ind. 601, 12 N.E.2d 350;

Robison v. Fickle (1976), Ind.App., 340 N.E.2d 824;

Reagan v. Dugan (1942), 112 Ind.App. 479, 41 N.E.2d 841.

Because a valid release operates as surrender of a claim for relief and claimant’s right to prosecute for recovery, Lazarrus, supra, and because Wecker is inapplicable where a single tortfeasor is involved, there exists no genuine issue of material fact. Summary judgment should have been granted.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

GARRARD, P. J., concurs. STATON, J., dissents with opinion.