ATTORNEYS FOR APPELLANT
: ATTORNEY FOR APPELLEES:
JOHN R. OBENCHAIN JEFFREY J. STESIAK
COLIN J. REILLY Sweeney, Pfeifer, Morgan & Stesiak
Jones Obenchain South Bend, Indiana
South Bend, Indiana
AMERICAN FAMILY INSURANCE GROUP, ) ) Appellant-Defendant, ) ) vs. ) No. 50A03-0204-CV-99 ) JOHN and LINDA HOUIN, ) ) Appellees-Plaintiffs. )
OPINION FOR PUBLICATION
After not receiving any response from American Family, on January 11, 2000, counsel for the Houins sent yet another letter to American Family noting the expiration of the time period for responding to the previous letter regarding the settlement, and informing American Family that the Houins
are going to settle with the wrongdoer and execute a general release of him. Due to Mr. Houins injuries we will be pursuing an underinsured motorist claim. I would ask that you provide me with a certified copy of the insurance policy in effect at the time of the loss.
(App. 112) (emphasis in original). Still, American Family did not respond.
On January 18, 2000, counsel for the Houins confirmed to American Family that they had settled the matter with Milliser and that the Houins will be executing the Release today. (App. 114). Further, counsel noted that [s]ince American Family has not responded to my previous letters I presume that there is no objection to the [Houins] signing the Release today. (App. 114).
On that day, January 18, 2000, the Houins executed the release in question. Excluding formal parts, the release provided:
John Houin and Linda Houin, individually and as husband and wife, for and in consideration of the sum of One Hundred Thousand Dollars and No Cents ($100,000.00), to them in hand paid by Safeco/American States Insurance Company the receipt of which is hereby acknowledged, do hereby release, acquit and forever discharge Mark Milliser and Safeco/American States Insurance Company, their heirs, executors, administrators, successors or assigns, together with all other persons, corporations, associations, and partnerships, from all claims and demands, actions and causes of action, for any damages, costs, loss of services, expenses and compensations heretofore or hereafter sustained by us on account of, or in any way growing out of an accident, casualty or event that occurred on or about September 30, 1994, at or near U.S. 31 and 2A Road, Lapaz, Marshall County, Indiana, and on account of which it is asserted that we sustained injuries, damages and losses for which the parties hereby released are legally liable, all of which is denied and disputed by them.
Inasmuch as all of our injuries, damages and losses may not be fully known and hence may be more numerous or more serious than is now understood or expected, we agree, as a further consideration for said payment, that this Release applies to all injuries, damages and losses resulting from said casualty or event, even though now unanticipated, unexpected and unknown, as well as to all injuries, damages and losses which have already developed and which are known or anticipated. As further consideration for said payment, we agree to indemnify and hold harmless the parties hereby released from all damages, costs or expenses, including attorneys fees, which may arise out of any claim derivative of ours.
We warrant that no promise or inducement not herein expressed has been made to us; that in executing this Release we are not relying upon any statement or representation made by any person or party released or their agents, representatives or physicians concerning the nature, extent or duration of our injuries, losses or damages, or the legal liability therefore, or concerning any other thing or matter; that the above-mentioned payment is received by the undersigned in compromise settlement and full satisfaction of all the aforesaid claims and demands, actions and causes of action whatsoever; that we are of full age and legally competent to execute this release, and that before signing and sealing this Release we have fully informed ourselves as to the content and meaning of this Release with the advice of counsel and have so executed it with full knowledge thereof.
(App. 84-85) (emphasis added).
In December 2000, the Houins requested and were granted leave to amend their complaint to add their insurer, American Family, as a party defendant. The amended complaint requested underinsured motorist coverage.
On September 6, 2001, American Family moved for summary judgment based upon its assertion that the language of the release signed by the Houins unequivocally released all potential claims against any entity or person. In their response to a request for admissions, the Houins acknowledged signing the release that contained the following phrase together with all other persons, corporations, associations and partnerships, (App. 117), but asserted that the phrase was qualified and was applicable only to the parties of the Release, Safeco/American States Insurance Company, Mark Milliser and John and Linda Houin. (App. 117). The trial court denied American Familys motion for summary judgment and certified its ruling for interlocutory appeal.
COURT OF APPEALS OF INDIANA
AMERICAN FAMILY INSURANCE GROUP, )
vs. ) No. 50A03-0204-CV-99
JOHN and LINDA HOUIN, )
BROOK, Chief Judge, concurring in result
I concur in the majoritys affirmance of the trial courts judgment, but I
do so on different grounds.
Initially, I observe that the only parties to the release at issue are the Houins themselves: neither Milliser nor Safeco/American States signed the release to manifest their agreement to its terms. Next, I respectfully take issue with the majoritys viewing [of] the release against the backdrop of the letters to American Family notwithstanding its conclusion that the release on its face does not appear to be applicable to those persons or entities not parties to the document and the action from which the release arose. Slip op. at 7. If a release document is indeed unambiguous, the intent of the parties is to be determined by reviewing the language contained between the four corners of that instrument. Estate of Spry, 749 N.E.2d at 1273.
In my view, the release is not unambiguous. In the first sentence of the document, the Houins purported to release from all claims and demands Milliser and Safeco/American States and their successors in interest together with all other persons, corporations, associations, and partnerships[.] (Emphasis added.) In my view, the italicized phrase clearly refers to parties other than Milliser and Safeco/American States and their successors in interest. In the same sentence, however, the Houins mentioned that the parties hereby released denied and disputed legal liability for the Houins injuries, damages and losses; given that American Family never communicated with the Houins prior to the execution of the release, the parties hereby released can only refer to Milliser and Safeco/American States. As our supreme court concluded in a factually similar case,
[t]hese contradictory references cloud the intent of the document. Consequently, parol evidence may be utilized to determine the parties true intentions respecting the documents application. This, of course, necessitates that the entry of summary judgment be reversed and the case remanded for such a factual determination.
Huffman v. Monroe County Cmty. Sch. Corp., 588 N.E.2d 1264, 1267 (Ind. 1992); cf. Estate of Spry, 749 N.E.2d at 1273 (Language that releases all people is clear unless other terms in the instrument are contradictory.). Because the Houins release contains contradictory references, I would affirm the trial courts denial of American Familys summary judgment motion on this basis.