OpenJurist

48 F3d 1232 Smith Tan v. Englerth

Shannon SMITH, an individual, Plaintiff-Appellant,
and
David Lye TAN, an individual, Plaintiff,
v.
William ENGLERTH, an individual; Heavy Duty Trux, Ltd., a
foreign corporation; Commonwealth General
Insurance Company, a foreign
corporation, Defendants-Appellees.

No. 94-5020.
(D. C. No. 93-C-47-B)

United States Court of Appeals, Tenth Circuit.

March 1, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

1

Before MOORE and BRORBY, Circuit Judges, and ALSOP,2 District Judge.

ORDER AND JUDGMENT1

2

In this diversity suit, Shannon Smith appeals the district court's dismissal of her action on a motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

BACKGROUND

3

Ms. Smith filed suit against William Englerth, Heavy Duty Trux, Ltd., and Commonwealth General Insurance Company (referred to collectively as "defendants"), as a result of an automobile/truck accident which occurred on December 1, 1991, near Vinita, Oklahoma. Ms. Smith was a passenger in a vehicle driven by David Tan. Mr. Englerth was the driver of the truck, under lease to Heavy Duty Trux, Ltd., which collided with Mr. Tan's vehicle. State Farm Mutual Automobile Insurance Company is Mr. Tan's insurance. Commonwealth General is the liability insurer carrier for Trux.

4

On November 25, 1992, prior to bringing this action, Ms. Smith executed two releases, each for consideration of $100,000. The first (hereinafter "Tan release") discharged Mr. Tan,

5

his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or, who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 1st day of December, (year) 1991 at or near Will Rogers Turnpike near Vinita, Okla.

6

(Emphasis added.)

7

The second release (hereinafter "State Farm Release"), entitled "Release and Trust Agreement", acknowledged receipt from State Farm of $100,000,

8

in full settlement and final discharge of all claims under the uninsured/underinsured motorist coverage of the above numbered policy because of bodily injuries known and unknown and which have resulted or may in the future develop, sustained by Shannon Smith by reason of an accident or occurrence arising out the ownership or operation of an uninsured/underinsured automobile by David L. Tan which occurred on or about the 1st day of December (year) 91 at Will Rogers Turnpike (I-44) near Vinita, Oklahoma.

9

The defendants moved for summary judgment arguing the Tan Release discharged and released them from potential liability stemming from the accident. The district court agreed and entered summary judgment in favor of defendants.

10

We review de novo the grant of summary judgment and apply the same standard used by the district court. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

11

Ms. Smith argues the district court erred in concluding the Tan Release discharges and releases defendants from liability. The crux of her argument is the two releases constitute a single document that must be read together. When considered in toto, they evince the parties' intent to release only State Farm from liability, not third parties such as defendants.3

12

Ms. Smith relies on Okla. Stat. tit. 15 158 in arguing the two releases constitute a single contract. That section provides: "Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together." In our judgment, the Tan Release and the State Farm Release are separate and distinct documents which do not relate to the same matter between the same parties and, therefore, do not implicate the Oklahoma statute.

13

Neither of the releases refers to the other, no pagination connects them, there is no continuation from one to the other, and both were signed separately. Most importantly, however, each release pertains to different potential causes of action against different parties. The State Farm Release is based upon the insurer's potential liability under the uninsured/underinsured motorist coverage stemming from Ms. Smith as a passenger in Mr. Tan's vehicle and thus a putative (class 2) insured under the policy. See Townsend v. State Farm Mut. Auto. Ins. Co., 860 P.2d 236 (Okla.1993). In contrast, the Tan Release was predicated on Ms. Smith's direct claim as an injured party against Mr. Tan as a tortfeasor. Thus, each release is based upon a different alleged cause of action and a different status of Ms. Smith: one as a class II insured with contract rights against State Farm, the other as an injured claimant with tort claims against Mr. Tan.

14

The two releases cannot be construed as two contracts "relating to the same matters, between the same parties." On the contrary, the two releases deal with separate matters and different parties. As such, the Tan Release must be construed according to its terms. We turn, therefore, to the question whether the Tan Release discharges and releases the defendants from liability stemming from the accident.

15

Oklahoma has adopted the Uniform Contribution Among Joint Tortfeasors Act. Okla. Stat. tit. 12 831-32. Section 832(H) provides, in pertinent part:

16

When a release, covenant not to sue or a similar agreement is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

17

1. It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide .... Okla. Stat. tit. 12 832(H) (Emphasis added). In Brown v. Brown, 410 P.2d 52 (Okla.1966), the Oklahoma Supreme Court interpreted a release that is virtually identical to the Tan Release. Brown involved a release executed by the plaintiff not only against the driver of the other vehicle involved in the accident, "but all other persons, firms or corporations who are or might be liable from all claims of any kind and character suffered by the plaintiff." Id. at 54. After executing the release, the plaintiff sued her husband who was the driver of the vehicle she was in. The Oklahoma Supreme Court affirmed the trial Court's dismissal with prejudice holding:

18

The release executed by the plaintiff in this case not only released "all other persons, firms or corporations who are or might be liable" but acknowledged "full settlement and satisfaction of all claims of whatever kind".... Can it be said that the terms of the release, itself, indicate the intention of the parties was to release only the defendant against whom the action was dismissed? We think not. We are constrained to hold that the release intended to release "all other persons, firms or corporations who are or might be liable from all claims of any kind or character" arising out of the accident. To hold otherwise would be to disregard the plain language of the release.

19

Id. at 57 (citation omitted).

20

In Mussett v. Baker Material Handling Corp., 844 F.2d 760 (10th Cir.1988), the plaintiff was injured while operating a pallet jack used for unloading trucks at a grocery store. The plaintiff and her husband sued the grocery store. A settlement was reached and the plaintiff signed a release discharging the grocery store "and all other persons, firms, and corporations, both known and unknown, of and from any and all claims.' " Id. at 761. Applying Oklahoma law and the precedent established in Brown, the Tenth Circuit held the release applicable to the manufacturer of the pallet jack and affirmed the district court's dismissal of plaintiff's action stating:

21

The Oklahoma legislature's use of the language, "unless its terms so provide," makes it clear that the statute does not limit the reach of the release where, as here, the terms of the release specifically include all possible defendants, named and unnamed.

22

... We find no basis in Oklahoma law for determining that the Supreme Court of Oklahoma would limit the effect of a properly executed release where the release is unambiguous and on its face clearly released all defendants from liability arising out of the accident involved.

23

Id. at 762.

24

Like the release at issue in Mussett, the Tan Release was properly executed, is unambiguous,4 and released all potential defendants from liability resulting from the accident. As such, we hold Ms. Smith's action against the defendants is barred by the provisions of the Tan Release. There being no dispute as to any material issues of fact, we affirm the district court's entry of summary judgment in favor of defendants.

25

Order AFFIRMED.

2

The Honorable Donald D. Alsop, Senior United States District Judge for the District of Minnesota, sitting by designation

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

3

This conclusion is premised on the contention that language contained in the State Farm release qualifies the Tan Release and demonstrates both releases were intended only to apply to State Farm and Mr. Tan. For the reasons that follow, we need not address this argument

4

Ms. Smith argues Brown and Mussett are distinguishable because those cases did not involve the language contained in the State Farm Release. For the reasons stated above, however, we conclude the State Farm Release is not relevant in resolving this case and thus, it cannot serve to distinguish Brown and Mussett. In addition, Ms. Smith relies solely on the provisions of the State Farm Release in support of her contention the Tan Release is ambiguous. Again, because the State Farm Release is irrelevant to this dispute, the alleged ambiguity and concurrent reliance on parole evidence is misplaced. See Mussett, 844 F.2d at 762 ("When a release is unambiguous, the court must interpret the contract as a matter of law and is precluded from looking beyond the contract.") (citing Okla. Stat. tit. 15, 154 (1966) and Lindhorst v. Wright, 616 P.2d 450 (Okla. Ct.App.1980))