¶1dissenting.
¶2I respectfully dissent. In my view, Cravey’s amended complaint and affidavit submitted in opposition to Johnson’s motion for summary judgment did not raise genuine issues of material fact.
¶31. With regard to Cravey’s claim that he was mentally incompetent to execute the release, this Court should recognize and apply the rule that “every man is presumed to have all his mental faculties and to be of normal and ordinary intelligence, and where it is contended that one who executed a contract was not competent to execute it, the burden is upon him who asserts the incompetency. Mental or physical impairment is never presumed. It must be proved. In order to void a contract on the ground of mental incapacity of the maker, he must have been non compos mentis, that is, entirely without understanding, at the time the contract was executed. It is also the policy of Georgia law, wherever possible, to uphold contracts and to uphold the capacity of one to enter into a contract.” (Citations and punctuation omitted.) Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670, 672 (1) (344 SE2d 492) (1986).
¶4It is true that Cravey claimed in his amended complaint that he was mentally incompetent to execute the release because he was under the influence of medication at the time he executed it. But this contention is belied by other allegations. Cravey contended in the amended complaint that his intent at the time he executed the release was only to release claims against liability coverage afforded by Georgia Farm Bureau on behalf of its insured, the driver of the other vehicle in the collision. He also claimed, however, that he did not intend to release any claims to the extent that they were covered by uninsured motorist benefits under a policy issued to him by Southern Trust. It is disingenuous to argue that Cravey was competent to execute the release insofar as it affected Farm Bureau’s coverage but incompetent to execute it inasmuch as it affected other coverage. Cravey’s allegation of incompetence simply does not satisfy his burden of showing that he “was entirely without understanding at the time the contract was executed.” (Citation and punctuation omitted.) Nelson, supra at 672. While Cravey may have been mistaken as to the effect of the release, mistake is not equivalent to incompetency.
¶5Cravey’s affidavit testimony also failed to show that he was mentally incompetent to sign the release. While it recited that Cravey suffered significant injuries to his knees, face, and one arm, that he took pain medication approximately every two or three hours, and that he was on that medication when he signed the release, this evidence alone does not show that he was unable to read and under*134stand the release under the standard of Nelson, supra, when he signed it. It shows m.erely that Cravey was taking pain medication. This case is factually distinguished from Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986), cited by the majority. In Mallard, plaintiff was in pain and under the effects of pain medication when she signed a release. But she also swore that she was semi-literate and could not read with any proficiency. Id. at 583. And while we concluded that the medication affected her ability to reason, we based our reversal of the trial court’s grant of summary judgment to defendants primarily on the “even clearer reason” that a jury issue was presented as to whether plaintiff could have read and understood the release “even had she not been under any other disability.” Id.Mallardis inapt because, unlike the plaintiff in that case, Cravey has not claimed that he suffered from “a disability which deprived him of the capacity to read or reason.” (Emphasis omitted). Id. See also McCoy v. State Farm Ins. Cos., 199 Ga. App. 675 (405 SE2d 743) (1991).
¶6Contrary to Cravey’s argument, reversal is also unwarranted under Wheat v. Montgomery, 130 Ga. App. 202, 205-206 (7) (202 SE2d 664) (1973). In that case, plaintiff signed a release but raised the issue of her incompetency in opposition to summary judgment. She swore, among other things, that she was unable “to think clearly.” Id. at 205. This Court reversed the trial court’s grant of summary judgment to defendant. We stated that once she raised the issue, defendant bore the burden of rebutting her allegation that she was not competent. Apparently defendant failed in this regard. But here, the record — including Cravey’s own pleadings — rebuts his claim of incompetence by revealing his ability to reason at the time he signed the release. Cravey’s reliance on Wheatis consequently misplaced.
¶72. The documents submitted by Cravey also do not show that the adjuster’s alleged statements amounted to actionable misrepresentation. “[N]o fiduciary relationship exists between one having a claim against an insured and the agent of a liability carrier who seeks settlement of the claim, and a release obtained by him from a party having a claim for damages is binding, even if the statements and representations made by him relative to liability or non-liability for the damages were incorrect or based upon erroneous reasons, unless he has prevented the claimant from making investigation of his legal rights. [Cits.]” Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 60 (239 SE2d 381) (1977). Here, as in Conklin, even assuming the adjuster made the alleged statements to Cravey, the record does not show that he engaged in any “artifice, trick or actual fraud . . . that would avoid the release.” Id. Cravey had no reasonable basis to rely upon the alleged representation of another’s insurer, especially when Cravey could himself have determined the extent of his own coverage *135through the simplest of measures — a telephone call to his own insurer. The law is clear that a person cannot claim fraud “about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. [Cits.]” Hubert v. Beale Roofing, 158 Ga. App. 145, 146 (279 SE2d 336) (1981).
¶8Cravey’s argument that a fiduciary relationship was created by the adjuster’s statements that he would — and did — talk with Cravey’s own insurance agent is unavailing. Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588 (322 SE2d 269) (1984), relied upon by Cravey, does not support this argument. That case addresses the issue of personal injury damages to a third party when an insurance company undertakes to make and negligently performs a safety inspection on which the third party was entitled to rely. The issues in this case are wholly unrelated to such a pre-accident inspection but instead focus on representations concerning coverage made with regard to a post-accident claim.
¶9Because Cravey failed to show that he was legally incompetent when he signed the release or that the adjuster made material misrepresentations amounting to fraud, I would affirm the trial court’s grant of summary judgment.
¶10I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.