Buckley v. Brethren Mutual Insurance

EYLER, DEBORAH S., J.,

dissenting.

I respectfully dissent from the majority’s opinion.

Ember Buckley was injured in a single-car accident when she was a passenger in a car being driven by Harvey Betts. She sued Betts—the only alleged or possible tortfeasor—for negligence. Upon reaching a settlement with Betts for $100,000, which was the limit of his automobile liability insurance policy with GEICO, Buckley executed a general release. The release discharged any claim of any nature Buckley had against “all persons, firms, and corporations” arising out of the accident.

Buckley had sued Brethren, her automobile insurance carrier, for breach of contract for failure to pay pursuant to her Uninsured/Underinsured Motorist (“UM”) coverage. By signing the general release, Buckley released her breach of contract claim against Brethren. This outcome is dictated by the terms of the general release and is not changed by section 19-511 of the Insurance Article.

THE RELEASE

Buckley accepted GEICO’s policy limits offer and executed a release entitled “RELEASE IN FULL OF ALL CLAIMS” (“Release”) (bold in original). It is a classic general release. In relevant part, it states:

... Buckley, ... for the sum of one hundred thousand dollars ($100,000) ... do for myself ... hereby remise, release, and forever discharge Harvey Betts ... and all *605other persons, firms or corporations of and from any and every claim, demand, right or cause of action, of whatever kind or nature, on account of or in any way growing out of any and all personal injuries and consequences thereof, including, but not limited to, all causes of action, preserved by the wrongful death statute applicable, any loss of services and consortium, any injuries which may exist but which at this time are unknown and unanticipated and which may develop at some time in the future, all unforeseen developments arising from known injuries, and any and all property damage resulting or to result from an accident that occurred on or about the eighteenth day of March, 2007, at or near Saw Mill Court Baldwin, MD. and especially all liability arising out of said accident including, but not limited to, all liability for contribution and/or indemnity.

(Bold in original.) A box containing the bolded words “THIS IS A RELEASE IN FULL” appears on the face of the Release, next to Buckley’s signature line.1

The language of the Release is clear on its face. Buckley discharged Betts and “all other persons, firms or corporations” “of and from any and every claim, demand, right or cause of action, of whatever kind of nature, on account of or in any way growing out of any and all personal injuries and consequences thereof ... resulting or to result from [the] accident.... ” As to who is being released, the phrase “all other persons, firms or corporations” is not ambiguous. It means “all mankind,” see Peters v. Butler, 253 Md. 7, 8, 251 A.2d 600 (1969), and therefore only can be read to include Brethren (just as it only can be read to include GEICO, Betts’s liability insurer, which is not specifically named in the Release).

*606As to what is being released, the operative phrase of the Release encompasses every sort of claim that might exist resulting from the accident. It is not limited to tort claims, contribution or indemnity claims, contract claims, or claims only against joint tortfeasors or potential joint tortfeasors. It includes every claim “of whatever kind of nature” “in any way growing out of’ the personal injuries Buckley sustained in the accident. Buckley’s breach of contract claim against Brethren under the UM provision of her automobile insurance policy was a claim arising out of the personal injuries she suffered in the accident. The Release quite plainly discharged that claim.

Pemrock, Inc. v. Essco Co., Inc., 252 Md. 374, 249 A.2d 711 (1969), is on point. Pemrock hired Essco to build poultry houses, which were made with material manufactured by Anderson. New Castle issued an insurance policy covering the poultry houses against direct loss caused by windstorms. On January 30, 1966, a snow storm with strong winds knocked the poultry houses down, damaging them. Pemrock and its mortgagee sued New Castle for breach of the insurance policy, asserting that the losses were covered by the policy. After New Castle impleaded Essco and Anderson, alleging that they were negligent in constructing the poultry houses, and that their negligence, not the windstorm, had caused the poultry houses to be damaged, Pemrock amended its complaint to add negligence counts against Essco and Anderson.

Pemrock settled her claim against New Castle. In doing so, she executed a general release discharging any “and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever ... resulting or to result” from the event of January 30, 1966. 252 Md. at 376-77, 249 A.2d 711. Thereafter, Essco and Anderson moved for summary judgment on the ground that the general release executed by Pemrock not only discharged Pemrock’s claim against New Castle but also discharged her negligence claims against them. The circuit court granted the motions. On appeal, the Court of Appeals affirmed. It held that the language of the general *607release “in literal, plain, unambiguous words acquitted and discharged forever not only New Castle but also all other persons” from bodily injury and property damage resulting or to result from the collapse of the poultry houses. 252 Md. at 380, 249 A.2d 711.

Thus, by giving New Castle a general release in settlement of the contract claim against it, Pemrock also released her negligence claims against Essco and Anderson. It did not matter that the claims were of a different nature (contract versus tort), or that New Castle was not a tortfeasor and therefore could not be a joint tortfeasor with Essco and/or Anderson, if they were to be found negligent. Because the language of the general release discharged all claims resulting or to result from the January 30, 1966 storm and consequent damages, against all persons, firms, and corporations, Essco and Anderson were discharged from any liability in tort they may have had.

In reaching its holding, the Pemrock Court relied upon Thomas v. Erie Ins. Exchange, 229 Md. 332, 182 A.2d 823 (1962), another general release case. In Thomas, after the plaintiff was injured in an automobile accident she brought suit against the defendant driver. Under the defendant’s liability insurance policy, the plaintiff was entitled to recover medical expenses. The plaintiff entered into a settlement with the driver, executing a release by which she discharged him and “all other persons, firms or corporations liable or who might be claimed to be liable” for damages “from any and all claims....” 229 Md. at 334, 182 A.2d 823. The Thomas Court held that the general release language discharging “all persons” from liability for “all claims” barred the plaintiff from pursuing her claim for medical expenses against the driver’s insurance company.

Peters v. Butler, supra, 253 Md. 7, 251 A.2d 600, decided shortly after Pemrock, also supports the conclusion that the Release in the case at bar discharged Buckley’s contract claim against Brethren. In Peters, the plaintiff was injured when her husband’s car, driven by her daughter, struck her as she *608was standing behind a low brick wall at an apartment complex. The plaintiff and her husband entered into a settlement with their daughter, her daughter’s liability insurance carrier, and their own carrier, for a total of $55,000, and executed what the Court denominated a “general release to all mankind.” Id. at 10, 251 A.2d 600. The release contained almost exactly the same language as the Release in the case at bar, discharging “all other persons, firms or corporations ...” from any and all claims arising out of the accident. Id.

After executing the general release, the plaintiff and her husband filed suit against the owner of the apartment complex, alleging negligence. The apartment complex raised the release as a defense and moved for summary judgment. The plaintiffs then sought to reform the release, arguing that they did not intend to release the owner of the apartment complex. The court found that the evidence did not support reformation, and granted summary judgment.

On appeal, the primary issue was whether under the Maryland Uniform Contribution Among Tortfeasors Act (“Act”), then codified in article 50, sections 16 through 24 of the Maryland Code, a general release of one joint tortfeasor that discharges “all other persons, firms, or corporations ...” from liability arising from the accident releases all other tortfeasors. The plaintiffs argued that, because then-section 19 of the Act provided that the release of one joint tortfeasor did not operate to release the other tortfeasors “unless the release so provides,” the apartment complex was not released, because it was not named in the release and it did not pay any consideration for the release. Id. at 9-10, 251 A.2d 600. The Court of Appeals rejected that argument, invoking the holding in Pemrock that “a general release to all mankind barred further suits against other entities involved in the occurrence which produced the settlement with one participant that led to the release.” 253 Md. at 10, 251 A.2d 600. The fact that the person released is not named or has not given consideration is of no consequence. See William Prosser, Prosser on Torts § 49 (4th ed.1978) (explaining that “a release is a surrender of *609a cause of action, which may be gratuitous or given for inadequate consideration”).

Somewhat more recently, in Cupidon v. Alexis, 335 Md. 230, 643 A.2d 385 (1994), the Court of Appeals, relying upon Pemrock and Peters, held that release language in drafts issued to three plaintiffs who settled their automobile negligence claims against the driver of a car that struck the car in which they were riding as passengers did not operate to release their negligence claims against the driver of the car in which they were riding. The release language in the drafts stated “final settlement of any and all claims arising from bodily injury caused by accident on 01/17/91.” 335 Md. at 282, 643 A.2d 389.

The Court held that this language was sufficient to release the other driver but was not sufficient to release the driver of the car in which the plaintiffs were riding. Id. at 237, 643 A.2d 389. The Court emphasized that the general releases in Pemrock and Peters discharged “all other persons” from liability. Id. It was the release of “all other persons” that discharged “all mankind” from liability for damage arising out of the storm in Pemrock and the automobile accident in Peters. The “settlement of any and all claims” did not operate to discharge all people, including all other tortfeasors, from liability, as would have happened had “all other persons” been released.

Returning to the case at bar, as noted several times, the Release signed by Buckley released Harvey Betts “and all other persons, firms or corporations of and from any and every claim, demand, right or cause of action, of whatever kind or nature, on account of or in any way growing out of any and all personal injuries and consequences thereof’ arising out of the accident. (Emphasis added.) In other words, the plain language of the Release discharged “all mankind”—including Brethren—from liability of any sort arising out of the accident.

Maryland Court of Appeals law is clear that a general release of “all persons, firms, or corporations” releases “all *610mankind” from liability arising out of an incident. As Pernrock makes plain, that is so for claims against tortfeasors and also for contract claims against insurance companies. In the case at bar, the plain and unambiguous language of the Release discharged Buckley’s claim against Brethren.

THE STATUTE

Under section 19-511(a) of the Insurance Article, when GEICO made a written offer to Buckley to pay its policy limits in settlement of her claim against Betts, Buckley had a duty to notify Brethren of GEICO’s offer, in writing and by certified mail. Former counsel for Buckley did so, attaching to her correspondence to Brethren the written offer from GEICO. When Brethren received the letter from former counsel for Buckley, it had a duty under section 19—511(b)(1) and (2) to respond in writing within 60 days by sending Buckley either a written consent to her acceptance of the GEICO settlement offer and execution of releases or a written refusal to consent to her acceptance of the GEICO settlement offer.

Brethren did neither. Instead, it sent a letter to Buckley’s former counsel that did not say it consented to Mrs. Buckley’s accepting GEICO’s offer and did not say that it was refusing to consent to Buckley’s acceptance of GEICO’s settlement offer. All the letter from Brethren said was that it would waive its subrogation rights against Betts. As this Court explained in Kritsings v. State Farm Mut. Auto. Ins. Co., 189 Md.App. 367, 984 A.2d 395 (2009), when a UM carrier fails to respond in writing that it either is consenting to its insured’s accepting the alleged tortfeasor’s liability carrier’s policy limits offer or is refusing to so consent, it violates section 19-511(b).2

*611Because the letter from Brethren to Buckley’s former counsel is clear, in that it does not consent to Buckley’s accepting GEICO’s offer nor does it refuse to consent to her accepting the offer, there is no dispute of fact that needs to be resolved as to the meaning of the letter.

Section 19-511(e) provides in relevant part that if the UM carrier “has not met the requirements of subsection (b)”—that is, has neither consented nor refused to consent to the injured person’s accepting the liability carrier’s offer within the 60-day period—the injured person may accept the liability carrier’s policy limits offer and “execute releases in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer.” (Emphasis added.) So, here, Brethren’s failure to adhere to the requirements of subsection (b) meant that Buckley could, if she so desired, accept GEICO’s $100,000 policy limits offer and execute releases in favor of GEICO and Betts.

Buckley in fact accepted GEICO’s settlement offer, but instead of executing a release, or releases, discharging the liability of GEICO and Betts (that is, “in favor of the liability insurer and its insured”), she signed a release that discharged their liability and the liability of all other persons, firms, or corporations, i.e., “all mankind,” for claims arising out of the accident. If the Release had discharged Betts and GEICO without releasing the rest of the world, it would have been executed without prejudice to any claim Buckley had against Brethren. Prior to enactment of section 19-511(e), an injured person who had a UM claim could not as a practical matter settle for policy limits with the tortfeasor’s liability carrier, because the liability carrier would demand a release, but a release would constitute a breach of the UM carrier’s policy, as it could impair the UM carrier’s rights. Section 19-511(e) eliminated that Catch-22 by providing that the injured person could accept a policy limits settlement from the alleged tortfeasor and give a release in favor of the alleged tortfeasor and his liability carrier without losing his contract claim against *612his UM carrier. See Kritsings, supra, at 378-79, 984 A.2d 395.

By operation of section 19-511(e), the injured person’s claims against his UM carrier are preserved even though the injured person has accepted the settlement offer of the alleged tortfeasor’s liability carrier and has released the liability carrier and the alleged tortfeasor. That section does nothing to change the consequences of the injured person’s executing a general release of “all persons” instead of executing a release in favor of the liability carrier and the alleged tortfeasor. When the injured person executes a general release of “all persons,” the general release still discharges the entire world from liability for all claims of any sort (as this Release provided) arising out of the accident. As explained above, by its plain and unambiguous language, Buckley’s release discharged her claims against everyone, including Brethren.

The majority misreads the language of section 19-511(e) to mean that, if the UM carrier does not comply with subsection 19-511(b), and the injured person accepts the settlement and releases not only the liability carrier and the alleged tortfeasor but also the entire world, the injured person’s cause of action against his UM carrier is preserved. If section 19-511(e) is read that way, it produces the absurd result that, so long as the liability carrier and the alleged tortfeasor are released, it does not matter what the release says about the liability of anyone else. A release discharging the entire world from liability would have exactly the same effect as a release discharging only the alleged tortfeasor’s liability carrier and the alleged tortfeasor from liability. The statute cannot reasonably be read to nullify the plain language of a release.

The majority also misreads section 19-511(e) by concluding that, if the statute meant that releasing only the alleged tortfeasor and his liability carrier, and no one else, would preserve the injured person’s claim against his or her UM carrier, the statute would have included the word “only,” which it does not; and it is improper to read the word “only” into the statute when it is not there.

*613There was no reason for the legislature to have included the word “only” in this statute, however. The statute as written provides that, when the alleged tortfeasor and his liability carrier are released, the UM carrier is not released. Thereafter, the language of the release used will dictate the result, as usual. If another specifically named person is released as well, the liability of the UM carrier still will be preserved; for example, if in addition to the alleged tortfeasor and his liability carrier, another person also is released (and that person is not the UM carrier), the UM claim will remain intact. Here, however, the Release specifically discharged Betts but also discharged everyone else in the world. Thus, the Release discharged Betts and GEICO, as GEICO is a member of the rest of the world, but also discharged the entire world, which includes Brethren. Therefore, even though Betts and GEICO were released, the UM claim was not preserved, because Brethren was released as well.

Obviously, upon entering into a settlement with a person injured in an accident, the alleged tortfeasor and his liability carrier are entitled to be released from liability stemming from the accident. The statutory language does not limit the number of people or entities the injured person may release, however. It simply says that the injured person’s rights against the UM carrier are preserved even after the alleged tortfeasor and his carrier have been released. If the injured person releases the alleged tortfeasor, his liability carrier, and all mankind, then all mankind—including the UM carrier— has been released.

By executing a general release of all other persons, firms or corporations, Buckley released her claims relating to the accident against everyone, including her contract claim against Brethren.3 This Court cannot and should not adopt a strained *614and legally incorrect interpretation of the language of the Release or the language of Insurance section 19-511 to save Buckley’s contract claim against Brethren. The contract claim could have been protected, but was not.

. The majority opinion refers to the Release as ''boilerplate,” as if the language of the Release does not matter. Releases, like many other legal documents, often are on forms. The fact that a legal document is a form document does not make its language inoperative or not meaningful.

. We further explained that the statutory violation is not equivalent to a consent by the UM carrier to the insured's accepting the offer, however, which, under Maurer v. Pennsylvania National Mutual Casualty Insurance Co., 404 Md. 60, 945 A.2d 629 (2007), results in the UM carrier's conceding to the liability of the alleged tortfeasor. Kritsings, at 377-79, 984 A.2d 395.

. In this case, if all other things had been equal but Buckley had not executed a general release, the proper disposition of this appeal would be a remand to the circuit court for a trial on Buckley's breach of contract claim against Brethren. Because the UM clause in Buckley's automobile insurance policy requires Brethren to indemnify her for damages for injuries sustained as a consequence of the wrongful acts of *614an uninsured or underinsured motorist who is not insured to her level of coverage, and because Brethren neither consented to nor refused to consent to Buckley’s accepting the GEICO settlement offer, to prevail on her breach of contract claim Buckley would have to prove Betts’s tortfeasor status, i.e., that he failed to adhere to reasonable standards of care in the operation of his motor vehicle, thus causing her injuries and damages. Brethren could have defended on the issue of Betts's tortfeasor status at trial. See Kritsings v. State Farm, supra.