dissenting:
Defendant is asking that a summary judgment be entered against plaintiff and, therefore, under settled Delaware law, plaintiff is entitled to the benefit of all reasonable factual inferences from the record. Given such inferences, there is, in my view, a genuine issue of material fact concerning plaintiff’s intention at the time the release was delivered to State Farm Fire and Casualty Company. Outboard Marine Corporation, the defendant in this case, was not a party to that release nor to any of the negotiations which preceded it.
Plaintiff’s affidavit and the affidavit filed by her attorney imply (if they do not directly state) that plaintiff did not intend to include Outboard Marine in the release she gave to State Farm. Indeed, on the same day that plaintiff’s attorney delivered the release to State Farm, he sent to Outboard Marine a comprehensive letter outlining plaintiff’s claim against it based on strict liability in tort. As far as Outboard Marine is concerned, that was surely not just a “subjective intention” on plaintiff’s part. On the contrary, Outboard Marine was put on notice of the claim asserted against it by plaintiff, independent of the release. And State Farm, to whom the release was given, is not complaining that plaintiff had failed to manifest to State Farm that she preserved her claim against Outboard Marine. In short, it seems to me that Outboard Marine has not met its burden to show that on unquestioned facts plaintiff and State Farm were agreed that the release also ran to Outboard Marine.
On this state of affairs, a material question of fact is present and, in any event, “it seems desirable to inquire thoroughly into [all the facts] in order to clarify the application of the law to the circumstances.” Ebersole v. Lowengrub, Del.Supr., 180 A.2d 467, 470 (1962). I would therefore reverse the judgment of the Superior Court and remand the case for trial.
Respectfully, I dissent.