dissenting:
I do not believe that in order to discharge other tortfeasors they must be designated by name or be otherwise specifically identified in the release. This is not what section 2(c) of the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(c)) provides. That section requires only that a release given to a tortfeasor does not discharge any other tortfeasor “unless its terms so provide ***.” The limitation of that statute, applied to the facts of this case, means only that the release given by plaintiffs Asup to tortfeasor Williams and his parents will not release anyone else by operation of law. That is, by virtue of the statute, the common law principle that the release of one joint tortfeasor releases all no longer applies. But under the statute, if the. terms of the release provide that others than the specific tortfeasor to whom the release is given are released, the release operates to release from liability more than just the one to whom the release is given. Nothing in the statute requires that the others released be identified by name or otherwise specifically identified. In this case, the release ran to the named individuals “and all other persons, firms and corporations both known and unknown.” Thus, the release did provide that it was to release others than those to whom it was given. Nothing in the statute prevents the giving of such a general release. I shall discuss this further later in this dissent.
A majority of the jurisdictions that have considered the question now before this court have reached a result contrary to that reached in the majority opinion. In those cases, general releases similar to that which we are considering here were held to be effective. The provisions of the statutes of those jurisdictions which provided that a release of one joint tortfeasor does not release other joint tortfeasors unless the release so provides were held not to require the other tortfeasors to be named or specifically identified. (See Johnson v. City of Las Cruces (1974), 86 N.M. 196, 521 P.2d 1037; Battle v. Clanton (1975), 27 N.C. App. 616, 220 S.E.2d 97; Peters v. Butler (1969), 253 Md. 7, 251 A.2d 600; Hasselrode v. Gnagey (1961), 404 Pa. 549, 172 A.2d 764; Liberty v. J. A. Tobin Construction Co. (Mo. App. 1974), 512 S.W.2d 886.) In a Federal case, Douglas v. United States Tobacco Co. (8th Cir. 1982), 670 F.2d 791, 794, the court stated that the majority of cases from other jurisdictions have held that language releasing any and all persons in addition to the named parties satisfies the “ ‘unless the release so provides’ ” provision of the uniform act. In addition to Peters v. Butler, Johnson v. City of Las Cruces, and Hasselrode v. Gnagey, cited above, the court in Douglas cites Morison v. General Motors Corp. (5th Cir. 1970), 428 F.2d 952, Doganieri v. United States (N.D. W. Va. 1981), 520 F. Supp. 1093, Stefan v. Chrysler Corp. (D. Md. 1979), 472 F. Supp. 262, affd (4th Cir. 1980), 622 F.2d 587, Fuls v. Shastina Properties, Inc. (N.D. Cal. 1978), 448 F. Supp. 983, Bonar v. Hopkins (W.D. Pa. 1969), 311 F. Supp. 130, aff’d (3d Cir. 1970), 423 F.2d 1361, and Dorenzo v. General Motors Corp. (E.D. Pa. 1971), 334 F. Supp. 1155.
The majority opinion relies on Beck v. Cianchetti (1982), 1 Ohio St. 3d 231, 439 N.E.2d 417, Alaska Airlines, Inc. v. Sweat (Alaska 1977), 568 P.2d 916, and Sage v. Hale (1973), 75 Misc. 2d 256, 347 N.Y.S.2d 416. In Alaska Airlines, Inc. v. Sweat, both the covenant not to sue and the order dismissing the case specifically stated that the settlement did not include a release of Alaska Airlines. Also, Alaska had previously rejected the common law rule and had held that a release of one tortfeasor did not release another unless such other tortfeasor was specifically named in the release. (Young v. State (Alaska 1969), 455 P.2d 889.) In Alaska Airlines, Inc. v. Sweat, the court was construing the language of that State’s uniform joint tortfeasor act which stated that a release or covenant not to sue does not discharge any other tortfeasor “unless its terms so provide.” The court simply followed its previous holding in Young v. State and reached the same conclusion it would have reached at common law. This holding is not convincing authority in support of the majority decision in ornease.
In Sage v. Hale and Beck v. Cianchetti, although professing to strike out in a new direction, each court attempted to buttress its holding that other tortfeasors are not released unless named or specifically identified with equitable considerations peculiar to the case before it. Such matters were used as the basis for attacking releases at common law prior to the Act. (Reede v. Treat (1965), 62 Ill. App. 2d 120, 129.) In Sage v. Hale the court stated that, “[a]s a matter of law, the broad language of the release in the present case, interspersed with additional verbiage on a printed form, does not satisfy the statutory requirement.” (Sage v. Hale (1973), 75 Misc. 2d 256, 258, 347 N.Y.S.2d 416, 419.) In Beck v. Cianchetti, the court stated that the statutory phrase “unless its terms otherwise provide” requires a release to expressly designate by name or otherwise specifically describe or identify any tortfeasor to be discharged. However, that court then pointed out that in the case before it the critical language “all other persons” was contained among the printed terminology of the release. The court emphasized that the person giving the release was only 19 years old and did not have the advice of counsel when the release was signed. The court then retreated from its holding that the release must designate by name or otherwise specifically describe or identify any tortfeasor to be discharged and states:
“Consequently, the insurance company has the burden of showing that the injured party understood the terminology and intended the release of the unnamed tortfeasors.” (Beck v. Cianchetti (1982), 1 Ohio St. 3d 231, 235, 439 N.E.2d 417, 420.)
It would therefore appear that if the insurance company could show that the injured person intended to release “all other persons” the release would operate as a general release. However, in the next paragraph the court appears again to reverse directions and stated:
“Broad general language, such as ‘all other persons,’ is not sufficient.” (1 Ohio St. 3d 231, 235, 439 N.E.2d 417, 420.)
Thus, in the three cases relied upon by the majority, there were extraneous reasons compelling the construction of the language of the Act as requiring that the tortfeasors released be named or otherwise specifically identified. We have no such extraneous circumstances in the case before us. Weighed against the cases I have cited above which hold contrary to the holding in this case, the majority opinion is not supported by very convincing authority and obviously adopts a minority view.
If this court has made this choice because of the concern that such “boilerplate” general language printed in the release may mislead a person into unwittingly releasing other joint tortfeasors, I call the court’s attention to the position taken by the Florida Supreme Court. In Hurt v. Leatherby Insurance Co. (Fla. 1980), 380 So. 2d 432, the court considered the language of the Uniform Contribution Among Joint Tortfeasors Act, which provides that a release does not release any of the other tortfeasors “unless its terms so provide.” The court stated, as I did above, that clearly this language is not a prohibition against a general release. The court stated that indeed the Uniform Act expressly authorizes the discharge of all tortfeasors. So long as the parties express their intent to discharge all possible tortfeasors, they are free to do so. The Florida court noted, however, that all-inclusive “boilerplate” language routinely included in a printed release may not reflect the intent of the parties and stated that the manifestation of intent must be more explicit than the signing of a form which in the printed material contains broad general-release language in addition to providing spaces where the names of the specifically discharged parties may be inserted. The court held that whether a printed general release is effective to discharge other than specifically named tortfeasors is a question of fact. The holding of the Florida court would obviate the equitable concern about the printed general-release language which seems to have influenced the decisions in Sage v. Hale and Beck v. Cianchetti.
I agree with the Florida court that there is nothing in the language of our statute which prevents an injured person from executing a general release, releasing all other persons so long as the terms of the release so provide and so long as it was the intent of the injured person to release the named tortfeasor and “all other persons.” If the general-release language is contained in a printed release form, I could hold, as the Florida court held, that extraneous evidence should be allowed as to the intent of the parties. Whether such a release is effective to discharge others than those specifically named should be a question of fact. I find further support for such a holding in the decisions of our appellate court rendered in considering the effect of a general release prior to the adoption of our contribution act. These holdings stated that it is the intention of the parties which controls the scope and extent of the release. Schrempf v. New England Mutual Life Insurance Co. (1982), 103 Ill. App. 3d 408, 413; Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694.
Such a construction would avoid the problems that are created by requiring the release to name or specifically identify those to be released. I am particularly concerned that such a rigid requirement will discourage the settlement of litigation because, under our statute, a tortfeasor who settles and executes a release is barred from contribution from another tortfeasor whose liability is not extinguished by the release. (Ill. Rev. Stat. 1981, ch. 70, par. 302(e).) Unless all claims of a plaintiff are extinguished against all the joint tortfeasors or against all possible joint tortfeasors, a defendant will be reluctant to settle, knowing that he surrenders a possible right to contribution against some known or unknown unreleased tortfeasor. Also, an attorney representing a defendant could possibly be subjecting himself to a claim for malpractice if he recommended that his client settle with a claimant, thereby surrendering a possible right to contribution. See Harris v. Rosen (1961), 28 Misc. 2d 968, 215 N.Y.S.2d 992.
For the reasons stated, I must respectfully dissent.
JUSTICE UNDERWOOD joins in this dissent.