Bjork v. Chrysler Corp.

ROONEY, Justice,

dissenting, with whom BROWN, Justice, joins.

The majority opinion correctly states the well-recognized common law relative to release of a joint tortfeasor; i.e., the release of one joint tortfeasor releases all. It correctly refers to the change in common law in Wyoming through the adoption of § 1-1-113, W.S.1977,1 a version of the Uniform Contribution Among Tortfeasors Act. And it correctly recognizes (1) that the release should be construed and interpreted to ascertain the intention of the parties, and (2) that this statute should be construed and interpreted to ascertain the intention of the legislature.

However, in its lengthy recital, the majority opinion fails to apply our well-recognized rules of construction to § 1-1-113 and to the release with which we are concerned in this case.2 It errs in finding ambiguity in § 1-1-113. It errs in finding ambiguity in the release. And it errs in finding ambiguity in the result when the two are read together. It errs in undertaking to legislate into § 1-1-113, the words “unless the other tortfeasors to be released are specifically identified” in lieu of the words “unless its terms so provide” as used by the legislature.

The majority opinion jumps from the premise that § 1-1-113 is designed to modify the common law to the conclusion that such modification must be intended to go much further than the limiting language used by the legislature, such language being plain, simple and easily understood in directing that the release of one tortfeasor does not release others “unless its terms so provide.” It would have been easy for the legislature to have said so if it intended to restrict the application of a release to those specifically named therein. It could have said so in so many words, but it did not. It opted to have the release apply to those as provided by the release terms. Our legislature expressly provided that a release of one tortfeasor does not release other tort-feasors “unless its terms so provide.” The plain and ordinary meaning of the language permits the terms of the release to provide discharge from liability to a specifically designated person or persons or orga*164nization or organizations, or to “all other persons, firms or corporations liable or who might be claimed to be liable” as done in this release.

The contrary holding of the majority opinion is not in accordance with precedent established by this court:

“ * * * [T]he intention and meaning of the legislature must be determined from the language of the statute itself and not from conjecture aliunde. * * * ” Mahoney v. L.L. Sheep Company, 79 Wyo. 293, 333 P.2d 712, 715 (1958).
“ * * * [Cjourts will not usurp the power of the legislature by deciding what should have been said * * *.” Barber v. State Highway Commission, 80 Wyo. 340, 342 P.2d 723, 725 (1959), citing State v. Hungary, 75 Wyo. 423, 296 P.2d 506 (1956); and State ex rel. Board of Com’rs of Laramie County v. Wright, 62 Wyo. 112, 163 P.2d 190 (1945).
“ * * * [Cjourts cannot supply omissions in a statute and will not read into a statute exceptions not made by the legislature. [Citations.]
" * * * [IJt is a universal rule that courts will not enlarge, stretch, expand or extend a statute to matters not falling within its express provisions. * * *
“ * * * [IJt is our duty to construe and enforce the law as enacted by the legislature, and not to make laws.” Lo Sasso v. Braun, Wyo., 386 P.2d 630, 631, 632 (1963).
“ * * * Intent must be found in the language of the statute itself. [Citation.] Where the language of a statute is plain and unambiguous and conveys clear and definite meaning, there is no occasion for resorting to rules of statutory construction; and the court has no right to look for and impose another meaning. [Citation.] The plain, ordinary and usual meaning of words used in a statute controls in the absence of clear statutory provisions to the contrary. [Citation.] Courts will not enlarge, stretch, expand or extend a statute to matters not falling within its [sic] express provisions. [Citation to Lo Sasso v. Braun, supra.] Courts will not usurp the power of the legislature by deciding what should have been said. [Citation to Barber v. State Highway Commission, supra.] * * * ” Board of County Commissioners of County of Campbell v. Ridenour, Wyo., 623 P.2d 1174, 1184, reh. denied 627 P.2d 163 ([Wyo]. 1981).
“ * * * First off, it is a well-established principle that in construing a legislative enactment we must, if possible, ascertain the intent of the legislature from the wording of the statute. * * * Also, words utilized in the statute are to be given their plain and ordinary meaning unless otherwise indicated. * * * ” Wyoming State Department of Education v. Barber, Wyo., 649 P.2d 681, 684 (1982). “ * * * We are guided by the principle that the court may not construe a statute in such a manner as will enlarge, stretch, expand or extend it to matters not falling within its express provisions. [Citations, including LoSasso v. Braun, supra.] It is our duty to ascertain the intention of the legislature as completely as possible from the language used in the statute itself. [Citations, including Wyoming State Department of Education v. Barber, supra.] * * * ” State Department of Revenue and Taxation, Motor Vehicle Division v. Andrews, Wyo., 671 P.2d 1239, 1246 (1983).

Our legislature has expressly provided that a release of one tortfeasor does not release other tortfeasors “unless its terms so provide.” The language should not be “enlarged” or “extended” or interpreted so as to read into it that which is not there, or to refer to that not “falling within its express provisions.” The language of the statute is plain and clear. It is not ambiguous. It is unnecessary to determine its meaning “from conjecture aliunde.” We should acknowledge the integrity and intelligence of the legislature and assume it would have so provided if it intended the result as legislated by the majority opinion.

Likewise, the language of the release does not require interpretation or construction. It is not ambiguous. It is simple and *165easily understood. It would be difficult to state more clearly the concept that every person or organization is released from any and all liability resulting from the accident and that the release was made voluntarily with such being fully understood.

The majority opinion sets forth the basic rules for construing or interpreting a contract by quoting the following from Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463, 465 (1980):

“Our basic purpose in construing or interpreting a contract is to determine the intention and understanding of the parties. [Citation.] If the contract is in writing and the language is clear and unambiguous, the intention is to be secured from the words of the contract. [Citations.] And the contract as a whole should be considered, with each part being read in light of all other parts. [Citations.] The interpretation and construction is done by the court as a matter of law. [Citations.]
“If the contract is ambiguous, resort may be had to extrinsic evidence. [Citations.] An ambiguous contract ‘is an agreement which is obscure in its meaning, because of indefiniteness of expression or because a double meaning is present.’ [Citation.] Ambiguity justifying extraneous evidence is not generated by the subsequent disagreement of the parties concerning its meaning. [Citation.]
«* * * whether ambiguity exists is a question of law. * ⅜ * ”

The release was signed with full knowledge of its contents. It recites tht its terms

“ * * * have been completely read and are fully understood and voluntarily accepted * * * for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.”

There is no ambiguity in either the statute or the release. The language is clear and plain in both of them. The expression is definite in both. The meaning is not obscure in either of them. There is not a double meaning in either of them. But the majority opinion attributes ambiguity to them when considered together. This cannot be. One cannot put two elephants together and have them be a donkey. The statute is clear and plain. The release is clear and plain. There is no ambiguity when they are read together.

The majority opinion quotes from and refers to nine cases from six other jurisdictions to support the contention that, under the Uniform Contributions Among Tort-feasors Act, a release which recites a discharge of all others liable or potentially liable for damages, etc. is effective only to discharge those specifically named in the release. The Uniform Contributions Among Tortfeasors Act was not involved in three of these cases: Young v. State, Alaska, 455 P.2d 889 (1969), was decided before Alaska adopted the Act; McMillen v. Klingensmith, Tex., 467 S.W.2d 193 (1971); and Duncan v. Cessna Aircraft Company, Tex., 665 S.W.2d 414 (1984). The two New York cases, Sage v. Hale, 75 Misc.2d 256, 347 N.Y.S.2d 416 (1973), and Rosano v. Lustgarten, 54 A.D.2d 758, 387 N.Y.S.2d 886 (1976), are not only opinions from the general trial court of Suffolk County (one concerned an appeal from an inferior court) but concern a General Obligations Statute, which provides that release of one joint tortfeasor does not release others “unless its terms expressly so provide” (emphasis added). It is noteworthy that our legislature chose to enact the Uniform Contribution Among Tortfeasors Act rather than the General Obligations Act which was preferred by some other states. The Wyoming choice resulted in an enactment in which the “unless” clause did not include the word “expressly.” Alaska had adopted the Uniform Contributions Among Tort-feasors Act before the decision in Alaska Airlines, Inc. v. Sweat, Alaska, 568 P.2d 916 (1977), a three-to-two decision, but the covenant not to sue construed in that case specifically stated that Alaska Airlines, Inc. was not discharged. The three remaining cases, Beck v. Cianchetti, 1 Ohio St.3d 231, *166439 N.E.2d 417 (1982), a five-to-two decision, Robertson v. McCarte, 13 Mass.App. 441, 433 N.E.2d 1262 (1982), and Alsup v. Firestone Tire & Rubber Company, 101 Ill.2d 196, 77 Ill.Dec. 738, 461 N.E.2d 361 (1984), a five-to-two decision, do involve the Uniform Contributions Among Tortfeasors Act and releases similar to the one in this case. These three cases came out about the same as the majority opinion in this ease, but neither these three cases nor the others referred to in the majority opinion designate wherein there is ambiguity in the statute, and none of them address the impropriety of judicial legislation in arriving at their conclusions. The dissent of Chief Justice Ryan, joined by Justice Underwood, in Alsup v. Firestone Tire & Rubber Company, supra, reflects the comparative holding of the several jurisdictions:

“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 Alsup 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 eases, 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 tort-feasor does not release other joint tort-feasors unless the release so provides were held not to require the other tort-feasors 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 Hassesrode [sic] 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, aff’d (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 (3rd Cir.1970), 423 F.2d 1361, and Dorenzo v. General Motors Corp. (E.D.Pa.1971), 334 F.Supp. 1155.” 77 Ill.Dec. at 742, 461 N.E.2d at 365.

*167The Wyoming cases cited and quoted from in the majority opinion do not sustain the conclusion there reached. The language quoted from Union Pacific Railway Co. v. Artist, 60 F. 365 (8th Cir.1894), decided before adoption of § 1-1-113, W.S. 1977, refers to a release given by Artist and the issue has to do with the scope of it as it pertains to him and not as it pertains to release of others. Harris v. Grizzle, Wyo., 599 P.2d 580 (1979), decided after adoption of § 1-1-113, concerned successive tortfeasors, but more important to its lack of pertinency to this case is the fact that the release specifically named the parties to be discharged from liability and did not purport to release, as third-party beneficiaries, "all other persons, firms or corporations liable or who might be claimed to be liable,” as here. Natrona Power Company v. Clark, 31 Wyo. 284, 225 P. 586 (1924), decided before adoption of § 1-1-113, held only that a covenant not to sue designated persons or organizations was not a release which would discharge other tortfeasors from liability. Coulter, Inc. v. Allen, Wyo., 624 P.2d 1199 (1981), decided after adoption of § 1-1-113, also, as in Union Pacific Railway Co. v. Artist, supra, involved the scope of a release as it pertained to the one receiving it and not to other persons or organizations.

I would affirm.

. Section 1-1-113, W.S.1977, provides:

"(a) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one (1) of two (2) or more persons liable in tort for the same injury or the same wrongful death:
"(i) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
“(ii) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”

. The release is quoted in fn. 2 of the majority opinion.