(dissenting)—I must respectfully dissent from the majority opinion which holds, in effect, that words amounting to no more than encouragement, urging, or simple persuasion can invalidate completely a written agreement.
The majority relies upon the definition of undue influence found in Restatement of Contracts § 497 (1932), which states:
Where one party is under the domination of another, or by virtue of the relation between them is justified in assuming that the other party will not act in a manner inconsistent with his welfare, a transaction induced by unfair persuasion of the latter, is induced by undue influence and is voidable.
Gerimonte's comments amount to nothing more than an expression that, in his opinion, Case's insurance company would probably pay the bills and there was no reason for her to worry about it. Where is the evidence Case was "under the domination" of Gerimonte? What in the record will support a claim by Case that she was justified in assuming Gerimonte would not act in a manner inconsistent with her welfare? Gerimonte was obviously making arrangements to facilitate collection of his fees. His statements to her did not involve medical treatment. The release had nothing to do with the number of treatments, the charges therefor, or any other aspect of the relationship other than a simple assignment to Gerimonte of Case's rights to medical payments by Farmers Insurance Company. This was purely a business transaction, where the physician/patient relationship is relevant only as background.
The majority also cites In re Infant Child Perry, 31 Wn. App. 268, 272-73, 641 P.2d 178 (1982), which quotes from Restatement (Second) of Contracts § 177, comment b, at 491 (1981), as follows:
The ultimate question is whether the result was produced by means that seriously impaired the free and competent exercise of judgment. Such factors as the *618unfairness of the resulting bargain, the unavailability of independent advice, and the susceptibility of the person persuaded are circumstances to be taken into account in determining whether there was unfair persuasion, . . .
The central issue is the requirement of "unfair" persuasion. What is there about Gerimonte's statements to Case that amounts to unfair persuasion? The record here is not only lacking evidence of "unfair" conduct by Gerimonte, but there is nothing unfair or overreaching about the transaction itself. If Case was going to be treated by Geri-monte, she would be primarily liable for the reasonable cost of those treatments, whether any written document was signed or not. If she has some insurance coverage, so much the better. Gerimonte, however, was not seeking anything other than the assignment to him of her cause of action against Farmers Insurance Company for medical payments. He was not seeking anything in addition to payment for his services. He did receive an advantage in the form of a promise to pay attorney's fees in the event of suit, but that alone would not, in my view, be material evidence on the issue of undue influence. Moreover, if the "ultimate question" is whether Case executed the assignments because Gerimonte employed "means that seriously impaired [her] free and competent exercise of judgment", Perry, at 272 (quoting Restatement (Second) of Contracts, supra), I would hold, as a matter of law, that there is no evidence here to support such a finding.
The real basis for the majority's opinion, it would appear, is that, given the existence here of a physician/patient relationship, an "inference" of undue persuasion must be drawn in favor of Case, the nonmoving party in the summary judgment proceeding. That inference, not having been rebutted by Gerimonte, the majority reasons, remains as an unresolved issue of material fact, and hence summary judgment was inappropriate.
I am mindful of the rule on summary judgment that the facts must be viewed in the light most favorable to the nonmoving party. However, even given that judicial pre*619cept, I must conclude that no inference of undue persuasion can be drawn from the facts of this case. Consequently, Case's evidence was not sufficient to place the burden on Gerimonte to demonstrate the nonexistence of undue persuasion. In my view, summary judgment is the correct result.
The disturbing aspect of the majority opinion is that it opens wide the door for a contracting party to attempt to invalidate a written contract based on nothing more than a claim that she was persuaded to sign the contract. The evidence here shows nothing more than the urging, encouragement, or persuasion that will occur routinely in everyday business transactions.
Mrs. Case signed the release on four occasions—July 22, August 5, 18 and 22. There is no claim of undue influence in connection with any release other than the one signed on July 22.
I would rule as a matter of law on the facts before the court in this case that the affidavit filed by Case does not raise a material issue of fact on the issue of undue influence.
For these reasons, I respectfully dissent.
Appeal dismissed by Court of Appeals February 20, 1986.