dissenting.
As I believe a genuine issue of material fact exists as to whether the Release and the Covenant were executed under circumstances amounting to mutual mistake, I respectfully dissent.
“A release, like any other contract, is subject to avoidance by a showing that its execution resulted from . . . mutual mistake of fact.” Cunningham v. Brown, 51 N.C. App. 264, 269, 276 S.E.2d 718, 723 (1981). A mistake of fact occurs if a release fails to accomplish the result intended by the parties to the release,2 Id. at 273-74, 276 S.E.2d at 726. Thus, if affidavits are submitted which would permit a finding that the parties to the release intended to release only a certain party or individual, but the actual release contains “language contrary to this mutual agreement and intention in that by its terms it released other joint tortfeasors as well,” a genuine issue of fact is raised precluding entry of summary judgment. Id. at 273, 276 S.E.2d at 726. Although it may be determined at trial “ ‘that the weight of the evidence compels the conclusion that the language of the release instrument must prevail or that [the release] is consistent with the intention of the parties, the existence of [a] genuine issue of fact precludes a determination of the matter upon the record.’ ” Id. (quoting Evans v. Tillett Bros. Constr. Co., 545 S.W.2d 8, 12 (Tenn. App.), cert. denied (Term. 1976)).
In this case, Plaintiff stated in her affidavit that, as part of the settlement agreement with Hart and Westport, she “signed a Release and Settlement Form . . . that released Roderick Hart and Westport Corporation from further liability.” At no time did Plaintiff “agree to, nor did [she] intend to release Ford Motor Company, Sam Johnson’s Lincoln Mercury, Inc. or TRW, Inc” from liability. Moreover, Jack Chappell (Chappell),3 an insurance adjuster for Crum & Forster *52Insurance Company (the insurance company that insures Westport and its employees acting within the course and scope of their employment), stated in his affidavit that the settlement was reached “on behalf of Westport Corporation and Roderick Hart.” Moreover, at the time the Release was signed, it was not the “intention of Crum & Forster Insurance to include in the Release . . . any other company or corporation not specifically mentioned therein.” Crum & Forster did not intend “to absolve Ford Motor Company, Sam Johnson’s Lincoln Mercury, or TRW, Inc.” from liability. Viewing this evidence in the light most favorable to Plaintiff, I believe a genuine issue of fact exists as to whether the Release was executed under circumstances amounting to mistake of fact.4 Accordingly, summary judgment was improperly granted.
. As a general proposition, the parties to a release are the releasor, the one who releases her claim, and the releasee, the one who is released from the claim. If a release is secured for the releasee by his insurance representative, the insurance representative is a party to the release, in lieu of the releasee.
. The majority finds “persuasive” Ford’s argument that “Plaintiff failed to show mutual mistake because she failed to submit any evidence that Hart and Westport — the *52other parties to the Release — were mistaken as to the effect of the Release.” I disagree. Hart and Westport were not parties to the Release. In any event, this Court has held that sufficient evidence of mutual mistake exists where the plaintiff and the insurance acljuster for the defendant’s insurance company submit affidavits alleging mutual mistake, even without evidence from the releasee. See Cunningham, 51 N.C. App. at 274, 276 S.E.2d at 726 (affidavit by plaintiff-wife was sufficient to raise a genuine issue of fact); see also Peede v. General Motors Corp., 53 N.C. App. 10, 13-17, 279 S.E.2d 913, 916-17 (affidavits of plaintiff, his wife, and the insurance acljuster were sufficient to raise a genuine issue of material fact), disc. review denied, 304 N.C. 196, 285 S.E.2d 100 (1981).
. Although the Covenant did not specifically exclude Sam Johnson’s and TRW, Plaintiff and Chappell both have stated in their affidavits that neither intended to release Sam Johnson’s and TRW from liability. Accordingly, a genuine issue of material fact also exists as to whether the Covenant was executed under circumstances amounting to mistake of fact.