dissenting.
I respectfully dissent. In my view the majority errs in adopting and applying the rule of reasonable expectation in this instance. And, even more clearly, defendants were entitled to a summary judgment on the issue of release.
I.
I believe the settlement negotiated between Connecticut General, the executor of Sanchez’ estate, and the plaintiffs in this suit, to be dispositive of this action for recovery of proceeds of temporary life insurance. The settlement provided, in relevant part:
“[I]n consideration of this agreement and of the payment of $20,000 to [the executor], receipt of which is hereby acknowledged by [the executor], each of the parties hereto by this legal contract, individually and collectively, does hereby release and forever discharge Connecticut General Life Insurance Company, its successors or assigns, of and from all and any manner of action and actions, cause or causes of action, which has arisen or which may hereafter arise by reason of any application for, or policy of insurance on the life of Francisco V. (Paco) Sanchez.” (emphasis added)
In my view summary judgment for defendant should have been granted on the basis of this settlement agreement.
Contrary to the view of the majority, we can and should address this issue, even though the trial court granted summary judgment on a different theory. This is not an appeal of a denial of a summary judgment motion, which would be interlocutory in nature and not reviewable by this court. Nor is this an appeal of a denial of a summary judgment motion following a trial on the merits, which is also not reviewable. Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114 (Colo.1981). Rather, we are considering the granting of a motion for summary judgment, which is a final order and is reviewable. See Glennon Heights, Inc. v. Central Bank & Trust, 658 P.2d 872 (Colo.1983); C.A.R. 1(a)(1). In such a review, we are not limited to considering only those grounds for granting the motion which were found persuasive by the trial court. 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2716 (1983). Cf. Reynold v. United States, 643 F.2d 707 (10th Cir.1982), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981).
The instant action for proceeds of temporary insurance arose out of the “application for ... insurance on the life of Francisco V. (Paco) Sanchez” and is barred by the settlement agreement, signed by the plaintiffs and the executor, which released Connecticut General from any liability. A release results “in the total extinguishment of a pre-existing claim or right or lien or obligation.” Trustee Co. v. Bresnahan, 119 Colo. 311, 203 P.2d 499 (1949). See also Melo v. National Fuse & Powder Co., 267 F.Supp. 611 (D.Colo.1967).
The insurance application, signed by Sanchez and an exhibit in the prior federal case, referred specifically to the conditional receipt and potential temporary insurance. The application provided:
“I (We) have paid $5,000 to the agent or broker in exchange for the Conditional Receipt bearing the same number as this application, and I (we) hereby agree to the conditions thereof.” (emphasis added)
The application further provided:
“[N]o insurance shall take effect unless and until the policy has been manually delivered to and received and accepted by me (us) and the first premium paid dur*979ing the lifetime and good health of the proposed insured (except as provided in The Conditional Receipt bearing the same number as this application if a premium has been paid and acknowledged above and such Receipt issued).” (emphasis added)
While the conditional receipt had not been issued to Sanchez, its existence was clearly revealed in a document known to the Sanchez estate prior to the settlement of the federal suit.
Having reached a settlement based on the theory that the permanent insurance policy was in effect, plaintiffs cannot now contend they are entitled to recover on the theory that Sanchez was covered by temporary insurance, which was extinguished when the policy went into effect. To allow recovery here would be to hold that even if the $1,000,000 provided for in the insurance policy had been paid as the result of the prior federal suit, nevertheless, the obligation to pay $300,000 temporary insurance would still exist. The $20,000 settlement, wisely or not, was accepted in lieu of the right to pursue the suit against the insurer for the benefits under the policy.
II.
Also, I do not believe this to be the proper case in which to adopt and apply the rule of reasonable expectation as the majority has done.
I agree with the trial court’s conclusion that when Sanchez’ offer to purchase a “rated” policy of insurance was accepted, a contract for permanent insurance was created and the temporary insurance was terminated. In reaching this conclusion the trial court properly relied on United Savings Life Insurance Co. v. Coulson, 560 S.W.2d 211 (Tex.Civ.App.1977) and Novellino v. Life Insurance Co. of North America, 59 Del. 187, 216 A.2d 420 (1966). See also United Pacific Insurance Co. v. Truck Insurance Exchange, 273 Or. 283, 541 P.2d 448 (1975); U & I Properties, Inc. v. Republic Nat’l Life Insurance Co., 10 Wash.App. 640, 519 P.2d 19 (1974); Dunford v. United of Omaha, 95 Idaho 282, 506 P.2d 1355 (1973).
Here, Sanchez tendered $5,000, which purchased temporary insurance pending a contract for permanent insurance. At this point, he could reasonably have believed he was covered by temporary insurance. Upon acceptance of the contract for permanent insurance, the $5,000 was to be applied to the first annual premium owed. Sanchez was then told he could not be insured as a standard risk, but that he could be insured on a rated basis. He accepted Connecticut General’s offer for a rated policy, and tendered $41,300 to cover the remainder of the first annual premium due.
Having done so, Sanchez could believe that he was covered by the rated policy: he had been told he could purchase such a policy, and had tendered the first annual premium. It is difficult to perceive, however, how he could reasonably have believed that he was also covered by temporary insurance, since the $5,000 which had purchased temporary coverage had been applied to the permanent insurance policy payment.
The judgment should be affirmed.