specially concurring:
I concur with section II of the court’s opinion which holds that the general release in this case did not discharge those who were not parties to the release unless the releasers so intended. I also concur with the court’s conclusion that summary judgment should not have been granted in favor of Doctors Potter and Roth since *1057genuine issues of material fact remain. However, this case presents two separate issues of material fact regarding the scope of the release. First is the issue addressed by the majority: whether, under the “intent” rule held applicable today, the parties to the release intended to release the respondent doctors. Second, and not addressed by the majority, is the issue of material fact created by the difference between the terms of the release agreement and the district court’s order authorizing the agreement. On remand, the issue of the intent of the parties to the release need not be reached if the finder of fact determines that the district court’s order authorizing the agreement limited the scope of the release so as not to release the doctors. Therefore, I write separately to discuss the importance of this additional issue of material fact.
Manuel D. Neves II, in his individual capacity and as conservator of his son’s estate,1 and Deanna M. Neves executed an agreement that purported to release and discharge not only the hospital and its agents, but also “any and all other persons, firms or corporations” that might be liable for malpractice related to their son’s surgery. After executing the agreement, Manuel D. Neves II filed a petition with the district court seeking appointment as conservator of his son’s estate and requesting court approval of the settlement agreement and release. See § 15-14-401, 6B C.R.S. (1987) (detailing court’s power to appoint a conservator to oversee a minor’s estate and affairs). The district court held a hearing on the petition. At the conclusion of the hearing, the court appointed Manuel D. Neves II as his son’s conservator, and it issued an order authorizing the settlement agreement and directing the conservator to accept $17,000 on behalf of his minor son
in full and complete settlement of all claims of said minor and said conservator against Eisenhower Hospital, its successors and assigns, for any and all claims growing out of said accident and to execute a release.
The terms of the court order authorizing the release and directing payment are narrower than the terms of the release document executed by the Neves. Whereas the release agreement purported to release “any and all persons” liable for the malpractice, the district court's order provided only for the settlement of all claims against the hospital. The difference between the language of the release agreement and the terms of the district court’s order2 creates an issue of material fact as to the authorized scope of the release. If the effect of the district court order was to authorize a release only of the hospital and not the doctors,3 then the issue of whether the parties to the release intended that the doctors be released need not be reached. This factual issue of the authorized scope of the release cannot be resolved without a full evidentiary presentation regarding the circumstances surrounding the negotiation and execution of the release and the issuance of the district court’s order.
Because I view the differences between the terms of the release agreement and the district court’s order as creating a genuine issue of material fact regarding the authorized scope of the release, I would instruct the district court on remand to resolve this issue first to determine if it is necessary to reach the intent issue discussed by the majority. Since I agree that genuine issues of material fact remain, I concur in *1058the conclusion reached by the court that summary judgment was inappropriate.
JUSTICE ROVIRA joins in this special concurrence.. Neves executed the release as conservator of his son’s estate on September 20, 1978. He was not appointed conservator until September 28, 1978.
. The record indicates that the district court order was prepared by the Neves’s counsel.
. Additionally, it is not entirely clear that the malpractice described in the release and the court order includes any malpractice by the doctors in the use of the post-nasal pack. The release purports to cover "malpractice which occurred on or about August, 1974, at Colorado Springs, Colorado." In describing the malpractice to the court in the hearing on the approval of the release, counsel for Manuel D. Neves II said only that "the hospital nurse involved just did some wrong things,” presumably a reference to the morphine overdose. No mention was made of the post-nasal pack. The court order approving the release simply refers to the "accident,” and relies for further definition on the petition, which incorporates the release.