dissenting.
Respectfully, I dissent.
The majority opinion rewards and discharges a wrongdoer who made no attempt to contribute or to settle. This is truly a windfall absolution for the tortfea-sor who will not share making reparation to his prey. Moreover, a trap was set for the unwary and innocent Appellant thus preventing his receiving full compensation.
Personal injury releases are contracts whereby the victim party accepts monetary consideration and agrees in return to forego claims against the tortfeasor. Viewing the problem by the simple notion that most individuals are capable of managing their own affairs and generally should be able to freely enter into binding agreements, the circuit court erroneously made determinations about personal injury releases fully in accordance with the law of contracts. Conceptually this is insidious because of the grossly unbalanced bargaining positions between the insurance company and the injured party. Here we are not handling articles of commerce but the human mind and body.
Equitable principles should prevail because personal injury releases are not entered into freely. The insurance carrier commands more legal expertise and superior economic strength. Moreover, they possess the ability to continue negotiations for extended periods of time with an injured person who, due to economic necessity, is under pressure to bargain and to settle.
Courts of equity have always permitted the avoidance of releases in instances of fraud, misrepresentation, mutual mistakes of material facts, overreaching, oppression, or other evils. Forcing the victim to bear the burdens of fraud and mistake is manifestly harsh. Recently, courts have been even more liberal in applying the doctrine of rescission — setting aside the release by looking behind the writing to the substance of the release. This has been especially true where there is small consideration as against the value of the injury. Courts have resolved the essential question of whether the claim has been fully satisfied by looking to the intent of the parties, the amount paid, and other surrounding conditions and circumstances such as the nature of the injury, the intelligence and bargaining position of the parties, and the clarity of the fault issue.
Perhaps in this case the insurance adjuster was under such pressure from Kentucky Farm Bureau’s home office to settle the claims as quickly and inexpensively as possible due to the potential amount of exposure. This may explain why he used his subtle skills to overwhelm and disarm the innocent Appellant by failing to advise him that the release precluded all other claims. This Court should not sanction this custom of the insurance industry. Considering the whole record and the context of the inferences reasonably deductible therefrom concerning the obtainment of the settlements, the practices of insurance adjusters make Fagan’s curriculum, in comparison, seem as noble as the Ten Commandments. We should look to the effects of an insurance adjuster’s withholding information rather than the binding effect of sterile legal formalities.
The controlling test should be actual satisfaction and not a presumption of satisfaction by the mere fact of a settlement with one of the tortfeasors. Appellant’s affidavits clearly show that the insurance adjuster perpetrated a fraud when the adjuster failed to explain the release. *707Where, as in the ease at bar, the release cloaks inequity, the release should be vacated and held for naught.
Even in 1904, this Court in Louisville and Evansville Mail Co. v. Barnes' Adm’r, 117 Ky. 860, 79 S.W. 261 (Ky.1904), recognized the essential question to be whether the plaintiffs claim had been settled in full as determined by the intent of the parties, and intent itself is an issue of fact for the jury. More recently, the Florida Supreme Court in Stephen Bodzo Realty, Inc. v. Willits Int’l Corp., 428 So.2d 225 (Fla. 1988), avoided a result which it branded “manifest injustice” by refusing to release a joint obligor simply because a co-obligor had been released where no such dual release was intended. In Ayers v. Pastime Amusement Co., 259 F.Supp. 358, 360 (D.C.S.C.1966), the district court stated that the intent of the parties was the major controlling factor in determining whether an instrument was a full release. Furthermore, in Gronquist v. Olson, 242 Minn. 119, 64 N.W.2d 159 (1954), the Minnesota Supreme Court directed its attention to whether there was “full compensation” or “satisfaction in fact” and allowed suit even though one or more releases had been executed. The Alabama Supreme Court also addressed this issue in Morris v. Laster, 821 So.2d 923 (Ala.2001), where they noted that “Alabama law has long recognized the principle that a plaintiff injured by joint tortfeasors may accept a partial satisfaction and release from one or more of the tortfeasors and still maintain an action against the remaining tortfea-sors.”
The modern trend in interpreting the intent of the parties has been to scrutinize them by standards of fairness and justice and to inquire whether the release was fairly and knowingly given. In Breen v. Peck, 28 N.J. 351, 146 A.2d 665 (1958), the New Jersey Supreme Court held that release of one joint tortfeasor does not release others in the absence of an intention to do so or full compensation to the injured party. In so holding, the New Jersey Supreme Court said that parole evidence was admissible as bearing on both the question of intent and the sufficiency of compensation, and that the burden of showing intent to release both tortfeasors was on the party relying on the release. The New Jersey court did no more than join the thirteen other jurisdictions (California, Connecticut, Idaho, Kansas, Maine, Minnesota, Mississippi, Nebraska, New Hampshire, Oklahoma, Texas, Iowa and Wyoming) already having abrogated the treacherous conceptualism of the common law joint tortfeasor release rule, but the New Jersey court admirably rejected the rule with a very clear and unequivocal judicial fiat without going behind the form of the release by schemes of circumvention, evasion, or avoidance.
In Commonwealth, Department of Highways v. Cardwell, 409 S.W.2d 304 (Ky. 1966), this Court, speaking through Commissioner Davis, stated, “[sjurely it does not ask too much of draftsmen and others dealing in such instruments to have them say what is meant.” It should be remembered that the draftsman was not the agent of Appellant but was the insurance adjuster whom was representing the adverse interests. The dissenting opinion in Commonwealth, Department of Highways v. Cardwell, supra, encouraged flexibility on the part of courts in order to reach a just result without the dependence on the form of the release or the language used therein.
Where the true intentions of the parties can be gathered from the four corners of the instrument, whether a release or a covenant not to sue, resort should not be had to artificial reasoning and mere technicalities that hamper and interfere with the *708duty and capacity of the Court to adjudicate disputes and administer justice between the parties. The essential question is whether the plaintiffs claim has been satisfied; this is clearly a matter of the intent of the parties, to be determined in the light of the language of the instrument, the amount paid, and the surrounding circumstances.
Courts exist solely to do justice, and justice should be done. We are not dealing with an article of commerce but the human mind and body, still the most complicated and mysterious of all things that are upon or inhabit the earth. Here, mistakes are easily made and the consequences are more serious than in any other affairs of humankind.
WINTERSHEIMER, J., joins this dissent.