(dissenting). The statement of facts contained in the majority opinion accurately sets forth the events which took place below.
The majority concludes that the release executed by plaintiff in favor of Total Health Care operated to release Dr. Sarin as well. They base their decision on Drinkard v William J Pulte, Inc, 48 Mich. App 67; 210 NW2d 137 (1973), which held that the release of either a master or servant from liability operates to release the other from liability where liability is based on the doctrine of respondeat superior. Assuming that the decision in Drinkard, supra, is still viable following the 1974 amendment to the contribution statute, MCL 600.2925b; MSA 27A.2925(2), I cannot agree that the trial court was correct in granting defendant’s motion for accelerated judgment.
The pleadings filed by Total Health Care alleged that no master-servant relationship existed between Dr. Sarin and Total Health Care. That allegation was further supported in other parts of the record. In my opinion, the foregoing created an issue of fact concerning whether Total Health *619Care’s liability was based solely on the doctrine of respondeat superior. Where a factual issue exists, it is improper for the trial court to grant a motion for accelerated judgment. Tonegatto v Budak, 112 Mich App 575, 579; 316 NW2d 262 (1982).
In addition to the foregoing, even assuming that Total Health Care’s liability was predicated on a respondeat superior theory, it appears that not all of Dr. Sarin’s contact with plaintiff occurred while he was acting on behalf of Total Health Care. It appears that, after plaintiff visited Total Health Care, Dr. Sarin had her transferred to St. Joseph’s Hospital where she was operated on. Plaintiffs follow-up care was also performed by Dr. Sarin. In my opinion, an issue of fact was created concerning whether acts of independent negligence were performed by Dr. Sarin outside of the agency relationship, if any existed, with Total Health Care. This theory avoids the Drinkard, supra, rule. Witucke v Presque Isle Bank, 68 Mich App 599, 611; 243 NW2d 907 (1976).
I would reverse the trial court’s ruling and remand for trial on the merits.