filed the following dissenting opinion, in which Hammond, J., concurred.
I do not agree that the release in this case barred recovery on the medical payments claim against the Insurance Company. In effect, the insurer executed two contracts, one to defend or indemnify the insured against liability for damages recoverable by an injured party by reason of the insured’s negligence, and another, for a separate premium, to pay directly to a passenger, as a third party beneficiary, any medical expenses incurred up to $1,000, regardless of negligence. The cases recognize that there can be a double recovery on each separate undertaking. See Severson v. Milwaukee Auto. Ins. *341Co., 61 N. W. 2d 872 (Wis.); Truitt v. Gaines, 199 F. Supp. 143 (D.C. Del.); note 42 A.L.R. 2d 983. In 8 Appleman, Insurance Law & Practice § 4896, p. 349, it is said that since recovery under a medical payments clause “is completely independent of liability on the part of the insured, insurance under the medical indorsement clause is closely akin to a personal accident policy.” Thus, if the suit against the insured had been pressed to judgment, and the judgment paid, this would not have barred another recovery under the clause sued on. Cl. Baltimore Transit Co. v. Harroll, 217 Md. 169, 175, and Plank v. Summers, 203 Md. 552, 556.
The majority opinion relies upon the generality of the language of the release. It is a question of the intent of the contracting parties, based not solely on the words employed but upon the surrounding circumstances. See Williston, Contracts, (Rev. ed.) § 1825; Restatement, Contracts § 403 comment (a).
It should be borne in mind that the whole suit against the insured was predicated upon the negligence of the insured and the insurer was not a party thereto. The language of the release as to other persons “liable or who might be claimed to be liable * * * on account of all injuries” could not fairly include the insurer who was not directly liable to the injured party, except under the medical payments claim. The settlement of the pending suit would not in and of itself affect the insurer’s independent undertaking. At least, I find the phrase sufficiently ambiguous to justify its restriction to the cause of action which was the subject of settlement. I find support for this view in the cases of Butcher v. United Elec. Coal Co., 174 F. 2d 1003 (C.A. 7th), and Buckley v. Basford, 184 F. Supp. 870 (D.C. Me.) See also 76 C.J.S. Release, § 51, p. 697, and 45 Am. Jur. Release, § 28, p. 693. Moreover, it is stipulated that the medical payments clause was never discussed in connection with the settlement, and that the appellant if present would testify she had no intention of releasing it. There was at least a unilateral mistake, and a not unreasonable one under the circumstances.
Both sides rely upon the case of Barbour v. State Farm *342Mutual Automobile Ins. Co., 141 A. 2d 924 (D. C. Mun. Ct. of A.). While that case is closely in point the court, in sustaining the effectiveness of a general release, relied strongly upon the fact that the release specifically named the insurer, and that the settlement check specifically apportioned the sum paid between the bodily injury and medical pay coverages. Neither of these facts exist in the case at bar, and as I read the Barbour case, in the absence of these factors, the decision would have been otherwise.
Judge Hammond authorizes me to say that he concurs in 4he views here expressed.