Barry v. University of Alaska

FABE, Chief Justice,

with whom CARPENETI, Justice, joins, dissenting.

I disagree with the court’s decision because I believe that a reasonable person would have understood the release to waive Barry’s right to assert his three claims against the University.

In Philbin v. Matanuska-Susitna Borough, we held that in determining whether a release bars a claim, “the focus is on what a reasonable person would have understood the release language to have meant.”1 The release of claims and covenant not to sue signed by Barry was expansively worded:

In consideration of the University -of Alaska’s taking such administrative steps as are necessary to enable the position held by Dr. Douglas K. Barry to qualify under the University’s current statutorily authorized Retirement Incentive Program, Dr. Barry hereby releases the University of Alaska ... from, any and all claims ... knoum or unknown, past, present, or future, arising out of or directly or indirectly or in any way connected with his employment with the University prior to July 1, 1997, including but not limited to those relating to tenure, retirement or other employee benefits ....
This Release of Claims and Covenant Not to Sue is entered into by Dr. Barry knowingly and voluntarily, with full under*1028standing of its consequences, following an opportunity to obtain independent review by legal counsel of his own choosing.

(Emphasis added.)

In my view, a reasonable person would interpret the plain language of this broad release to mean what it says: that Barry released all claims arising out of his employment and retirement in exchange for the University taking the administrative steps necessary to enable Barry to receive RIP benefits. In Alyeska Pipeline Service Co. v. Shook, we concluded that an Alaska Wage and Hour Act claim against a former employer was barred by a separation agreement in which the employee released the employer “from any and all claims ... known or unknown, fixed or contingent, which EMPLOYEE may have or claim to have arising from his employment or as a result of this separation of employment.” 2 Barry’s release contains similarly broad language. The fact that neither Barry’s final retirement benefit nor the twenty years of service were actually discussed in the settlement negotiations or expressly listed in the release agreement does not alter my conclusion that the release bars Barry’s claims.3 Barry signed a general release covering all claims, known and unknown, just as the employee in Alyeska Pipeline did, and this broad language indicates the parties’ intent to settle all possible claims connected to Barry’s employment prior to July 1,1997.4

Moreover, Barry’s claims relating to his years of service were “ ‘reasonably ascertainable’ at the time of executing the settlement.”5 In Martech Construction Co. v. Ogden Environmental Services, Inc., we held that although the contractor’s alleged breach of contract occurred after the settlement, it was the last step in a dispute that existed prior to settlement, and the settlement sought to resolve the entire transaction and thus barred the claim.6 We explained that “[t]he claim ... was an issue which was ‘reasonably ascertainable’ at the time of executing the settlement” and “Martech should have anticipated that the ... issue would be resolved by the settlement along with the entirety of the contractual relationship.”7 When executing the settlement with the University, Barry could reasonably have ascertained that a dispute could arise about his years of service and the final dollar amount of his benefits, given the complexity of the calculations and his irregular terms of service. This is particularly the case because: (1) as the employee, Barry was in the best position to know that he had actually worked about two years less than the statements erroneously indicated, (2) the statements indicated that the periods of service were subject to verification, and (3) the statements indicated that the employee should notify the employer of any discrepancies. Even if Barry could not himself calculate the exact number of years he had worked or the dollar amount to which he was entitled, he could have inserted into the release a provision reserving his right to sue over discrepancies in the dollar amount based on his years of service; because he did not, he has lost that right.8

*1029I agree with the court that if by virtue of the release agreement itself, or a separate contract incorporated by reference into the release or entered into contemporaneously with the release, the University promised Barry $3,388.90 per month in retirement benefits, then that payment would be part of the quid pro quo, and the release would not bar a claim that such a contract was breached.9 But Barry has offered no evidence indicating that the University entered the release with the intent to resolve a dispute over his years of actual service as opposed to his eligibility for the RIP. As Barry himself points out in his reply brief, the dispute leading to the release related “not [to] the question of whether he would have twenty years of service required to qualify for retirement, but on whether a cost saving would accrue to the University” by granting Barry RIP benefits.

And Barry has not offered adequate evidence that such a promise or separate retirement contract existed, much less that it was entered into contemporaneously with the release agreement or that it was incorporated by reference into the release. The only document mentioning the $3,388.90 figure is the December 1996 Division of Retirement and Benefits computer-generated statement projecting Barry’s retirement benefits, but this does not evidence the University’s intent to enter into a retirement contract with Barry for that amount. It expressly states that “the above projection of your benefits is an estimate only[,] based on service and earnings reported to the system throughout your career. Your actual benefit amount may differ somewhat at retirement because it will be based on employer verified service and earnings.” Because of the conditional language in this statement, Barry had reason to know it was not an offer for a specific dollar amount;10 thus, he could not rely on the statement as a promise to pay him $3,388.90 per month.11 Moreover, the December 1996 Division of Retirement and Benefits statement projecting Barry’s retirement benefits was sent out seven months before the parties signed the release agreement. The language of the release indicates that neither a specific monthly retirement benefit nor calculation of that benefit based on a specific number of years of service was contemplated by the parties.

Finally, the court faults the University for failing to refute in its motion for summary judgment Barry’s claim that he had an agreement with the University to retire with a specific benefit. But by attaching Jean Sagan’s affidavit to its motion for summary judgment, the University satisfied its burden of making a prima facie showing that the release did not contain a promise to pay *1030Barry a specific dollar amount.12 Sagan’s affidavit states: “The pre-litigation settlement offer by the University did not involve any guarantees or assurances to Barry by the University as to what monthly retirement benefit Barry would receive from the State of Alaska.” 13 Barry has not met his burden of setting forth evidence that reasonably tends to dispute Sagan’s statement.14 In support of his opposition to the University’s motion for summary judgment, Barry offered a two-paragraph affidavit authenticating the attached TRS and University records. However, that affidavit does not squarely assert that the University specifically promised Barry that he would receive a particular stream of income. Rather, it refers only to Barry’s “belief he would receive retirement benefit[s] of $3,388.90 per month because he had put in twenty years with the University.” Because Barry’s subjective belief alone is insufficient to establish that he had a contract for a specific dollar amount,15 Barry’s affidavit does not adequately dispute Sagan’s affidavit. As a matter of law, then, the evidence offered by Barry does not support a theory that the University contemporaneously formed a valid contract to pay Barry a specific retirement amount each month or that the release agreement itself contained or incorporated such a promise. Because Sagan’s affidavit satisfied the University’s burden of establishing a prima facie case that the University did not enter into a contract to pay Barry a specific retirement benefit, and because Barry did not adequately respond to this evidence, the superior court properly granted summary judgment to the University.

For these reasons, I believe that all of Barry’s claims are barred by the release, and I respectfully dissent.

. 991 P.2d 1263, 1266-67 (Alaska 1999).

. 978 P.2d 86, 88 n. 2, 89 (Alaska 1999); see also Martech Constr. Co. v. Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1151-52 (Alaska 1993) (holding that settlement agreement purporting to cover "claims of any nature whatsoever" between contractor and subcontractor acted to bar subsequent claim to recover amount paid by subcontractor to third-party supplier of switchgear).

. See Martech, 852 P.2d at 1150 n. 8 ("[T]he fact that the switchgear was not discussed cannot be interpreted as a positive inference that the release was not intended to address it.”).

. See Alyeska Pipeline Serv. Co., 978 P.2d at 89 ("The parties’ broad language reveals an intention to resolve all possible claims arising from Shook’s employment.”); see also Martech, 852 P.2d at 1152 ("The broad language used implies that claims not specifically contemplated are settled.”).

. Martech, 852 P.2d at 1151-52 (quoting Petroleum Sales, Ltd. v. Mapco Alaska, Inc., 687 P.2d 923, 930 (Alaska 1984)).

. Id. at 1151.

. Id. at 1151-52 (quoting Mapco, 687 P.2d at 930).

. See Alyeska Pipeline Serv. Co., 978 P.2d at 89 ("[A]ny claims not specifically reserved must be considered settled by the agreement.”); Martech, 852 P.2d at 1152 ("The broad language used implies that claims not specifically contemplated are settled.... There are no catch-all phrases to *1029preserve omitted claims as there are to abandon them.”).

. See, e.g., Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1289 (Alaska 2001) (holding that pri- or release agreement did not bar subsequent claims that employer violated settlement agreement itself).

. See Copper River Sch. Dist. v. Traw, 9 P.3d 280, 283 (Alaska 2000) ("Section 26 [of the Restatement of Contracts] informs us that ‘[a] manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.’ ”) (quoting Restatement (Second) of Contracts § 26 (1981)); Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997) ("The formation of a valid contract requires an offer encompassing all essential terms, unequivocal acceptance by the offeree, consideration, and an intent to be bound.”); Restatement (Second) of Contracts § 33(3) (1981) ("The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.”).

. See Perreca v. Gluck, 295 F.3d 215, 225-26 (2d Cir.2002) (“To the extent that plaintiffs suggest that this statement of projected benefits alone constituted a promise supporting their claim of promissory estoppel, we reject their claim ... [i]n light of the prominent disclaimer printed on the statement that specifically cautioned Perreca that '[a]ctual benefits are ... subject to verification before any payments are authorized'.... ”); Simonds v. N.Y. State Teachers’ Ret. Sys., 42 A.D.2d 470, 349 N.Y.S.2d 140, 143 (N.Y.App.Div.1973) ("Respondents were not estopped from lowering petitioner's benefits since their original statement to him was an estimate only and expressly based upon an assumption which proved to be untrue.”); see also Galanthay v. N.Y. State Teachers’ Ret. Sys., 50 N.Y.2d 984, 431 N.Y.S.2d 472, 409 N.E.2d 945, 946 (1980).

. See Himschoot v. Dushi, 953 P.2d 507, 509 (Alaska 1998) ("The moving party has the entire burden of proving that his opponent’s case has no merit.”) (citation and quotation marks omitted).

. In addition, the University attached to its opposition to Barry's motion to strike, and to its reply to Barry's opposition to its motion for summary judgment, an affidavit from Amy Clifford, which states: "I did not inform Barry that he would have twenty (20) years of credit service at UA at the end of FY97 without the three (3) RIP years. The three (3) RIP years were used in my calculation to get Barry to twenty years of service at the end of FY97.... I never suggested to Barry what the amount of his retirement benefit would be from the State of Alaska. That is a calculation which the State performs, not UA.”

. See Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 586 (Alaska 2001) ("The non-movant is required, in order to prevent entry of summary judgment, to set forth specific facts showing that [s]he could produce admissible evidence reasonably tending to dispute or contradict the mov-ant's evidence, and thus demonstrate that a material issue of fact exists.”) (alteration in original) (citation and quotation marks omitted); Martech, 852 P.2d at 1149 n. 7 ("[A]n adverse party may not rest upon mere allegations, but must set forth specific facts showing that there is a genuine issue of material fact. To create a genuine issue of material fact there must be more than a scintilla of contrary evidence.”) (citations omitted).

.See, e.g., Boone v. Frontier Ref., Inc., 987 P.2d 681, 686 (Wyo.1999) ("Boone's subjective belief that he could not be discharged unless just cause existed was insufficient to create a contract for continued employment.”).