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In re All Kelley & Ferraro Asbestos Cases12/30/2004
raph 13-"each CCR member company shall be liable under this Settlement Agreement only for its individual share of such payments as determined under the Producer Agreement"-creates several liability only when the CCR has followed the terms of the Producer Agreement in allocating each member's individual share. And they subsequently point to three main instances where the member companies allegedly failed to adhere to those terms. Their argument continues that without a clear articulation of individual shares and because the settlement agreement does not specify the individual amounts owed by each company, the claimants have no basis to assert a claim against any one company; and under those circumstances, the law permits the agreement to be enforced jointly and severally among the member companies.
{ } The claimants' assertion regarding the CCR's failure to properly make a final share allocation for each member prior to each installment is not well taken. The record shows they knew of and agreed with the share allocation procedure as set forth in the Producer Agreement and that they were aware that the Producer Agreement expressly conferred no rights to third parties. Further, the individual share allocation of a member does not affect the nature of the promises made by the member companies in paragraph 13 of the settlement agreement, as will be further developed.
{ } As is evident, we must decide whether the member companies promised separate and limited performances to pay their respective shares or whether they promised the same performance to pay the entire estimated amount of $120 million. In the first of these alternatives, each member company would be responsible only for its individual promise and could not be held liable for the obligations of others, while in the second, each would be responsible for the whole performance. See 12 Williston on Contracts (4th Ed.1999) 611-612, Section 36:1; see, also, Reliant Energy Servs., Inc. v. Enron Canada Corp. (C.A.5, 2003), 349 F.3d 816, 823.
{ } Corbin on Contracts explains that " he question whether two or more promisors have promised a single undivided performance, or have each promised a limited and separate performance, is wholly a problem of interpretation. The question is merely what was the performance promised and who promised it." 9 Corbin on Contracts (Interim Ed.2002) 625, Section 926; see, also, Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, where a plurality of this court considered the evidence and circumstances surrounding an oral settlement to ascertain the parties' intent regarding joint and several liability. Therefore, although a promise by two or more promisors generally suggests that the same performance, and not separate performances, will be rendered, the parties' intent controls. See 2 Restatement of the Law 2d, Contracts (1981) 407, Section 288(1).
{ } With this reference, we acknowledge that "a settlement agreement is a contract designed to terminate a claim by preventing or ending litigation," and that the construction of a written contract is a question of law, which we review de novo. Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc. (1996), 74 Ohio St.3d 501, 502, 660 N.E.2d 431; Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684; Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146, paragraph one of the syllabus.
{ } In construing the terms of a written contract, the primary objective is to give effect to the intent of the parties, which we presume rests in the language that they have chosen to employ. Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Oh
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