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Swenson v. Raumin8/18/1998
Filed 8/18/98 by Clerk of Supreme Court
Dissent filed.
Peter Swenson, Plaintiff and Appellant and Sally Swenson, Plaintiff v. Jerry Raumin and Roger Raumin, a co-partnership, doing business as Raumin Brothers, and doing business as MRTJ Potato Warehouse, Defendants and Appellees
Appeal from the District Court for Walsh County, Northeast Judicial District, the Honorable Thomas K. Metelmann, Judge.
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
[ ] This is an appeal from a summary judgment dismissing Peter Swenson and Sally Swenson's action against Peter Swenson's employers, Jerry Raumin and Roger Raumin, doing business as the Raumin Brothers and MRTJ Potato Warehouse, to rescind a settlement agreement and collect damages for personal injuries sustained by Peter Swenson in a work-related farm injury. We conclude the trial court did not err in granting summary judgment dismissal of the Swensons' action because they did not present any evidence to satisfy the reasonable diligence requirements for rescission under N.D.C.C. § 9-09-04. We therefore affirm.
I.
[ ] On January 31, 1986, Peter Swenson injured his hip and back when he slipped and fell while working at the Raumin Brothers' potato warehouse in Grafton. On April 11, 1986, a little more than two months after his injury and initial hospitalization, Peter Swenson signed a "Settlement and Full and Final Release of All Claims" for $2,400 offered to him by an insurance adjustor. The settlement agreement "forever discharge " the Raumin Brothers from "all known and unknown" damages resulting from the January 31, 1986, accident, and the parties acknowledged "the injuries sustained may be permanent and progressive and . . . recovery therefrom is uncertain and indefinite." In May 1986, Peter Swenson learned from medical professionals his "neck vertebrae was cracked." In October 1986, about six months after signing the release, Peter Swenson underwent major surgery to correct the injury to his vertebrae resulting from the accident, incurring medical costs in excess of $30,000. After the surgery, his treating physician assessed Peter Swenson as having a 13 percent permanent partial impairment rating.
[ ] In January 1992, almost six years after the accident, Peter Swenson and Sally Swenson brought this action against the Raumin Brothers. Peter Swenson requested rescission of the settlement agreement and sought more than $250,000 in damages. Sally Swenson sought more than $50,000 on her separate claim for loss of consortium.
[ ] The trial court granted the Raumin Brothers' motion for partial summary judgment on Peter Swenson's rescission action. The court concluded the settlement agreement Peter Swenson signed was a "complete settlement of all claims against" the Raumin Brothers arising out of the January 31, 1986, accident and all injuries sustained by Peter Swenson were known to him by May 1986. The court further concluded Peter Swenson had failed to make restitution of the amount received as consideration for the settlement agreement and failed to explain the delay of nearly six years in seeking rescission. The court therefore concluded Peter Swenson was not entitled to rescission of the settlement agreement because he had failed to comply with the reasonable diligence requirements for rescission under N.D.C.C. § 9-09-04.
[ ] The trial court, on its own motion, granted a N.D.R.Civ.P. 54(b) certification, but we dismissed the Swensons' prior appeal from the partial summary judgment because the Rule 54(b) certification was improvidently granted. See Swenson v. Raumin, 520 N.W.2d 858 (N.D. 1994). A jury later rejected Sa
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