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Lujan v. Healthsouth Rehabilitation Corp.8/28/1995
portion of the $100,000 settlement obtained from Jaramillo reasonably is attributable to the original injury. Absent evidence affirmatively establishing such an amount, the entire $100,000 must be set off against any judgment obtained against Healthsouth.
28. Conclusion. We conclude that the phrase "arising from the January 27, 1990, automobile accident" is unambiguous and does not include Lujan's malpractice claims against Healthsouth. When, as in this case, no articulable theory exists under which the releasee will either be exposed to liability to a third party or be subject to harassment as a litigant, the releasee must use specific language indicating that he or she also is bargaining for the release of another tortfeasor. A releasee may, of course, bargain for the release of a tortfeasor to whom the releasee will not be liable. But if this is the result for which the named releasee bargains, then it is incumbent on that releasee to make this intention very clear in the language of the release.
29. This case also would be reversible under the rebuttable presumption that only specifically designated persons are discharged by a general release. As stated when we recently adopted that presumption in Hansen , ___ N.M. at ___, ___ P.2d at ___, however, that rule is applicable only in those cases in which the issue is preserved. The issue was not raised here and thus we decline to decide this case under that rule.
30. Having held that the trial court erred and that the general release unambiguously barred only those claims against unnamed persons whose liability arises from negligence that caused the automobile accident (not some subsequent event), we need not address Lujan's argument that her affidavit established an ambiguity in the terms of the release. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion.
31. IT IS SO ORDERED.
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