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Gossinger v. Association of Apartment Owners of Regency of Ala Wai8/25/1992
as a mistake relating to a past or present fact. The majority opinion modifies Silva in part as follows:
In any event, we hold that a mistake, whether mutual or unilateral, as to the nature or extent of an injury is not a proper basis for rescinding a release when the party seeking rescission has initiated and urged settlement of his or her personal injury claims (or has not otherwise been improperly induced into settlement by an unfair claim settlement practice) and has signed the release knowing that he or she is not completely cured and is aware that the injury may require future treatment.
Majority Opinion, at 11-13 (footnotes omitted).
We recognize that the majority's statement of what is not a proper basis for rescinding a release should not be construed as stating any more than that. Specifically, it should not be read as authority that the opposite is true, i.e., that what is not mentioned is a proper basis for rescinding a release. Even with such a restrictive interpretation, however, we disagree that
a mistake, . . ., as to the nature . . . of an injury is not a proper basis for rescinding a release when the party seeking rescission has initiated and urged settlement of his or her personal injury claims (or has not otherwise been improperly induced into settlement by an unfair claim settlement practice) and has signed the release knowing that he or she is not completely cured and is aware that the injury may require future treatment.
Majority Opinion at 11-12 (footnote omitted).
In our view, (1) absent an unfair claim settlement practice, the question of who initiated and urged settlement is not material; (2) the majority's answer to the question of whether the injured party's unilateral mistake is sometimes and/or always sufficient is unnecessary obiter dicta; and (3) after the injured party has been advised by a medical expert reasonably qualified to diagnose the nature of the injured party's injury that the nature of the injured party's injury has been diagnosed to a reasonable degree of medical probability, it is not unreasonable for an injured party to settle knowing that he or she is not completely cured and that the injury will require future treatment. Therefore, we offer the following holding, which in reality is a proviso to the third "midway" approach:
The injured party's mistake as to the nature of the injured party's injury is not a proper basis for the injured party's rescission of the injured party's release where the release was issued before the injured party was advised by a medical expert reasonably qualified to diagnose the nature of injured party's injury that the nature of the injured party's injury had been diagnosed to a reasonable degree of medical probability.
Under the "midway" approach as modified, the Gossingers do not qualify for rescission.
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