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Finch v. Kabana3/22/1990
THOMAS F. BRYANT, Judge.
This is an appeal from a judgment of the Court of Common Pleas of Allen County granting the motion of defendant-appellee, Paul Kabana, for summary judgment.
Barbara Finch, Ronald's wife, originally named a party plaintiff in the complaint, has been dismissed from the action by separate entry and is not a party to this appeal.
On approximately January 28, 1985, appellee and appellant, Ronald Finch, were involved in an automobile accident. Appellant suffered bodily injury and damage to his automobile.
Appellant filed a complaint on November 21, 1986 for his personal injuries arising from the accident. On January 5, 1988, appellee filed a motion for summary judgment asserting the defense of a release. The motion was supported by an affidavit executed by appellee's claims adjuster who obtained the release. Appellant filed a reply to the motion for summary judgment asserting by affidavit that the release was only for accrued medical expenses and wages lost to date.
The trial court granted appellee's motion for summary judgment. It is from this judgment appellant now appeals asserting one assignment of error.
Appellant's sole assignment of error is:
"That the trial court erred and abused its discretion in granting defendant-appellee's motion for summary judgment."
Summary judgment is controlled by Civ.R. 56(C), which states in part:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added.)
"In requesting a summary judgment under Civ.R. 56, the moving party has the burden of showing that no issue exists as to any material fact." State v. Licsak (1974), 41 Ohio App.2d 165, 70 O.O.2d 325, 324 N.E.2d 589, syllabus. "A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whosthe motion for summary judgment is made." Civ.R. 56(C). The party opposing the motion for summary judgment is entitled to have the evidence or stipulation construed most strongly in his favor.
The evidence in support of appellee's motion for summary judgment consists of the release document and the claims adjuster's affidavit. Appellant's evidence against the motion for summary judgment consists of the appellant's affidavit, appellant's deposition, appellant's wife's deposition, and appellant's written statement to the insurance agent.
Appellee claims that the release was properly executed by appellant with his full understanding of the contents. Appellant claims that he believed he was signing a document required for him to receive compensation for his then accrued medical expenses and lost wages only.
The trial court reached the following determination:
"Specifically, the court finds that it is uncontroverted that Ronald D. Finch executed a release on March 19, 1985 for the damages he sustained as a result of an automobile collision on January 28, 1985. The release is clear and unambiguous and inures to the benefit of '* * * Erie Insurance Group hereafter referred to as the releasee(s), and any and all other persons, * * which I/we now have or may hereafter have * * *." Mr. Finch plainly released Mr. Kabana under
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