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Courtway v. Brand1/11/2005
Opinion Vote: REVERSED.
Cohen, P.J., and Knaup Crane, J., concur.
Opinion:
Cheryl Jordan (Defendant Jordan) appeals from the dismissal of her claim against Douglas Brand, Jr. (Defendant Brand) for personal injuries arising out of an automobile accident. The trial court determined that a previous release dated October 20, 2003 was a general release which released Defendant Brand from Defendant Jordan's cause of action for personal injury . On appeal, Defendant Jordan argues the trial court erred in dismissing her claim because the release (1) was not clear and unambiguous, (2) contained mutual mistakes of fact justifying rescission, and (3) released only those claims arising out of an accident on February 6, 2000. We reverse.
This case arises out of a multi-car accident which occurred on February 6, 2000 on Missouri Highway 21, in Washington County, Missouri, between Defendant Jordan, Defendant Brand, Jody Wilson (Defendant Wilson), and William Cook (Defendant Cook). Ronald Courtway, Dana Decker, and Linda Prater (collectively referred to as Plaintiffs) were all passengers in Defendant Jordan's automobile. Winifred Courtway was also a passenger in Defendant Jordan's automobile. As a result of the accident, Winifred Courtway died at the scene.
Plaintiffs initially filed a wrongful death action against Defendants Cook, Wilson, and Brand alleging, among other things, numerous acts of negligence against all three defendants. Thereafter, Defendant Brand filed a third-party claim against Defendant Jordan seeking contribution. Plaintiffs amended their claim and filed a claim for wrongful death against Defendant Jordan as well. Defendant Jordan filed a counterclaim for personal injuries against Defendant Brand and cross-claims against Defendants Cook and Wilson.
Prior to trial, Plaintiffs settled their claims against Defendants Cook, Wilson, and Jordan, but proceeded to trial against Defendant Brand after the trial court had denied Defendant Brand's motion for summary judgment.
Thereafter, Defendant Jordan settled her claim against Defendant Cook and entered into a release with Defendant Cook which specifically released him from liability. On October 20, 2003, Defendant Jordan settled her claim against Defendant Wilson and signed another release (the Release). A copy of the Release was provided to Defendant Brand.
On October 27, 2003, Thomas Buckley, attorney for Defendant Wilson, received a telephone call from Mark Akers, attorney for Defendant Jordan, notifying Mr. Buckley that Cheryl Jordan was rescinding the Release she had previously signed. On the same day, the day of trial, Defendant Brand filed a motion to dismiss Defendant Jordan's counterclaim against him and filed a motion to amend his answer arguing that the Release of Defendant Wilson signed by Defendant Jordan was a general release that released Defendant Brand from all liability for Defendant Jordan's injuries. The trial court continued the trial and ordered the parties to brief the issues with respect to the motion to dismiss and return to argue the motion. At the hearing on Defendant's motion to dismiss, Defendant Jordan presented an affidavit prepared by Thomas Buckley, which accepted the rescission of the Release by Defendant Jordan. Following the hearing, the trial court dismissed Defendant Jordan's counterclaim for personal injuries against Defendant Brand. This appeal follows.
We need not address Defendant Jordan's points relating to the language and effect of the Release, because we find the parties mutually rescinded the Release.
A release should be construed as a contract. Liquidation of Professional Medical Ins. C
Page 1 2 Missouri Personal Injury Attorneys
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