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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED
October 31, 2000
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2000 Term _____________ No. 27756 _____________

RELEASED
November 1, 2000
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

LOUIS J. KOPF, JR., Plaintiff Below, Appellant v. SCOTT LACEY, Defendant Below, Appellee

________________________________________________________________ Appeal from the Circuit Court of Ritchie County Honorable Robert L. Holland, Jr., Judge Civil Action No. 99-C-24 REVERSED AND REMANDED ________________________________________________________________ Submitted: October 4, 2000 Filed: October 31, 2000 Richard D. Dunbar, Esquire Myers, Powell & Dunbar Parkerburg, West Virginia Attorney for Appellant David A. Sims, Esquire Gregory R. Tingler, Esquire Elkins, West Virginia Attorneys for Appellee

The Opinion of the Court was delivered PER CURIAM. CHIEF JUSTICE MAYNARD dissents and reserves the right to file a dissenting Opinion.

SYLLABUS BY THE COURT

1. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2.

"`"A motion for summary judgment should be granted only when it is clear that

there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syl. Pt. 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3.

"The parol evidence rule may not be invoked by a stranger to a release." Syllabus,

Haymaker v. General Tire Inc., 187 W.Va. 532, 420 S.E.2d 292 (1992).

4.

"The execution of a general release in favor of the original tort-feasor or dismissal

with prejudice of a civil action against such tort-feasor is prima facie evidence of the intention of the injured party to accept the same as full satisfaction of all damages which naturally flow from the original injury, in the absence of language or circumstances in the release or dismissal indicating a contrary intention of the parties; but whether such release or dismissal is a bar to further action for malpractice against the treating physician or hospital providing care is a question of fact to be answered from the intention of the parties." Syl. Pt. 5, Thornton v. Charleston Area Med. Ctr., 158 W.Va. 504, 213 S.E.2d 102 (1975).
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5.

"To determine the intention of the parties with reference to release of successive

tort-feasors, the injured party is entitled to introduce parol evidence to explain the terms of a contract of release in favor of, or the circumstances attendant to a dismissal with prejudice of a civil action against, the original tort-feasor." Syl. Pt. 6, Thornton v. Charleston Area Med. Ctr., 158 W.Va. 504, 213 S.E.2d 102 (1975).

6.

"`[A] valid written instrument which expresses the intent of the party in plain and

unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.' Syllabus point 1, Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962)." Syl. Pt. 1, Melbourne Bros. Constr. Co. v. Pioneer Co., 181 W.Va. 816, 384 S.E.2d 857 (1989).

7.

"To enable the court to construe a deed or other writing, ambiguous on its face,

it is always permissible to prove the situation of the parties, the circumstances surrounding them when the contract was entered into and their subsequent conduct giving it a practical construction, but not their verbal declarations. But, if a latent ambiguity is disclosed by such evidence, such for instance as that the terms of the writing are equally applicable to two or more objects, when only a certain one of them was meant, then prior and contemporaneous transactions and collocutions [sic] of the parties are admissible, for the purpose of identifying the particular object intended." Syl. Pt. 2, Snider v. Robinett, 78 W. Va. 88, 88 S.E. 599 (1916).

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Per Curiam: This case is before the Court upon the final order of the Circuit Court of Ritchie County, granting summary judgment in favor of the Appellee, Scott Lacey. The circuit court found that a Release of All Claims agreement ("release") executed between the Appellant, Louis J. Kopf, Jr., and Barbara Lacey, Patrick Lacey, as well as their insurer, West Virginia Fire and Casualty Insurance Company, acted as a bar to the suit brought by the Appellant against the Appellee. Based upon a review of the parties' briefs and arguments and all other matters of record, we reverse and remand the lower court's decision for further proceedings consistent with this opinion. I. FACTS On May 19, 1997, the Appellee was cutting down a tree on property owned by his brother and sister-in-law, Patrick and Barbara Lacey, at their request. The Appellant walked with the Appellee up a hillside to show him where the tree was located. After the Appellee cut the tree down, the Appellant walked down the hillside. The Appellee proceeded to trim the limbs off of the trunk of the tree. He then rolled the tree approximately eighty feet down a hill. The rolling tree bounced off a rock and shifted direction from that originally intended by the Appellee. The shift in direction caused the tree to roll over the Appellant's leg, breaking the leg.

Subsequent to the incident, the Appellant made a claim for his injuries against Barbara and Patrick Lacey through their insurer, West Virginia Fire and Casualty Company. The Appellant also made a claim for his injuries against the Appellee, through his insurer, West Virginia Insurance Company. Both of these claims were made prior to the Appellant instituting civil action against the Appellee.
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The Appellant reached a settlement with Patrick and Barbara Lacey and their insurer for the amount of $18,000. The Appellant then filed a civil action against the Appellee on May 17, 1999. The Appellee had no knowledge of the settlement between the Appellant and Barbara and Patrick Lacey until after the civil suit against him was filed. Subsequent to the institution of the lawsuit against the Appellee, the Appellant, on June 2, 1999, executed a release reflecting that the Appellant does hereby forever release, acquit, and discharge Patrick Lacey, Barbara Lacey and West Virginia Fire & Casualty Company their subsidiaries, directors, officers, and all persons acting on behalf of the aforementioned entities, individually, and in their capacity as directors, officers, representatives, or otherwise, as to all claims asserted with respect to an incident occurring on May 19, 1997.

The Appellee filed a motion for summary judgment seeking dismissal of the action based upon the release executed as a result of the settlement the Appellant received from Patrick and Barbara Lacey and their insurer. The lower court refused to give any consideration to the affidavit of Gregory Schillace, the attorney who drafted the release, which was submitted by the Appellant in opposition to the summary judgment motion. In the affidavit, Mr. Schillace specifically states that "[t]he Release was never intended to release claims which Louis Kopf had against Scott Lacey from the May 19, 1997 accident which resulted in injuries to Louis Kopf." The circuit court considered the affidavit parol evidence and refused to admit it, stating that "[t]he Release of All Claims is not ambiguous and is not subject to judicial interpretation." The circuit court then granted the Appellee's motion for summary judgment and dismissed the action against the Appellee, ruling that "[t]he Release of All Claims agreement releases all claims that were asserted as a result of the incident occurring on the 19th day of May, 1997, including the claims asserted against Scott Lacey." It is this ruling that forms the basis for the present appeal.
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II. ISSUE The issue before the Court is whether the lower court erred in refusing to allow the admission of parol evidence because of its determination that the release was unambiguous and not subject to judicial interpretation. The Appellant argues that the circuit court's refusal to consider parol evidence, specifically the affidavit of Gregory Schillace, was plainly wrong. Further, the Appellant asserts that the circuit court's finding that the release in question was not ambiguous and was not subject to judicial interpretation was also plainly wrong. In contrast, the Appellee maintains that the circuit court did not err in granting the Appellee's motion for summary judgment, because there were no genuine issues of any material facts. Further, the Appellee argues that the circuit court did not err in refusing to consider the affidavit of Gregory Schillace because the release unambiguously expressed the intentions of the parties without resorting to parol evidence. III. DISCUSSION We are guided by the following standard of review in determining whether the lower court properly entered summary judgment in this case: "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Moreover, "`"[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syl. Pt. 2, Painter, 192 W.Va. at 190, 451 S.E.2d at 756.

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The Appellant first argues that the Appellee was not permitted to assert the parol evidence doctrine with regard to the affidavit at issue because the Appellee was a stranger to the release. The Appellant relies heavily upon this Court's decision in Haymaker v. General Tire Inc., 187 W.Va. 532, 420 S.E.2d 292 (1992), to support his position. In Haymaker, the lower court had granted summary judgment in favor of the appellees, General Tire, Inc., and Turnpike Ford, Inc., based upon a determination that a general release signed by the appellant, David Michael Matheny, settling his claim against the estate of Kevin D. Haymaker and Deanna L. Haymaker also released the appellees. The appellant was a passenger in a vehicle driven by Kevin D. Haymaker when a single vehicle accident occurred. Kevin D. Haymaker was killed as a result of injuries sustained in the accident. The appellant entered into a settlement agreement with the estate of Mr. Haymaker and Mrs. Haymaker and specifically released those two parties for $12,000 in consideration. Id. at 532, 420 S.E.2d at 292. The appellant later brought action against Turnpike Ford, Inc., the dealer who sold the vehicle to Mr. Haymaker's wife, as well as General Tire, Inc., the manufacturer of the tires on the vehicle. The appellant alleged that the accident was caused by a faulty left rear tire which exploded, causing Mr. Haymaker to lose control of the car. Id.

The appellees argued that the language of the release which provided that "`all other persons, firms or corporations liable or who might be claimed to be liable . . . [are released] from any and all claims, demands, damages, actions[,] causes of actions or suits of any kind or nature whatsoever'" released them as well and precluded the appellant's claim against the respective entities. Id. at 533, 420 S.E.2d at 293. The appellant sought to introduce the affidavit of a claims superintendent with Mr. Haymaker's insurer to show that "the release was only intended to release Mr. Haymaker, and was not
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intended to release any other person." Id. The trial court refused to consider the parol evidence.

In reversing the trial court's decision to preclude the admission of parol evidence, we held in the syllabus of Haymaker, that "[t]he parol evidence rule may not be invoked by a stranger to a release." Id. at 532, 420 S.E.2d at 292, Syllabus. We premised this holding, however, upon the lack of any type of relationship between the parties involved: Permitting the use of parol evidence to interpret a release in actions between a party to a release and a stranger thereto is also consistent with the rule in this jurisdiction that permits the use of parol evidence by an injured party to determine the intent of the parties to release successive tortfeasors in an agreement to release the original tortfeasor. See Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975). 187 W. Va. at 534, 420 S.E.2d at 294. We also found that the adoption of such a rule precluding a stranger to a release to invoke the parol evidence rule was consistent with West Virginia Code

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