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ROGER VERMILYA v. NATIONWIDE MUTUAL INSURANCE COMPANY (09/19/80)

filed: September 19, 1980.

ROGER VERMILYA, APPELLANT,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY



No. 258 October Term, 1979, Appeal from Order of the Court of Common Pleas of Lycoming County, Civil Division, at No. 77-2844 of 1978.

COUNSEL

Norman M. Lubin, Williamsport, for appellant.

Richard A. Gray, Williamsport, for appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Watkins, J., concurs in the result.

Author: Cercone

[ 280 Pa. Super. Page 505]

This appeal calls into question the legal efficacy of a release for personal injuries sustained by plaintiff-appellant when his motorcycle collided with a vehicle operated by appellee's insured. An equitable action was brought by appellant to set aside this release on the grounds of mutual mistake. The chancellor, finding this case indistinguishable from that of Emery v. Mackiewicz, 429 Pa. 322, 240 A.2d 68 (1968), denied appellant's prayer for rescission of the release and entered a decree nisi dismissing the complaint. Appellant's exceptions thereto were denied and final judgment was entered. This appeal followed.

[ 280 Pa. Super. Page 506]

The chancellor's undisputed findings of fact may be summarized as follows: On March 17, 1977, the parties executed a release agreement whereby appellant, in essence, released and discharged appellee for all injuries known and unknown stemming from the accident which occurred on July 3, 1976. The consideration for the release was $15,000.00 and appellee's agreement to reimburse appellant for all medical expenses incurred within one year of the execution of the release. Appellant sustained multiple injuries in the accident the most serious of which appeared to be a compound fracture of the leg accompanied by extensive swelling. Appellant's physician, an orthopedist, was of the opinion that the gross swelling of the leg was a normal concomitant or symptom of the recovery process and, accordingly, authorized appellant to return to work on February 28, 1977.*fn1 Unfortunately, unbeknownst to the physician and all the parties, the swelling was not simply a normal adjunct of the healing process. Rather, it was subsequently learned that the fracture sustained by appellant in the accident had caused thrombophlebitis-an inflammation of the veins in the leg-a serious*fn2 condition which would persist in the future and which had not been contemplated by the parties when the release agreement was signed.

Prior to negotiating the release, appellant had consulted with an attorney, but elected to proceed without legal representation. At the final settlement discussions, appellant was accompanied by his wife and uncle, and appellee was represented by its adjuster, who expressed his opinion that the settlement was a very good one in view of the doctor's prognosis of a complete recovery for appellant. The chancellor found that the adjuster was not being deceptive in so expressing himself, but rather that he also was laboring

[ 280 Pa. Super. Page 507]

    under a mistaken belief as to the extent of appellant's injuries.

In addition, the chancellor found that appellant had difficulty in expressing himself and understanding the questions propounded to him; that the negotiations focused upon the extent of appellant's injuries and not liability; and that appellant was not in a position to return the $15,000.00 that he had received from appellee.

Viewing the foregoing facts in light of our Supreme Court's decision in Emery v. Mackiewicz, supra, the chancellor felt constrained to deny appellant's request for rescission. In Emery, the plaintiff, being of the belief that he had suffered a simple neck muscle strain in an automobile accident, agreed to release defendant for all claims, both known and unknown, in consideration of $350.00. Less than two months after signing the release, the plaintiff discovered that he had in fact suffered a ruptured disc. In plaintiff's trespass action the jury specially found that at the time the release was executed both parties were unaware that plaintiff had sustained a disc injury in the accident. A special verdict was entered in favor of plaintiff and defendants appealed. On ...


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