Appeal from the Order entered April 24, 1985 in the Court of Common Pleas of Lehigh County, Civil, No. 83-C-1669.
James J. McCabe, Philadelphia, for appellant.
Jeffrey R. Dimmich, Allentown, for appellee.
Wickersham, McEwen and Johnson, JJ.
[ 354 Pa. Super. Page 460]
We here reverse the order granting summary judgment in favor of appellee Clara Hausman. The eminent hearing judge has accurately described the occurrence which underlies this litigation:
On June 17, 1981, Richard Kibler was driving a motor vehicle owned by Robert Stewart in which Janice Iman was a passenger. The said motor vehicle was proceeding north on Route 100/29 near Woodlawn Drive and Tollgate Road, Lehigh County, Pennsylvania, at an allegedly high rate of speed. Kibler lost control, left the highway and struck a tree resulting in the death of both Janice Iman and Kibler.
Robert Stewart, the owner of the vehicle involved, was insured by United States Insurance Group (hereinafter USIG). After negotiations with USIG, appellant executed a general release in favor of both Robert Stewart, the owner of the vehicle, and the Estate of Richard Kibler, releasing both Stewart and the Kibler Estate from all liability in consideration of the payment of the sum of $15,000, the amount of the liability limits of the insurance policy issued by USIG upon the Stewart vehicle. When appellant sought further counsel, that attorney discovered that Richard Kibler had been living with his grandmother, Clara Hausman, that the grandmother maintained an automobile insurance policy, and that coverage in the amount of $100,000/$300,000 might be available under the omnibus clause of that policy. Appellant, therefore, commenced an action in trespass
[ 354 Pa. Super. Page 461]
against the appellee estate which subsequently filed an amended answer and new matter, raising as a defense the release agreement of April 12, 1982, by which appellant had released both Robert Stewart and the Estate of Richard Kibler from all liability. Appellant in reply asserted (1) that the release had been executed under a mutual mistake as to the amount of insurance available at the time of execution of the release, and (2) that the release had been obtained through misrepresentation, namely, that at the time of the execution of the release it had been represented to appellant that the total amount of insurance available at that time was $15,000. The pleadings complete, appellee filed a motion for summary judgment.
The court granted the motion, after comparing the present issue of after discovered coverage to claims for after discovered injuries, and ruled that the instant release should not be set aside for the same reasons that a release may not be set aside due to after discovered injuries. As valid as this comparison may initially appear, we are, most respectfully, compelled to disagree with that rationale and the consequent ruling.
Our courts have proceeded to the summary rejection of after discovered injury claims by reason of the fact that the document of release which the claimant there seeks to void specifically provides that the claimant, in consideration of the payment of a stated sum, specifically releases the tortfeasor from any and all claims for any and all injuries suffered, whether known or unknown or discovered after execution of the release agreement. Thus, the possibility that the injuries might be more serious than realized at the time of the execution of the release agreement or the possibility that conditions may arise in the future as a result of the tort in question, are specifically covered by the bargain and agreement of release. The release that is the subject of this litigation, ...