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filed: February 4, 1987.


Appeal from Order of the Court of Common Pleas, Civil Division, of York County, No. 83-S-4458.


William B. Anstine, Jr., York, for appellant.

Rebecca N. Tortorici, York, for appellee.

Cirillo, President Judge, and Cavanaugh, Wickersham, Rowley, Wieand, Olszewski, Del Sole, Popovich and Johnson, JJ. Popovich, J., files a concurring opinion. Johnson, J., files a concurring opinion in which Cavanaugh, J., joins. Del Sole, J., files a concurring and dissenting opinion.

Author: Wieand

[ 360 Pa. Super. Page 600]

In this amicable action for declaratory judgment, submitted on an agreed statement of facts, the trial court was asked to determine whether Fireman's Insurance Company of Newark, New Jersey (Fireman's) was liable to its insured, Kenneth J. Sparler, for underinsured motorist coverage. The trial court entered judgment in favor of the insurance company, and Sparler appealed. We affirm.

The agreed statement of facts disclosed that Sparler had sustained personal injuries as a result of an intersectional, vehicular accident in which a vehicle operated by Thomas Garber had violated the mandate of a stop sign. Sparler's losses were in excess of forty thousand ($40,000.00) dollars. He settled his claim against Garber for twenty-five thousand ($25,000.00) dollars, this being the limit of the liability of Garber's insurance carrier under the terms of its policy. In connection with the settlement, Sparler and his wife executed a general release. Sparler then made a claim against Fireman's, his own insurance carrier, for underinsured motorist benefits. Fireman's denied liability. The parties thereafter commenced an amicable action for declaratory judgment, requesting the trial court to determine whether the insurance policy issued by Fireman's rendered it liable to Sparler for underinsurance benefits, and if so, whether the general release executed in connection with the third party settlement operated to bar Sparler's recovery of such benefits from his own insurance carrier. The trial court held that although the insurance policy did establish Sparler's right to recover underinsurance benefits, he was precluded from recovering the same because of the terms of the general release which he had executed when he settled his third party claim. Therefore, judgment was entered in favor of Fireman's.

[ 360 Pa. Super. Page 601]

On appeal, Sparler contends that because the general release which he had executed in favor of the third party tortfeasor was not intended to affect the contractual liability of Fireman's, the release could not operate to bar his recovery from Fireman's of underinsurance benefits. We agree with this contention.

Written releases are construed according to the rules governing the construction of contracts generally. 76 C.J.S. Release ยง 38 (1952). A release normally covers only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Estate of Bodnar, 472 Pa. 383, 387, 372 A.2d 746, 748 (1977); In re Jones & Laughlin Steel Corp., 328 Pa. Super. 442, 456-457, 477 A.2d 527, 534 (1984); Gateway Center Corp. v. Merriam, 290 Pa. Super. 419, 425, 434 A.2d 823, 826 (1981). The intention of the parties to a written release is paramount, and in construing a release, a court should adopt an interpretation which, under all of the circumstances, "ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished." General Mills, Inc. v. Snavely, 203 Pa. Super. 162, 168, 199 A.2d 540, 543 (1964). See: Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., 327 Pa. Super. 99, 107, 475 A.2d 117, 121 (1984). Although a court will not relieve the parties of the effect of an improvident contract, it must not allow a "rigid literalness" to be used to create an improvident contract for the parties contrary to their intent. Mowry v. McWherter, 365 Pa. 232, 238, 74 A.2d 154, 158 (1950). Thus, the words of a release "should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated." Brill's Estate, 337 Pa. 525, 527, 12 A.2d 50, 52 (1940). See: Furtek v. West Deer Township, 19 Pa.D. & C.2d 169, 178, aff'd, 191 Pa. Super. 405, 156 A.2d 581, 585 (1959).

The general release executed by Sparler and his wife in the instant case provided as follows:

[ 360 Pa. Super. Page 602]

That we Kenneth Sparler and Jane Sparler, . . . for the sole consideration of Twenty-Five Thousand dollars ($25,000.00), to us in hand paid, receipt whereof is hereby jointly and severally acknowledged, have remised, released, and forever discharged and . . . do hereby remise, release and forever discharge Thomas H. Garber and his . . . successors and assigns . . . and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting, and to result, from an accident which happened on or about the 30th day of April 1983 . . . .

These terms were contained in a standard release form. In the blank space provided on the form for the name of the party being released and discharged, the name "Thomas H. Garber" had been inserted. Although the phrase "and all other persons, firms and corporations" appeared in boilerplate print following Garber's name, the release did not otherwise suggest or identify Fireman's as a party being released or discharged. The only reasonable interpretation of the release, when it is considered in light of the circumstances surrounding its execution, is that Sparler did not intend to release Fireman's from its contractual obligation. Fireman's was not a party to the release, did not negotiate to reduce any obligations which it might have had under the policy, and paid no consideration to be released from any such contractual obligations. To interpret the release as discharging Fireman's alleged contractual obligations, under these circumstances, would be to insert a benefit for which no separate consideration was paid and which does not appear to have been within the contemplation of the parties.

The trial court's broad interpretation of Sparler's general release was based upon a decision of the United States District Court for the Eastern District of Pennsylvania in

[ 360 Pa. Super. Page 603]

    had not relieved Aetna of its contractual obligation. Recognizing that the intention of the parties was the ultimate test for determining the effect of a release, the Court analyzed the facts underlying the execution of the instrument.

Aetna was not a party to the litigation giving rise to the Release nor was it privy to the defendant tort-feasors. Its obligation to pay medical expenses to Jacquelyn Bailey [the plaintiff] was then in dispute and her claim in the litigation was not only against different persons but was also in tort as distinguished from the present claim on contract asserted against Aetna.

Bailey v. Aetna Casualty and Surety Co., supra at 820. Under these circumstances, the Court concluded, "[i]t would require a degree of judicial agility of which we are incapable, to read into this Release any intention on the part of plaintiff to release her claim for medical expenses against Aetna under its policy of insurance." Id.

We find the reasoning followed in Cingoranelli and Bailey to be persuasive and, therefore, we adopt it as our own. We conclude that in the absence of unequivocal language to the contrary, a general release of a third party tortfeasor will not be held to discharge the separate contractual obligation of an insurance carrier to provide underinsurance benefits.

In the instant case, the general release executed by Sparler in favor of the third party tortfeasor did not contain language unequivocally discharging Fireman's from its alleged contractual obligation to provide underinsurance coverage to Sparler. Thus, contrary to the conclusion reached by the trial court, any right to underinsurance benefits which Sparler might have acquired by virtue of the contract was not relinquished by the release which he had executed in favor of the third party tortfeasor.

Although the trial court's reasoning regarding the release was incorrect, it does not follow that its order disallowing the recovery of underinsurance benefits must be reversed. We are required to affirm the judgment entered by the trial

[ 360 Pa. Super. Page 606]

    court if it was correct for any reason. E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Gwinn v. Kane, 465 Pa. 269, 279 n. 12, 348 A.2d 900, 905 n. 12 (1975); Green v. Juneja, 337 Pa. Super. 460, 464 n. 5, 487 A.2d 36, 39 n. 5 (1985); Emerick v. Carson, 325 Pa. Super. 308, 316 n. 2, 472 A.2d 1133, 1137 n. 2 (1984).

Fireman's argued in the trial court and again on appeal that Sparler was not entitled to underinsurance benefits under the terms of its policy. The trial court concluded, however, that there was coverage and that Sparler was entitled to recover the difference between his expenses of forty thousand ($40,000.00) dollars and the twenty-five thousand ($25,000.00) dollars which he was able to recover from the third party tortfeasor. The amount of this difference, of course, was fifteen thousand ($15,000.00) dollars. This requires that we examine the terms of the policy.

Part 6 of the policy issued by Fireman's provided for "Uninsured (and Underinsured) Motorist" coverage. The amount of the coverage provided was fifteen thousand ($15,000.00) dollars for each person and thirty thousand ($30,000.00) dollars for each accident. The policy provided:

By "uninsured motor vehicle" we mean a land motor vehicle . . .

(a) with no bodily injury liability bond or policy applying at the ...

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