Patterson v. American Medical Systems, Inc. , 141 Or. App. 50 ( 1996 )

WARREN, P. J.,

dissenting.

When plaintiff settled the previous case he unambiguously released all future claims that he might have against defendant arising from any penile implant that defendant manufactures. Because the majority finds an ambiguity in the release that does not exist, I dissent from its decision.

The majority is correct that the primary motivating purpose for the release was to settle the case that was pending in 1988.¹ It is also correct that the first paragraph of the release, which describes the parties’ purpose in entering into the settlement, refers only to existing claims “that LOWELL A. PATTERSON has or might have asserted against AMS.” The majority errs by allowing that general purpose to override the express words of the operative paragraphs of the release.

The second paragraph that the majority quotes is the crucial operative paragraph of the release; in it the parties described the claims that they released in the third paragraph. In describing those claims, plaintiff stated that he accepted the settlement amount in full satisfaction of all claims “of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past, present or future” that were “in any way related” to his use of “any penile prosthetic device manufactured or sold by AMS, which he has or might have asserted against AMS now or in the future.” (Emphasis supplied.)

The majority states that these references to future claims concerning “any penile prosthetic device” might refer only to the existing claims mentioned in the recital clause. 141 Or App at 54. If that were the intended effect of the release, there would have been no reason to include “in the future.” A release of claims that plaintiff “has or might have asserted against AMS now” would cover existing but unasserted claims. The only purpose for including “in the future” is for the release to cover future claims. The fact that plaintiff was using the third implant at the time of the settlement supports this construction, as it shows that, when plaintiff executed the release, there was a definite possibility of future claims. The majority’s suggestion that the reference to future claims may be limited to that third prothesis, 141 Or App at 54, has no textual support. It is simply not possible to construe the release to distinguish between future claims arising from existing devices and future claims arising from future devices.

The majority finds it hard to accept that the parties could have intended that plaintiff release claims involving yet unmanufactured devices. Given the history of this case, it is not surprising that the parties should have intended that result. Plaintiff had two failed devices manufactured by defendant and a third in place when the release was entered into. Defendant had reason to want to buy permanent peace with plaintiff and to inform plaintiff that his use of defendant’s products in the future was at his own risk. The release by its terms puts an end to all future claims that plaintiff might ever have against defendant relating to penile prosthetic devices.

Although the majority cites recent cases in which the Supreme Court construed releases, it fails to understand the message that those cases convey. The court appears to be primarily concerned that each side be represented by counsel, as they were in this case. If that condition is met, it readily holds a release to be unambiguous and enforces it according to its terms, without regard to the parties’ actual intent, no matter how unfair the result may appear to be. Thus, in Lindgren v. Berg, 307 Or 659, 665-66, 772 P2d 1336 (1989), the court construed a release to cover fraud in the inducement of the release itself and held that, so construed, it was enforceable. InRistau v. Wescold, Inc., 318 Or 383, 388-89, 868 P2d 1331 (1994), it construed a release of claims that were “now existing” to include claims of fraud in the very transaction of which the release was a part. It did so despite authority from another jurisdiction that required a release of such claims to be explicit. If “now existing” was not ambiguous in that context, “any penile prosthetic device” and “in the future” are certainly not ambiguous in this context.

Because the majority strains to find an ambiguity that does not exist, I respectfully dissent.

1 The extrinsic evidence on which plaintiff relies merely confirms that the parties focussed on the existing litigation in negotiating the settlement; there is no evidence concerning any consideration of the effect of the release on any claims that plaintiff might bring concerning other implants. The extrinsic evidence, thus, neither creates an ambiguity that is not otherwise present nor aids in construing the words that the parties used in the release.