Carter v. Kingsford , 1976 Utah LEXIS 957 ( 1976 )

ELLETT, Justice

(dissenting):

This Court has often held that a Motion for Summary Judgment should only be granted where there are no disputed material issues of fact in the case. In Dupler v. Yates¹ we stated that:

Rule 56 U.R.C.P. is not intended to provide a substitute for the regular trial of cases in which there are disputed issues of fact upon which the outcome of the litigation depends. And it should be invoked with caution to the end that litigants may be afforded a trial where there exists between them a bona fide dispute of material fact.

The parties believed at the time of settlement that the plaintiff had contusions to the cervical spine and settled for that injury. Actually the plaintiff had a herniated disc which she now asserts was caused by the accident and which was not known to her or the insurance company at the time of settlement.

A herniated disc is not the same injury as is a contusion to the cervical spine. This may be illustrated as follows: Suppose the defendant’s dog bites the plaintiff and both parties believe the bite is not serious and settle for $100. If infection sets in and the leg has to be amputated, the settlement cannot be set aside. However, if the dog, unknown to either party, was rabid at the time, and plaintiff later developed rabies, the settlement certainly should be set aside for the reason that the real injury was not known at the time of settlement and there was a mutual mistake of fact.

The instant case was brought because there was a material fact in dispute between the parties; to-wit: whether appellant had, in fact, settled for an unknown consequence of a known injury or whether she suffered from injuries which were unknown at the time of settlement. There is evidence to support either claim, and I believe the trial court erred in granting a summary judgment in the case.

The concurring opinion states:

It cannot reasonably and fairly be assumed otherwise than that she did so [settle her claim] in awareness of the result of her examination and treatment in the hospital and her doctor’s advice concerning her condition, including the fact that the x-rays showed “a slight degenerative disc disease” of her cervical vertebra.

Obviously the meaning of the statement is that the author of the concurring opinion assumes that the appellant knew what the doctor knew. The fact is, as she states in her affidavit: “Dr. Johana had informed me that all x-rays taken of my neck and shoulders were normal.” The trial court must have made the same erroneous assumption when it granted the summary judgment against the appellant.

My colleagues seem to rely on the case of Reynolds v. Merrill² which appears to be in point. There, the plaintiff was injured in a collision between two cars. He settled his cause of action with the insurance carrier and signed a release containing the following language:

The undersigned hereby declare (s) and represent(s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned rely(ies) wholly upon the undersigned’s judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.

In the Reynolds case, x-rays were taken and treatment received from a doctor. The plaintiff thought he had a strain of muscles and a recurrence of bursitis. It later turned out that he had a spinal fusion which he claimed was necessitated by his injuries. He, like the appellant in the instant'matter, sought to set aside the settlement and to have a trial on the merits of the case. The trial judge in that case granted a summary judgment against the plaintiff therein. This Court reversed that judgment and in doing so, said:

In the instant case the plaintiff does not contend that he should have the release set aside if it is shown that he actually intended to settle for all injuries. He here is asking for a day in court to establish, if he can, that there was a mutual mistake of fact regarding the injury which actually was in existence but which was unknown to both him and the insurance adjuster.

We are not here concerned with the question of when the plaintiff’s disc was herniated. He has alleged that it resulted from the accident. If he can prove it, and that at the time of signing the release neither party knew about it, he should have that privilege.

The summary judgment granted 'by. the lower court is reversed, and the case is remanded to the lower court for a trial on the issues presented by the pleadings. The appellant is awarded costs.

The instant matter seems identical to the Reynolds case, and in my opinion the ruling here should be the same as it was in that case.

I would reverse the summary judgment, remand the case for trial to determine if there was a mutual mistake of- fact; and if there was, then for a trial on'the merits of the case. I would award costs to the appellant.

MAUGHAN, J., concurs in- the views expressed in the.dissenting.opinion of EL-LETT/.J.

1 . 10 Utah 2d 251, 351 P.2d 624, 636 (1960).

2 . 23 Utah 2d 155, 460 P.2d 323 (1969).