Auto Owners Insurance Co. v. Feeler, 2008-P-0025 (12-26-2008)

{¶ 38} While I concur with the majority's conclusion that the matter should be reversed and remanded for further proceedings, I disagree with the conclusion that the entire settlement agreement is void. The contract should only be void as to precluding any personal injury claims by Mr. Reed. The contract is severable and the settlement agreement, with respect to the release of property damage claims, is still valid.

{¶ 39} If the "various clauses of a contract are severable from one another, the contract will be enforced to the extent possible."Newell v. Lawrence Bldg. Corp., 5th Dist. No. 94-CA-292, 1995 Ohio App. LEXIS 3595, at *5.

{¶ 40} Whether a part of a contract may be severed from the remainder "depends generally upon the intention of the parties, and this must be ascertained by the ordinary rules of construction." Huntington FinkeCo. v. Lake Erie Lumber Supply Co. (1924), 109 Ohio St. 488, at paragraph one of the syllabus (emphasis added). The intention of the parties is discovered by use of the rules of construction, the language of the contract, the subject matter of the contract, the parties' respective situations, the circumstances surrounding the transaction that is the subject of the contract, and the conduct of the parties that demonstrates the construction they themselves placed upon the contract. Id.

{¶ 41} Applying the above factors to the instant situation, the clauses of the contract are severable. The intention of the parties can be ascertained by their actions and respective situations. Attorney Huber was retained by Auto-Owners Insurance Company, not by Mr. Reed. Furthermore, when negotiating the settlement agreement with Mr. Feeler, Attorney Huber was of the intent to bind his client, Auto-Owners Insurance, to the contract. Mr. Reed was neither contacted regarding the settlement contract nor did Attorney Huber have Mr. Reed's consent to settle. Auto-Owners Insurance, who did not insure anyone injured in the accident, did not have a personal injury claim in the matter. Auto-Owners Insurance only had a claim relating to property damages; whereas Mr. Reed had a claim in personal injury damages.

{¶ 42} The intention of the parties indicates that the contract is severable, and therefore, the entire agreement should not be voided.