Tarantola v. Williams

Rabin, J. The issue presented is whether a general release granted by one tort-feasor to another will defeat an otherwise valid right to apportionment of liability. This controversy arises from an accident involving four automobiles which occurred on the Long Island Expressway, July 11, 1973. Plaintiff Daniel Tarantela was operating an automobile owned by his wife, coplaintiff Rose Tarantela. Peter Leonforte, the defendant here, was operating his own automobile. The third-party-defendants, Michael S. Dios and Sheila M. Nigl, were, respectively, the operator and owner of the third automobile. The fourth automobile was owned and operated by Ronda Williams, who is named as a defendant in the present action, but is not involved in this appeal. Leonforte commenced an action for personal injuries in the Civil Court of the City of New York, Queens County, against Dios and Nigl. That case was settled; Dios and Nigl, represented by counsel for their insurance carrier, paid $1,250 to Leonforte, who. was represented by his personal counsel, and received from him a standard form "general release”, dated March 19, 1974. Approximately two months earlier, in January of 1974, the instant action had been commenced in the Supreme Court, Suffolk County, against Leonforte, who was represented by, and answered through, counsel for his insurance carrier. In May of 1974, approximately two months following the granting of the release, counsel for defendant Leonforte sought to implead Dios and Nigl as third-party defendants, claiming they were liable for all or part of any recovery that might be granted against him. The third-party defendants, once again represented by their insurance carrier, then moved to dismiss the third-party complaint on the ground that it was barred by the release previously granted to them by Leonforte. Special Term granted the motion and dismissed the third-party complaint, holding that the impleading of Dios and Nigl for indemnification and contribution pursuant to the doctrine of Dole v Dow Chem. Co. (30 NY2d 143) was one of the actions previously released by Leonforte. The order of Special Term should be reversed and the third-party complaint reinstated. Under the circumstances, the general release cannot fairly be interpreted as releasing the [554] right to secure either indemnification or an apportionment of liability to the third-party plaintiff under Dole. Of course, a party may release a claim or right, including the right to a Dole apportionment. The question is whether the general release granted by Leonforte in this case may properly be read to include a release of this right. With regard to the interpretation of a general release, "its meaning and coverage necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did not desire or intend to dispose of’ (Cahill v Regan, 5 NY2d 292, 299). Both Leonforte and his counsel in the Civil Court action submitted affidavits attesting to the fact that indemnity, contribi tion and apportionment of liability were not mentioned or discussed in the negotiations leading to the release. According to these affidavits, the amount paid was exclusively in compensation for Leonforte’s damages for personal injuries. The third-party defendants do not deny these statements; rather, they rely only on the broad language used in the release, and argue for inclusion as one of the rights released, the right to implead and have damages apportioned. Of course, the subjective notions of parties to contracts do not determine the legal rights and duties created by a writing of the agreement. The general release granted in the present case should be interpreted to release the claims specifically bargained for and all claims reasonably related to the bargained items. Under the circumstances of this case, however, it is not reasonable to include within the terms of the general release Leonforte’s rights to implead Dios and Nigl so as to obtain indemnity or an apportionment of liability. No part of the consideration for the release was related to the extinguishment of this claim. The Dole claim was neither bargained for nor discussed. Furthermore, the right to implead under Dole is a completely different type of right than the right to damages in compensation for personal injuries and property damage. Although procedurally, the defendant becomes a third-party plaintiff and asserts a claim against the third-party defendant, the right to Dole apportionment, at least in the context of interpreting a general release, is more in the nature of a defense to the plaintiff’s claim than an affirmative claim against the other tort-feasor. From the point of view of [555] defendant Leonforte, impleader and apportionment is a device for passing on, and therefore reducing, the full liability asserted against him by the plaintiff. Without attempting an analytically precise categorization of a Dole claim for all purposes, it is clear that the rights of indemnification, contribution and apportionment of liability are triggered by the plaintiffs action and, practically speaking, are asserted in a defensive effort to avoid the full consequences of plaintiffs claim. These rights are not affirmative claims against the impleaded tort-feasor; they have no existence independent of the plaintiffs claim, and no action for direct payment accrues to the third-party plaintiff until the time of payment of judgment to the plaintiff. In this respect, they are unlike Leonforte’s action for damages against the third-party defendants for his own personal injuries resulting from the accident. The general release granted by Leonforte released all claims reasonably related to that damage claim, whether existing at the time or in the future, but, in the absence of language expressly indicating such a waiver, did not release rights to indemnity, contribution and apportionment of liability (see 2A Weinstein-Korn-Miller, NY Civ Prac, par 1401.21, pp 14-58 to 14-59). The cases of Vassar v Jackson (72 Misc 2d 652, affd 42 AD2d 693) and Isaacson v Kesten (45 AD2d 735) do not require a contrary result. Both of these cases involved releases that were executed prior to the decision in Dole v Dow Chem. Co. (30 NY2d 143, supra), which first allowed apportionment of liability among tort-feasors. While it is true that the parties to pr e-Dole releases could not possibly have contemplated the release of the then nonexistent rights created by Dole, there are policy considerations akin to res judicata which apply to positions taken pr e-Dole which do not apply to actions after the Dole decision. While Vassar and Isaacson both held that the granting of a general release to another tort-feasor would preclude the right to enforce an apportionment of damages under Dole, these decisions are distinguishable, since they are based to a significant degree on a legitimate desire to avoid the unhealthy unravelling effects that a new doctrine may have in cases where there have been changes of position prior to the announcement of the new doctrine. (Cf. Vassar v Jackson, supra, and Isaacson v Kesten, supra, with Walker v Maeweather, 76 Misc 2d 671, and Michelucci v Bennett, 71 Misc 2d 347.)