Carder v. Henson

BROCK, Chief Judge. Plaintiff contends the trial court committed error by signing the summary judgment in favor of the defendants based upon the release executed by the plaintiff. Plaintiff contends that when he signed the release, he was under the impression that the release was only for: (1) money to enable plaintiff to obtain an automobile; and (2) payment for medical expenses. Plaintiff contends that in response to a question concerning coverage of future medical expenses, he was told by the insurance representative that, “If anything comes up concerning your health, it will be taken care of in the future.” The record reveals that the plaintiff is well educated, having finished high school and completed commercial courses. The plaintiff stated: “I said I read and understood this Release, and it says, ‘and all consequential damages on account of or in any way growing out of any and all known and unknown personal injury, death and property damage,’ I read that before I signed it. And I knew it covered personal injury.” Plaintiff has admitted execution of the release, and it is incumbent upon the plaintiff to prove any matter in avoidance. Matthews v. Hill, 2 N.C. App. 350, 163 S.E. 2d 7. Plaintiff stated that he “read the release and understood it.” From the [320] facts presented, no fraud is shown which would vitiate the release. “A release executed by the injured party and based on a valuable consideration is a complete defense to an action for damages for the injuries and where the execution of such release is admitted or established by the evidence it is necessary for the plaintiff (releasor) to prove the matter in avoidance.” Caudill v. Manufacturing Co., 258 N.C. 99, 128 S.E. 2d 128. Plaintiff has failed to plead or offer evidence of any matter which would successfully nullify the release. The trial court properly allowed defendants’ motion for summary judgment. The judgment appealed from is Affirmed. Judges Campbell and Hedrick concur.