MADELINE BAGNASCO, APPELLANT,
v.
JOSEPHINE SMITH ET AL., APPELLEES
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In this personal injury appeal, the court reversed a summary judgment dismissing the plaintiff's claims against the defendants based on a general release executed during settlement with other tortfeasors. The court found that the plaintiff raised a genuine issue of material fact regarding whether the release was procured by mutual mistake, precluding summary judgment.
Summary judgment was improper because the appellant raised a genuine issue of material fact regarding the validity of the release. The claim of mutual mistake, supported by affidavit, created a factual dispute that must be resolved at trial rather than on summary judgment.
[1] A general release that purports to release all other persons, in addition to named tortfeasors, may be subject to reformation based on mutual mistake.
[2] A claim of mutual mistake in the inclusion of broad release language can raise a genuine issue of material fact, precluding summary judgment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although the reply of the appellant was not as well drawn as it might have been in seeking to avoid the effect of the release on the grounds of mutual mistake, there was no challenge to the technical sufficiency of the reply on that ground; and the subsequent filing of the affidavit by appellant's counsel clearly presented the claim of mutual mistake.”
Establishes that despite inadequate pleading, the affidavit sufficiently raised the mutual mistake defense
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Bagnasco settled claims against certain tortfeasors and executed a general release that purported to release not only the named tortfeasors …
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ANSTEAD, Judge.
This appeal by the appellant is from a final summary judgment in favor of the defendant-appellees in a personal injury action.
The appellees filed a motion for summary judgment predicated on the affirmative defense of release asserted by virtue of the appellant’s execution of a general release when she settled her claims against other tortfeasors. That release, in addition to releasing the named tortfeasors, purported to release all other persons who might be liable to appellant. In reply to the affirmative defense, the appellant claimed that such release did not affect her claim against the appellees. Appellant filed an affidavit by her counsel which related in essence that the portion of the release which discharged all other persons had been included therein by mutual mistake and that the appellant was entitled to a reformation of the release to exclude such language. The appellant also filed a separate lawsuit for reformation against the tortfeasors involved in the prior settlement.
In Ayr v. Chance, 372 So. 2d 1000 (Fla. 4th DCA 1979) this court reversed a trial court’s entry of summary judgment under very similar circumstances. We believe that the same result is mandated herein. Although the reply of the appellant was not as well drawn as it might have been in seeking to avoid the effect of the release on the grounds of mutual mistake, there was no challenge to the technical sufficiency of the reply on that ground; and the subsequent filing of the affidavit by appellant’s counsel clearly presented the claim of mutual mistake. In addition, the trial court had entered an order after the previous settlement dismissing the settling tortfeasors from the suit but specifically providing that the appellant’s claim against the appellees would continue despite the settlement. Because there was an issue as to the validity of the release as to appellees, we believe the trial court erred in entering summary judgment.1
Accordingly, the summary final judgment is hereby reversed with directions for further proceedings consistent herewith.
DOWNEY, C. J., and MOORE, J., concur. . Also see the recent Supreme Court decision of Hurt v. Leatherby Insurance Co., 380 So. 2d 432 (1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Soucy v. Casper, 658 So. 2d 1015 (Fla. 4th DCA 1995)…e objective evidence of mutual mistake was presented. Here, appellant was still undergoing medical treatment for her injuries. State Farm tendered its policy limits on Mr. Soucy's claim after receiving his settlement brochure. In Bagnasco v. Smith, 382 So. 2d 401 (Fla. 4th DCA 1980), this court reversed a summary judgment even though the issue of mutual mistake was not artfully presented. Similarly, appellant has presented her claim of mutual mistake through her reply to the affirmative defense as well as th…
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Fed. Deposit Ins. Corp. v. Anthony and Josephine Valente, 553 So. 2d 763 (Fla. 2d DCA 1989)…ent that has been filed in the public records is still susceptible of reformation, a satisfaction recorded in the public record is not conclusive where the court is presented with the issue of the validity of the satisfaction. See Bagnasco v. Smith, 382 So. 2d 401 (Fla. 4th DCA 1980). We find that this issue was adequately presented, and that summary judgment was thus improper. Reversed and remanded. LEHAN, A.C.J., and PATTERSON, J., concur.…
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Sharondale Realty, Inc. v. Anglers Motel & Boat Docks, Inc., 545 So. 2d 917 (Fla. 2d DCA 1989)…ten contract failed to express the intent of the parties that the sale on the basis of which the broker seeks a commission was excluded from the contract. See Providence Square Ass’n v. Biancardi, 507 So. 2d 1366, 1369 (Fla.1987); Bagnasco v. Smith, 382 So. 2d 401 (Fla. 4th DCA 1980). Affirmed. SCHOONOVER, A.C.J., and PARKER, J., concur.…
Authorities Cited
- Nolan Hurt and Florence Hurt v. Leatherby Ins. Co., 380 So. 2d 432 (Fla. 1980)
- AYR v. Chance, 372 So. 2d 1000 (Fla. 4th DCA 1979)