ERNEST MENENDEZ AND THERESA MENENDEZ, PLAINTIFFS-APPELLANTS,

v.

PERISHABLE DISTRIBUTORS, INC., AND EDGAR NEWTON CROWE, JR., DEFENDANTS-APPELLEES

Decided: MAY 2, 1985

4175. MENENDEZ et al. v. PERISHABLE DISTRIBUTORS, INC., et al.

PER CURIAM.

The United States Court of Appeals for the Eleventh Circuit sent us three certified questions. The answers to questions one and two are that Florida law applies. The third question is mooted by our answers above.

The facts of the case may be found in greater detail in Menendez v. Perishable Distributors, Inc., 744 F. 2d 1551 (11 Cir.1984). Briefly stated, appellant was a passenger in an automobile traveling through Georgia when a collision occurred. Appellant and the driver were Florida residents at the time the suit was filed. The owner of the other vehicle and its driver resided in Georgia. Appellant filed suit in a Federal District Court in Georgia against the two drivers and the owner of the other vehicle. The driver of the automobile was dismissed by the court due to lack of total diversity. Appellant filed a separate suit in a Florida State Court against the automobile driver. The Florida case was settled and appellant signed a release in Florida. During the course of the trial in Federal Court against the driver and the owner of the other vehicle, appellees, the existence of the release was discovered. Appellees were allowed to orally amend their pleadings to assert the release as an affirmative defense, and the court directed a verdict in their favor. In Georgia a release is “subject to the same rules as govern ordinary contracts in writing, and parol evidence is not admissible to contradict or vary the terms or stipulations.” Southern Bell Telephone and Telegraph Co. v. Smith, 129 Ga. 558, 59 S.E. 215 (1907); See also Henslee v. Houston, 566 F. 2d 475, 479-80 (5th Cir.1978). A general release or a release which contains no reservations, executed in favor of one joint tortfeasor, in full settlement of damages, releases all joint tortfeasors. Zimmerman’s, Inc. v. McDonough Construction Co., et al, 240 Ga. 317, 319, 240 S.E. 2d 864 (1977). Florida has, by statute, abolished the common law rule that the release of one tortfeasor discharges the other tortfeasors. F.S.A. § 768.041.

QUESTION ONE: “Under the choice of law rules of the State of Georgia, what state’s substantive law governs the effect of a release that was executed in the State of Florida and that by its terms, forever discharged ‘all ... persons, firms or corporations ... from any and all claims, demands, actions causes of actions or suits of any kind or nature whatsoever’ arising from an injury-causing accident which occurred in Georgia?”

In Georgia, a release is a contract. See Southern Bell Telephone and Telegraph Co., supra, 129 Ga. at p. 558, 59 S.E. 215. Under the holding of General Telephone Co. of the Southeast v. Trimm, 252 Ga. 95, 311 S.E. 2d 460 (1984), the Florida law controls the effect of the release under the rule of lex loci contractus.

QUESTION TWO: “Under the choice of law rules of the State of Georgia, what state’s substantive law governs the admissibility of extrinsic evidence establishing the intent of the contracting parties who executed a release in the State of Florida that, by its terms, forever discharged ‘all ... persons, firms or corporations ... from any and all claims, demands, actions, causes of actions or suits of any kind or nature whatsoever’ arising from an injury-causing accident which occurred in Georgia?” The rule of lex loci contractus controls all substantive matters, such as “the nature, construction and interpretation of contracts. [Cits.]” Cox v. Adams, 2 Ga. 158, 165 (1847). The rule of “lex fori controls all matters affecting only the remedy, such as rules of evidence, methods of shifting the burden of proof, and the presumptions arising from given states of fact. [Cit.]” Hill v. Chattanooga Railway and Light Co., 21 Ga.App. 104, 93 S.E. 1027 (1917).

The parol evidence rule “ ‘is not one merely of evidence, but is one of positive or substantive law founded upon the substantive rights of the parties.’ [Cit.]” Albany Federal Savings & Loan Assn. v. Henderson et al., 198 Ga. 116, 143, 31 S.E. 2d 20 (1944); see also Dunn v. Welsh, 62 Ga. 241, 244 (1879). Likewise, contemporaneous documents are to be considered “in pari materia” with a form release “so that the intention of the parties may be ascertained and allowed to control.” Georgia Highway Express, Inc., v. United Parcel Service, Inc., 164 Ga.App. 674, 297 S.E. 2d 497 (1982). Because this extrinsic evidence consisting of contemporaneous documents may be used to determine the intention of the parties, and thus their substantive rights, the law of Florida controls under the rule of lex loci contractus.

QUESTION THREE: “Assuming the answers to the previous questions are to the effect that Georgia law governs: Under the substantive law of the State of Georgia, can litigants stipulate during oral argument before an appellate court to choice of law rules that differ from the choice of law rules later pronounced by the courts of the State of Georgia, where accepting the stipulation would result in an application of another state’s substantive law to govern the effect of a release and the admissibility of extrinsic evidence establishing the intent of the contracting parties?”

Our answer to questions one and two above make the third question moot.2

Certified questions answered.

All the Justices concur, except GREGORY, J., who dissents.

. Menendez also filed suit on the same basis and against substantially the same defendants in the Southern District of Florida. That case was transferred to the Northern District of Georgia and consolidated with the instant lawsuit.

Theresa Menendez, the appellant’s wife, claimed loss of consortium in this consolidated case. A stipulation of dismissal by consent of the parties disposing of her claim has been filed with the district court.

. Section 768.041 provides in full:

(1) A release or covenant not to sue as to one (1) tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.

(2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

(3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

Fla.Stat. § 768.041.

. Rule 15(b) states, in relevant part:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

. Professors Wright and Miller explain the operation of Rule 15(b) as follows:

In some cases Rule 15(b) will serve as an exception to the proposition that a failure to assert a Rule 12(b) defense, or to plead an affirmative defense, or to interpose a compulsory counterclaim, results in a waiver of that defense or counterclaim and its preclusion from the case as well as subsequent litigation. Thus, for example, if evidence relating to an unpleaded affirmative defense is introduced without objection, Rule 15(b) requires the issue to be treated as if it actually had been raised by the pleading____ If evidence of an unpleaded affirmative defense is objected to, Rule 15(b) gives the trial court discretion to permit the amendment of the pleadings over objection when it will promote the presentation of the merits of the action, the adverse party will not be prejudiced by the late assertion of the defense, and he has ample opportunity to meet the issue. [Ejven if the objecting party demonstrates that he is not prepared to meet the new evidence, ... the court still may permit the amendment if a continuance will cure the prejudice and enable the objecting party to meet the changed situation.

. On a separate issue, however, we hold that the district court did not abuse its discretion in ruling, under the particular circumstances of this case, that Menendez and not the appellees must produce a copy of the settlement agreement. Since trial had already begun, judicial economy and procedural efficiency dictated that the party having the greatest knowledge of and access to the documents bear the burden of producing them.

Nor did the district court dismiss this action as a sanction for Falanga’s failure to inform opposing counsel and the court of the existence of a settlement agreement. Contrary to Menendez’s assertions, the record is clear that the district court simply interpreted Georgia law to bar further prosecution of this case because the release had been discovered.

. See, Ehrenzweig, Release of Concurrent Tortfeasors in the Conflict of Laws: Law and Reason Versus the Restatement, 46 Va.L.Rev. 713 (1960).

. We acknowledge appellee's argument regarding pleading and proof, and note that "a federal court may take judicial notice of foreign law regardless of state court practice.” Old Hickory Products Co., Ltd. v. Hickory Specialties, Inc., 366 F.Supp. 913 (D.C.Ga.1973).

GREGORY, Justice,

dissenting.

I dissent for the reason that I would adopt the “center of gravity” theory as indicated in my dissenting opinion in General Telephone Co. of the Southeast v. Trimm, 252 Ga. 95, 311 S.E. 2d 460 (1984). That choice of law theory, which I will not undertake to analyze on these facts, might very well bring about a different result from that reached in the majority opinion.