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Herold v. Inman

Decided: September 9, 1981.

MARTHA E. HEROLD, PLAINTIFF,
v.
JENNIE INMAN, DEFENDANT



Davis, J.s.c.

Davis

This is an action brought by an uninsured motorist against an individual tortfeasor seeking to recover hospital and other medical expenses plus loss of wages arising from the alleged negligence of defendant in the operation of her vehicle. Plaintiff is proceeding on an alleged common law right of recovery. Defendant raised an affirmative defense of discharge due to plaintiff's execution of a release in full, and the defense that plaintiff failed to state a cause of action upon which relief could be granted because there no longer exists a common law right of recovery for personal injury protection (PIP) type benefits because of the enactment of the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq.

The case was tried as to liability only; therefore, the issue of fault on the part of each party will be determined before considering the proper interpretation of the Reparation Act or the release executed by the parties.

I. Liability

On May 13, 1978, at about 7:20 a.m., plaintiff operated her vehicle in a generally eastwardly direction on Haddon Avenue in the Borough of Collingswood, New Jersey. As she approached at 15 to 20 miles an hour the intersecting street of Bellevue Terrace, which was to her right, she observed defendant's vehicle on Bellevue Terrace proceeding toward her. It was admitted by defendant that Bellevue Terrace was controlled by a stop sign. Plaintiff did not observe whether defendant disregarded the stop sign. She could only state that when she first saw defendant, defendant was about 3 1/2 feet from the stop sign, at which time defendant was looking to the right away from her and toward Route 130.

Defendant testified that she first looked to her right toward Route 130, looked to her left but did not see anything, looked to the right again and then "just stepped on the gas to go and there she was in front of me." At the point of impact plaintiff had nearly cleared the intersection. Her vehicle was struck at its right rear fender. Plaintiff testified that she swerved to the left to try to avoid the incident but couldn't go any farther because of a pole.

From these facts it must be concluded that the failure of defendant to make proper observations to her left, which would be the area from which danger would have more readily appeared, was negligence and that this negligence was the proximate cause of the collision and resulting expense plaintiff now seeks to recover. These facts also dictate the conclusion that the conduct of plaintiff was free of any fault which could be said to be a proximate cause of this accident.

II. Release

Before this action was instituted plaintiff, through her attorney Edward J. Brady, settled with defendant for $5,499.81, which was allocated as $999.81 for all property damage and $4,500 for all other items except hospital bills, doctors' bills and other medical expenses, admittedly in excess of $1,400. Defendant, however, reserved the right to question their reasonableness if a trial as to damages is necessary.

The settlement negotiations were between Mr. Brady, plaintiff's attorney, and Mr. St. Pierre of Aetna Casualty & Surety Company. When the values were agreed upon, St. Pierre mailed a "release in full" to Brady, the relevant portions of which are as follows:

Upon the receipt of the release from St. Pierre, Brady requested permission of St. Pierre to insert additional language in the release because of the difficulty in getting PIP recovery from plaintiff's carrier. St. Pierre testified that he told Brady that the exception made no difference to him and that he had no objection to the additional language. Then he testified that Brady was trying to reserve a right of recovery against his company for PIP coverage and that he (Brady) told him that he didn't think his company was responsible. After this colloquy Brady added the following words to the release: "This does not include any PIP benefits which undersigned may be entitled." The release was then fully executed and returned to Aetna Casualty & Surety Company, at which time a check was submitted to Brady for the total amount set forth above.

Subsequently, plaintiff instituted an action against her own carrier seeking to recover her PIP benefits. Plaintiff was denied a right of recovery by way of a motion for summary judgment.

As a result of this action plaintiff's counsel contacted Aetna's agent seeking recovery of medical expenses and loss of wages (PIP-type benefits). Defendant's agent denied responsibility and asserted the execution of the release in bar of such claim. Plaintiff then filed this action.

Defendant has basically argued that Brady is a lawyer and that any words used by him on behalf of his client should be construed very strictly, and that a strict construction would mean that the exception set forth in the release is of no effect because of the disclaimer by plaintiff's carrier. I respectfully disagree.

Whether the words are to be strictly or liberally construed is not the answer so long as the ...


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