Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Release. For more information on the topic of release see the pages on Wikipedia.

Release-Statutes

See Va. Code § 8.01-35.1 as to effect of signing release on right of contribution. This section also indicates that release of one is not release of all.

See Va. Code § 8.01-425.1 as to releases within thirty days of accident.

Release-Cases

2012 Askew v. Collins, 283 Va. 482, 722 S.E.2d 249.

Defendant sought application of Code Section 8.01-35.1 on grounds that injury suffered by plaintiff from defamatory statement made by defendant was the same injury suffered by plaintiff from subsequent publication of newspaper article. In fact, there were separate injuries and therefore this Code Section does not apply.

2006 Cox v. Geary, 271 Va. 141, 624 S.E.2d 16.

Plaintiff was wrongfully convicted of criminal charges. He settled his claim for that wrongful conviction with the Commonwealth and in doing that, released his claim against his attorney for legal malpractice. In this instance, the plaintiff suffered one injury and having released the Commonwealth for all claims relating to that injury, he released all others. Va. Code § 8.01-35.1 does not apply because the attorneys are not joint tortfeasors with the Commonwealth. Therefore, release of one constitutes a release of all. A legal malpractice claim is not a tort claim but is a contract claim and, as such, there could be no joint tort liability between the attorneys and the Commonwealth.

2005 Baumann v. Capozio, 269 Va. 356, 611 S.E.2d 597.

Minor plaintiff brought personal injury suit in name of parents. After the minor turned 18, the minor settled the case for $75,000 and signed a release. When he signed the release, he was an adult. The parents did not sign the release. As part of the lawsuit, the parents had asserted a claim for their medical expenses that they paid on behalf of the minor. Parents reasserted that claim in a new lawsuit. Trial court dismissed the second lawsuit brought by the parents on the grounds that the parents had waived their claim to recover medical expenses. Waiver is the voluntary, intentional abandonment of a known legal right. An implied waiver must be proven by clear and convincing evidence. In this case, the evidence did not satisfy that criteria and therefore, the case is remanded for trial on the merits.

2000 Berczek v. Erie Ins. Group, 259 Va. 795, 529 S.E.2d 89.

Plaintiff injured in automobile accident thereafter settles tort claim and gives release discharging “all other persons, firms, or corporations.” This does not constitute release of claim for medical payments coverage against plaintiff’s own carrier.

1998 Downer v. CSX Transp., Inc., 256 Va. 590, 507 S.E.2d 612.

Plaintiff settled with other party for $5,000.00. CSX entitled to $5,000.00 credit as to judgment rendered against it in this case under terms of Va. Code § 8.01-35.1.

1995 Ramey v. Bobbitt, 250 Va. 474, 463 S.E.2d 437.

Wrongful death action wherein language in release appeared to release all responsible parties. Final order however released only Lawson. Statute requires that wrongful death action be court approved and release is limited to terms contained within order. As such, defendant in this action was not released since court order did not expressly release him.

1995 Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591, 457 S.E.2d 10.

Malpractice action where plaintiff settled with one health care provider. Hospital argued that to avoid effect of common law release rule, plaintiff was required to sign written release before dismissing other party from action. That is not requirement of release statute.

1992 Hiett v. Lake Barcroft Community Ass’n, 244 Va. 191, 418 S.E.2d 894.

Pre-injury release is invalid as to personal injury claim.

1992 Fairfax Hosp. Sys. v. McCarty, 244 Va. 28, 419 S.E.2d 621.

Structured settlement to be reduced to present value for purpose of determining amount of credit due under Va. Code § 8.01-35.1.

1992 Tazewell Oil Co. v. United Va. Bank, 243 Va. 94, 413 S.E.2d 611.

Release of both tort and contract claims in single document does not violate Va. Code § 8.01-35.1. Promise not to appeal trial court decision does not constitute release. Judgment debtor is entitled to credit for amount of settlement paid by other defendants to conspiracy claim.

1987 Cauthorn v. British Leyland, 233 Va. 202, 355 S.E.2d 306.

Pre-1979 injury. Where there is one indivisible injury for which settlement has been consummated, unconditional release of one allegedly liable for injury bars recovery against others allegedly liable regardless of theory upon which liability is predicated.

1987 Bartholomew v. Bartholomew, 233 Va. 86, 353 S.E.2d 752.

Retroactive application of Va. Code § 8.01-35.1 is unconstitutional when it impairs joint tortfeasor’s substantive right to raise as defense to lawsuit prior release executed between plaintiff and another joint tortfeasor. Law as of time of accident will be applied.

1986 Thurston Metals & Supply Co. v. Taylor, 230 Va. 475, 339 S.E.2d 538.

Joint tortfeasor’s release of employee does not release employer. Although technically they are not joint tortfeasors, trial court was correct in applying Va. Code 8.01-35.1 to this situation.

1984 Shiflet v. Eller, 228 Va. 115, 319 S.E.2d 750.

Plaintiff injured in automobile accident in 1977. Suit filed in 1979. On July 1, 1979, Va. Code § 8.01-35.1 became effective. In May 1981, plaintiffs settled their claim with one defendant, executing document entitled release or covenant not to sue, reserving their rights against other defendant. Trial court properly sustained pleas of release filed by that codefendant and dismissed action against him with prejudice. Substantive and vested rights are protected from retroactive application of statutes. Substantive rights are included within that part of law dealing with creation of duties, rights and obligations as opposed to procedural law. Although all vested rights are substantive, not all subject matter considered to be substantive relates to vested rights. Right to contribution arises when one tortfeasor has paid or settled claim. Cause of action for contribution arises at time of negligent acts. Cause of action for contribution is substantive right which in this case arose at time of accident in 1977. Va. Code § 8.01-35.1, enacted in 1979, by which release of one joint tortfeasor does not release other, adversely affected substantive right of contribution which arose in 1977 and, as such, cannot be applied retroactively.

1984 Hayman v. Patio Prods., Inc., 226 Va. 482, 311 S.E.2d 752.

Parties reached settlement and executed covenant not to sue. Court held that this covenant did not release other tortfeasors who were not party to it. Intent of Va. Code § 8.01-35.1 was to promote use of such agreements by permitting payment in discharge of one joint tortfeasor without causing release of others.

1982 Dwyer v. Yurgaitis, 224 Va. 176, 294 S.E.2d 792.

Where plaintiff failed to segregate injuries received in collisions with vehicles of two drivers, her general release of one tortfeasor released all other tortfeasors from liability. Plaintiff waived right to jury trial on release.

1980 Montagna v. Holiday Inn, 221 Va. 336, 269 S.E.2d 838.

Release held to be ineffective due to lack of consideration.

1979 Southern Ry. v. Arlen Realty, 220 Va. 291, 257 S.E.2d 841.

Injured party sued Southern, who filed third-party action against Arlen. Arlen settled with injured party. Claim against Southern dismissed with prejudice. Issue of whether Southern released its indemnity rights was remanded.

1978 Strickland v. Dunn, 219 Va. 76, 244 S.E.2d 764.

Release of one joint tortfeasor releases all joint tortfeasors.

1977 Wright v. Orlowski, 218 Va. 115, 235 S.E.2d 349.

Release of one tortfeasor releases all; plaintiff entered into covenant not to sue the insurance company for defendant and agreed to non-suit case against insured defendant prior to case going to jury. This constituted release.

1977 Nationwide Mut. Ins. Co. v. Muncy, 217 Va. 916, 234 S.E.2d 70.

Whether ground is mutual mistake or fraud, party seeking to set aside release of claims has burden of proving by clear, cogent, and convincing evidence that release should be set aside. Releasor had duty and ability and opportunity to read release before signing it. Evidence showed unilateral not mutual mistake; not sufficient for rescission of release.

1976 Caputo v. Holt, 217 Va. 302, 228 S.E.2d 134.

Absent court approval, as required by statute, release executed by personal representative was not binding on statutory beneficiaries and plea of release was properly denied.

1974 Washington v. Williams, 215 Va. 353, 210 S.E.2d 154.

Plaintiff initially injured in automobile accident. Preparatory to removal of wiring in her jaw, defendant physician injected preoperative medication into plaintiff’s left arm. Later left hand became gangrenous and forearm was amputated. Questions of aggravation, release, and liability of several and joint tortfeasors discuss: (1) If negligent acts of treating physician result in mere aggravation of injury, release of original tortfeasor operates to release physician; (2) If negligent acts result in separate and distinct injury, such release does not operate to release physician unless injured party has received full satisfaction or has agreed to accept certain amount as full satisfaction; (3) Question of mere aggravation or separate and distinct injury is jury question guided by ordinary principles of proximate cause; and (4) Question of full satisfaction is jury question.

1971 Powell v. Troland, 212 Va. 205, 183 S.E.2d 184.

Where there has been acceptance of satisfaction of judgment recovered, it has same effect as release.

1971 Marshall v. Cundiff, 211 Va. 673, 180 S.E.2d 229.

If release expressly includes unknown injuries and such language is not conclusive, agreement may be vitiated for mutual mistake. To have release set aside, burden is on releasor to show that release should be set aside by clear, cogent, and convincing evidence. Whether they intended to release such injuries is usually question of fact.

1970 Harvey v. Robey, 211 Va. 234, 176 S.E.2d 673.

Plaintiff injured in automobile accident. She accepted money settlement, including amount for future expenses and signed release. Later she lost vision in one eye and partial loss of hearing in one ear. These were unknown and unexpected consequences of known injury they do not bring case within rule permitting avoidance of release on ground of mutual mistake. Release valid.

1969 Valentine v. Jester, 210 Va. 83, 168 S.E.2d 94.

Plaintiff signed release. At time she was under medical care and thought that condition would be temporary. After signing release she learned condition was permanent. Held: release effective.

1968 Cotman v. Whitehead, 209 Va. 377, 164 S.E.2d 681.

Release of one joint tortfeasor releases other when based on accord and satisfaction.

1967 Dickenson v. Tabb, 208 Va. 184, 156 S.E.2d 795.

Release of one operates as release of all if there has been satisfaction.

1965 Katzenberger v. Bryan, 206 Va. 78, 141 S.E.2d 671.

Defendant attorney performed title search. Plaintiff client relied thereon and paid for property that seller did not own. Settlement by client with seller did not bar tort claim by client against attorney.

1963 Lackey v. Brooks, 204 Va. 428, 132 S.E.2d 461.

Covenant not to sue one joint tortfeasor, as distinguished from release, does not operate to discharge claim against other joint tortfeasors.

1963 Eller v. Blackwelder, 204 Va. 292, 130 S.E.2d 426.

Plaintiff filed personal injury suit against defendant and defendant’s insurance company settled without defendant’s knowledge. Settlement and release of this claim did not bar any claim of insured.

1961 Corbett v. Bonney, 202 Va. 933, 121 S.E.2d 476.

Plaintiff signed release presented to her by defendant’s insurance adjuster shortly after accident. Plaintiff claims he did not read release, but was misled by adjuster; to set release aside, plaintiff must prove: (1) fraud in procurement of release by clear and credible evidence, and (2) mutual mistake of fact as to plaintiff’s injuries.

1961 Smith v. Hensley, 202 Va. 700, 119 S.E.2d 332.

For release to be final and complete, it must have been so intended by parties. Where evidence raises factual disputes as to intent of parties, then jury question is presented.

1960 Nationwide Ins. Co. v. Gentry, 202 Va. 338, 117 S.E.2d 76.

Plaintiff in another claim signed release. Release was set aside and defendant was given credit for amount paid against judgment entered.

1960 Young & Son v. Kirk, 202 Va. 176, 116 S.E.2d 38.

In deed, plaintiff knowingly released all claims for damage incurred in construction of highway, except that caused by negligence or departure from plans and specifications referred to in deed. Plaintiff was bound by this release.

1960 Hiss v. Friedberg, 201 Va. 572, 112 S.E.2d 871.

Breach of employment contract against attorney in reference to real estate transaction. Client settled with seller of property. This does not constitute release of attorney.

1957 Seaboard Ice Co. v. Lee, 199 Va. 243, 99 S.E.2d 721.

There was held to be mutual mistake as to whether consideration mentioned was intended as full release. Inadequacy of settlement was factor court considered.

1950 Shortt v. Hudson Supply & Equip. Co., 191 Va. 306, 60 S.E.2d 900.

Employee aboard train injured in collision with vehicle, allegedly caused by defendants. Employee settled with his employer, Norfolk & Western Railway. Release of one joint tortfeasor releases all.

1950 Provident Life Ins. Co. v. Walker, 190 Va. 1016, 59 S.E.2d 126.

Jury issue presented as to whether release procured by fraud.

1948 Corbett v. Clarke, 187 Va. 222, 46 S.E.2d 327.

Settlement with original tortfeasor operates as release of physician whose negligence aggravated injury so long as that negligence is not gross.