Pursuant to Ind. Appellate Rule 65(D),
                                                                              Dec 03 2013, 5:48 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

R. PATRICK MAGRATH                                  TYSON P. SCHROEDER
Alcorn Goering & Sage, LLP                          Boehl Stopher & Graves, LLP
Madison, Indiana                                    New Albany, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ANGELA D. HARTWELL,                                 )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )    No. 39A01-1305-CT-195
                                                    )
INDIANA INSURANCE COMPANY,                          )
                                                    )
       Appellee-Defendant.                          )


                     APPEAL FROM THE JEFFERSON CIRCUIT COURT
                         The Honorable Ted R. Todd, Senior Judge
                             Cause No. 39C01-1110-CT-917


                                         December 3, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
                                     CASE SUMMARY

       In June of 2009, Appellant-Plaintiff Angela Hartwell was injured in an automobile

accident involving William McRoberts. At the time, Harwell was insured by Appellee-

Defendant Indiana Insurance Company and McRoberts was insured by Geico Insurance

Company. Hartwell brought suit against McRoberts and Geico, and Geico eventually offered

to settle with Hartwell for McRoberts’s policy limit, which was $25,000.00. Hartwell

notified Indiana Insurance of Geico’s offer and expressed an intent to pursue a claim

pursuant to the uninsured motorist coverage she had with Indiana Insurance. Eventually,

Hartwell executed a release (“the Release”) with Geico in exchange for the policy limits.

       In October of 2011, Hartwell sued Indiana Insurance, seeking coverage pursuant to

her underinsured motorist coverage. Indiana Insurance responded and moved for summary

judgment, arguing that the Release had released Indiana Insurance as well. After a hearing,

the trial court entered summary judgment in favor of Indiana Insurance on the question of

coverage. Hartwell argues that (1) the Release is ambiguous and that the intent of the parties

to it is a question of fact, thereby precluding the entry of summary judgment; (2) the

“stranger to the contract” rule allows the examination of parol evidence, which indicates that

Hartwell did not intend to release Indiana Insurance; and (3) the “joint tortfeasor” rule has no

applicability in the case and is no longer good law in any event. Concluding that the Release

is ambiguous regarding the Hartwells’ and Geico’s intent to release Indiana Insurance, we

reverse and remand for trial on that question.

                        FACTS AND PROCEDURAL HISTORY

       On June 2, 2009, Hartwell, who had automobile insurance with Indiana Insurance,
was involved in an accident with McRoberts, who was insured by Geico. On May 21, 2010,

Hartwell contacted Indiana Insurance through her attorney, notifying Indiana Insurance that

Geico had tendered her a settlement offer of McRoberts’s $25,000.00 policy limit and

requesting Indiana Insurance’s “permission to accept the $25,000.00 while pursuing an

underinsured claim with your company.” Appellant’s App. p. 51. On May 28, 2010, Indiana

Insurance claim specialist Nancy Rupe responded, requesting “a copy of that offer and

include a copy of their Declarations Page as well.” Appellant’s App. p. 52. Rupe also

requested “a copy of your demand package so that we may consider your claim under the

Underinsured Motorist Bodily Injury portion of this policy.” Appellant’s App. p. 52.

Hartwell forwarded the requested materials to Indiana Insurance, and, on August 18, 2010,

Rupe replied, “We agree to waive our subrogation and allow you to accept the Geico

[l]imits.” Appellant’s App. p. 57.

       On October 1, 2010, Hartwell, in exchange to $25,000.00, executed the Release in

favor of Geico, which read in operational part as follows:

       I/we, Angela and John Hartwell, Releasor(s) of 8577 North Breeding Road,
       City of Dupont, State of Indiana, being over the age of majority, for and in
       consideration of a check for the sum of Twenty Five Thousand dollars
       ($25,000.00), lawful money of the United States of America to me/us in hand
       paid, the receipt of which is hereby acknowledged, do for myself/ourselves,
       my/our heirs, executors, administrators, successors and assigns, hereby remise,
       release, and forever discharge William McRoberts and Geico Indemnity
       Company, Releasee(s), successors and assigns, and/or his, her or their
       associates, heirs, executors and administrators, and all other persons, firms or
       corporations of and from any and every claim, demand, right or cause of
       action, of whatever kind or nature, on account of or in any way growing out of
       any and all personal injuries and consequences thereof, including, but not
       limited to, all causes of action preserved by the wrongful death statute
       applicable, any loss of services and consortium, any injuries which may exist


                                              3
      but which at this time are unknown and unanticipated and which may develop
      at some time in the future, all unforeseen developments arising from known
      injuries, and any and all property damage resulting or to result from an
      accident that occurred on or about the 2nd day of June, 2009, at or near Wilson
      Avenue, and especially all liability arising out of said accident including, but
      not limited to, all liability for contribution and/or indemnity.
      AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID
      SETTLEMENT AND PAYMENT, IT IS EXPRESSLY WARRANTED AND
      AGREED:

      (1)     That I/we understand fully that this is a final settlement and disposition
      of the disputes both as to the legal liability for said accident, casualty, or event
      and as to the nature of the injury, illness, disease and/or damage which I/we
      have sustained and I/we understand that liability is denied by William
      McRoberts and Geico Indemnity Company Releasee(s), and it is covenanted
      and agrees between the Releasor(s) and Releasee(s) herein that this release and
      settlement is not to be construed as an admission of liability on the part of the
      Releasor(s) of his agents and servants, and any claim of whatever kind or
      nature the Releasee(s) against said Releasor(s) of his agents and servants, and
      any claim of whatever kind or nature the Releasee(s) might have or hereafter
      having arising from said accident is expressly reserved to them.

      (2)    That I/we do hereby for myself/ourselves, my/our heirs, executors,
      administrators, successors, assigns and next of kin covenant to indemnify and
      save harmless the Releasee(s) from any and every claim or demand of every
      kind or character arising from said accident which may ever be asserted.

      (3)    That no promise, agreement, statement or representation not herein
      expressed has been made to or relied upon by me/us and this release contains
      the entire agreement between the parties.

Appellant’s App. p. 59.

      On October 3, 2011, Hartwell filed suit against Indiana Insurance, seeking coverage

pursuant to her underinsured motorist coverage. On February 17, 2012, Indiana Insurance

moved for summary judgment, to which Hartwell replied on March 20. On April 11, 2013,

the trial court granted summary judgment in Indiana Insurance’s favor.

                             DISCUSSION AND DECISION


                                               4
       When reviewing the grant or denial of a summary judgment motion, we apply the

same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc.,

741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is appropriate only where the

evidence shows there is no genuine issue of material fact and the moving party is entitled to a

judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences

drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a

motion for summary judgment, a party must demonstrate that the undisputed material facts

negate at least one element of the other party’s claim. Id. Once the moving party has met

this burden with a prima facie showing, the burden shifts to the nonmoving party to establish

that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears

the burden of persuading us that the trial court erred. Id.

                     Whether the Release Covers Indiana Insurance

       Hartwell argues that the Release is ambiguous, precluding summary judgment in

Indiana Insurance’s favor and necessitating trial on the question of who the parties intended

to release. Indiana Insurance argues that the Release, although executed in favor of

McRoberts and Geico, unambiguously released Indiana Insurance as well from all possible

liability arising out of Hartwell’s accident.

       A release executed in exchange for proper consideration works to release only
       those parties to the agreement unless it is clear from the document that others
       are to be released as well. A release, as with any contract, should be
       interpreted according to the standard rules of contract law. Therefore, from
       this point forward, release documents shall be interpreted in the same manner
       as any other contract document, with the intention of the parties regarding the
       purpose of the document governing.



                                                5
Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588 N.E.2d 1264, 1267 (Ind. 1992).

       “The first rule in the interpretation of contracts is to give meaning and effect to the

intention of the parties as expressed in the language of the contract.” Stech v. Panel Mart,

Inc., 434 N.E.2d 97, 100 (Ind. Ct. App. 1982). “In ascertaining the intention of the parties, a

court must construe the instrument as a whole, giving effect to every portion, if possible.” Id.

“In interpreting an unambiguous contract, a court gives effect to the parties’ intentions as

expressed in the four corners of the instrument, and clear, plain, and unambiguous terms are

conclusive of that intent.” Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 1142 (citing

Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr. of Ft. Wayne, Inc., 683 N.E.2d

243, 247 (Ind. Ct. App. 1997)). “Courts may not construe clear and unambiguous provisions,

nor may it add provisions not agreed upon by the parties.” Id. (citing Hyperbaric Oxygen

Therapy Sys., 683 N.E.2d at 247-48). However, it is well-settled that “[i]f the terms of a

written contract are ambiguous, it is the responsibility of the trier-of-fact to ascertain the facts

necessary to construe the contract.” Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d

396, 401 (Ind. Ct. App. 2007). “A contract is ambiguous only if reasonable persons would

differ as to the meaning of its terms.” Oxford Fin. Group, 795 N.E.2d at 1142 (citing Beam

v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002)).

       We conclude that, read as a whole, the Release is ambiguous. Indiana Insurance is

correct that it purports to release “all other persons, firms or corporations” from liability

related to Hartwell’s accident. Appellant’s App. p. 59. This phrase, however, is contradicted

by other provisions of the Release. First, only McRoberts and Geico are identified as



                                                 6
“Releasee(s)[.]” Appellant’s App. p. 59. While it is possible that this term was meant to be

non-exhaustive, it is just as reasonable to read it as exhaustive. Moreover, in paragraph (1),

only McRoberts and Geico are mentioned as denying liability, not “all persons.” Finally, in

paragraph (2), the Hartwells agree “to indemnify and save harmless the Releasee(s) from any

and every claim or demand of every kind or character arising from said accident which may

ever be asserted[,]” not “all persons.” Appellant’s App. p. 59 (emphasis added). In

summary, it is just as reasonable to conclude that the Release covers Indiana Insurance as it is

to conclude that it does not. Consequently, we must conclude that the trial court erred in

granting summary judgment in favor of Indiana Insurance and remand for trial on the

question, with the fact-finder being able to consider parole evidence regarding Hartwell’s and

Geico’s intent. See Huffman, 588 N.E.2d at 1268 (“The agreement in this case did not clearly

identify who was intended to be released by its provisions. Consequently, this case must be

remanded to the trial court for a determination as to whether the parties to the release

intended it to release MCCSC.”).

       The judgment of the trial court is reversed, and the cause is remanded for further

proceedings.1

BAILEY, J., and MAY, J., concur.




       1
           Because we have concluded that the Release was inherently ambiguous, we need not address
Hartwell’s other arguments.

                                                7
