                  NOTICE                          NO. 5-05-0447
 Decision filed 07/12/06. The text of
 this decision may be changed or                     IN THE
 corrected prior to the filing of a
 Petition   for    Rehearing   or   the   APPELLATE COURT OF ILLINOIS
 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________
FARMERS AUTOMOBILE INSURANCE           )    Appeal from the
ASSOCIATION,                           )    Circuit Court of
                                       )    St. Clair County.
      Plaintiff-Appellant,             )
                                       )
v.                                     )    No. 05-MR-95
                                       )
LINDA S. KRAEMER,                      )    Honorable
                                       )    Richard A. Aguirre,
      Defendant-Appellee.              )    Judge, presiding.
________________________________________________________________________

            JUSTICE HOPKINS delivered the opinion of the court:

            The plaintiff, Farmers Automobile Insurance Association (Farmers), filed its

complaint for a declaratory judgment in the circuit court of St. Clair County, seeking a
declaration that it was not required to pay underinsured-motorist-coverage benefits to the

defendant, Linda S. Kraemer. The circuit court construed a release that Kraemer had

executed, determined that she did not intend to release Farmers, and entered a judgment in

her favor. On appeal, Farmers contends that the release Kraemer executed discharged
Farmers from its obligation to pay her underinsured-motorist-coverage benefits.

            We affirm.
                                                     FACTS

            Farmers issued its policy of insurance to Kraemer and her husband as named insureds.
The policy provided for automobile liability insurance on a primary basis and included

underinsured-motorist coverage, with an effective policy period of November 16, 2002, to
May 16, 2003, and coverage limits of $100,000 for each person and $300,000 for each


                                                       1
occurrence. On January 10, 2003, Kraemer sustained injuries in a motor vehicle accident
caused by Rudy Teason. Following the accident, Allstate Insurance Company (Allstate), on

behalf of Teason, its named insured, offered to Kraemer its policy limit of $25,000 in
exchange for a release memorializing the case's settlement. Kraemer accepted the $25,000
offered by Allstate, and on December 20, 2004, Kraemer and her husband executed the

following release:
             "This Indenture Witnesseth that we[,] in consideration of the sum of
      Twenty[-]Five Thousand & 00/100 dollars ($25,000.00), receipt whereof is hereby

      acknowledged, do hereby for our heirs, personal representatives[,] and assign[s][]

      release and forever discharge Rudy Teason and any other person, firm[,] or
      corporation charged or chargeable with responsibility of liability, [and] their heirs,

      representative[,] or assigns, form [sic] any and all claims, demands, damages, costs,

      expenses, loss of service, action[,] and causes of action arising from any act or

      occurrence up to the present time, and particularly on account of all personal injury,
      bodily injury, disability, property damage, loss[,] or damage of any kind sustained or

      that we may hereafter sustain in consequence of an accident that occurred on or about

      the 10th day of January, 2003, at or near North Main Street, Dupo, IL.
                                            ***
             We, each of the undersigned, further understand that such liability as we may
      or shall have incurred, directly or indirectly, in connection with or for damages arising

      out of the accident to each person or organization, release and discharge of liability
      herein, and to any other person or organization, is expressly reserved to each of them,
      such liability not being waived, agreed upon, discharged[,] nor [sic] settled by this

      release."
      On March 21, 2005, Farmers filed its complaint for a declaratory judgment. Farmers

                                              2
requested that the circuit court declare, pursuant to the release, that it was not liable under its
policy of insurance to provide underinsured-motorist-coverage benefits to Kraemer for the

injuries she had received in the January 10, 2003, motor vehicle occurrence. On May 6,
2005, Farmers filed a motion for a judgment on the pleadings. See 735 ILCS 5/2-615(e)
(West 2004). On July 20, 2005, after hearing arguments, the circuit court held that the

parties to the release did not intend to release Kraemer's underinsured-motorist claim against
Farmers. On August 3, 2005, Farmers filed a notice of appeal.
                                          ANALYSIS

       Farmers argues that the release discharged its duty to pay underinsured-motorist-

coverage benefits to Kraemer.
       "Judgment on the pleadings is proper only where no genuine issue of material fact

exists and the moving party is entitled to judgment as a matter of law." M.A.K. v. Rush-

Presbyterian-St. Luke's Medical Center, 198 Ill. 2d 249, 255 (2001). "In ruling on a motion

for judgment on the pleadings, only those facts apparent from the face of the pleadings,
matters subject to judicial notice, and judicial admissions in the record may be considered."

M.A.K., 198 Ill. 2d at 255.

       "A release is a contract wherein a party relinquishes a claim to a person against whom
the claim exists, and a release is subject to the rules governing the construction of contracts."

Carona v. Illinois Central Gulf R.R. Co., 203 Ill. App. 3d 947, 951 (1990). Where a court
determines that a contract is ambiguous as a matter of law, its construction becomes a
question of fact, and parol evidence is admissible to ascertain the parties' intent. Farm Credit

Bank of St. Louis v. Whitlock, 144 Ill. 2d 440, 447 (1991). A contract is ambiguous if it is
capable of being understood in more than one sense. Farm Credit Bank of St. Louis, 144 Ill.
2d at 447.

       General words of release are restrained in effect by the specific recitals contained in

                                                3
the instrument. Carona, 203 Ill. App. 3d at 951; Gladinus v. Laughlin, 51 Ill. App. 3d 694,
696 (1977); Kerr v. Schrempp, 325 Ill. App. 614, 619 (1945). When a release recites general

words that follow particular words, the general words are limited to things or persons of the
same kind or class as those which are particularly mentioned. Gage v. Cameron, 212 Ill. 146,
157 (1904). Illinois courts restrict the language of a general release to the things or persons

intended to be released and refuse to interpret generalities to defeat a valid claim not then in
the minds of the parties. Thornwood, Inc. v. Jenner & Block, 344 Ill. App. 3d 15, 21 (2003);
Martin v. Illinois Farmers Insurance, 318 Ill. App. 3d 751, 762 (2000); Carlile v. Snap-on

Tools, 271 Ill. App. 3d 833, 839 (1995); Beauvoir v. Rush-Presbyterian-St. Luke's Medical

Center, 137 Ill. App. 3d 294, 304 (1985); Gladinus, 51 Ill. App. 3d at 696.
       The scope and effect of a release are controlled by the intention of the parties. Carlile,

271 Ill. App. 3d at 838. Particularly with a release, this intent " 'is discerned from the

language used and the circumstances of the transaction.' " (Emphasis in original.) Carlile,

271 Ill. App. 3d at 838 (quoting Carona, 203 Ill. App. 3d at 951); see also First Bank & Trust
Co. of Illinois v. Village of Orland Hills, 338 Ill. App. 3d 35, 46 (2003); In re Estate of

Constantine, 305 Ill. App. 3d 256, 260 (1999); Gladinus, 51 Ill. App. 3d at 696. When

considering the circumstances surrounding the execution of a release, we do not change the
terms of the agreement or create an ambiguity where none exists. First Bank & Trust Co. of

Illinois, 338 Ill. App. 3d at 46; In re Estate of Constantine, 305 Ill. App. 3d at 260. Instead,
we consider the circumstances surrounding the document's execution as a part of the
agreement, reflecting the clear intent of the signators. First Bank & Trust Co. of Illinois, 338

Ill. App. 3d at 46; In re Estate of Constantine, 305 Ill. App. 3d at 260. No form of words, no
matter how all-encompassing, will foreclose a court's scrutiny of a release or prevent a
reviewing court from inquiring into the surrounding circumstances to ascertain whether it

accurately reflected the parties' intention. Carlile, 271 Ill. App. 3d at 839 (courts are

                                               4
reluctant to apply the parol evidence rule to a release and instead consider the circumstances
of the release transaction to determine the parties' intention). A release will not "be construed

to include claims not within the contemplation of the parties." Carlile, 271 Ill. App. 3d at
838.
       Farmers relies on Martin, 318 Ill. App. 3d 751, to support its argument that the release

discharged Farmers' contractual obligation to pay underinsured-motorist-coverage benefits.
In Martin, the plaintiff's husband was killed while riding as a passenger in a vehicle driven
by his father, who had liability insurance with the defendant Illinois Farmers Insurance

Company. Martin, 318 Ill. App. 3d at 754. Following the accident, the defendant tendered

to the plaintiff its policy limit of liability, and the plaintiff executed a release " 'discharg[ing]
[her husband's father], his principals, agents, representatives[,] and insurance carriers from

any and all rights, claims, demands, and damages of any kind, known or unknown, existing

or arising in the future, resulting from or related to personal injuries, death[,] or property

damage[] arising from [the] accident.' " Martin, 318 Ill. App. 3d at 756. The plaintiff
claimed that the defendant was still obligated to pay $100,000 in underinsured-motorist-

coverage benefits. Martin, 318 Ill. App. 3d at 756. The First District Appellate Court held

that the underinsured-motorist claim was within the scope of the language of the release.
Martin, 318 Ill. App. 3d at 762.

       The First District's decision in Martin is not dispositive of the present case. The
release in Martin stated that the plaintiff had released and forever discharged her husband's
father (the driver of the vehicle) and "his *** insurance carriers." Martin, 318 Ill. App. 3d at

756. The plaintiff sought underinsured-motorist-coverage benefits from the defendant as the
driver's insurance carrier, with whom she had executed the release. Martin, 318 Ill. App. 3d
at 761. Here, Kraemer does not argue that she is entitled to additional underinsured-motorist-

coverage benefits from Allstate, with whom she executed the release. Instead, she seeks

                                                 5
underinsured-motorist-coverage benefits from Farmers, her insurance carrier, who was not a
party to the release.

       We follow our own reasoning in Gladinus, 51 Ill. App. 3d at 696. In Gladinus, this
court held that a reference to property damage in the code on the face of a check effectively
limited the general release language on the back of the check to claims for property damage

arising out of the accident. Gladinus, 51 Ill. App. 3d at 696. This court rejected the all-
inclusive effect of the release, on the basis that the parties' intention controls the scope and
effect of the release and that "such intent is determined from the language of the instrument

when read in light of the circumstances surrounding the transaction." Gladinus, 51 Ill. App.

3d at 696. Considering that the check amount was the exact amount of the property damage
estimate and that the full extent of the plaintiff's personal injuries was unknown when the

check was issued and endorsed, those undisputed facts permitted no conclusion other than

that the parties intended to release only those claims relating to property damage, not the

plaintiff's action for personal injuries. Gladinus, 51 Ill. App. 3d at 697.
       In the present case, the release stated that, in receipt of $25,000, Kraemer

"discharge[d] Rudy Teason and any other person, firm[,] or corporation charged or

chargeable with responsibility of liability, [and] their heirs, representative[,] or assigns." The
words "any other *** corporation charged or chargeable with responsibility of liability" are

general words limited by the specific identification of the tortfeasor, Teason. See Gladinus,
51 Ill. App. 3d at 696. The release is therefore ambiguous regarding whether Farmers, who
was not a party to the release and who was not Teason's insurer, was a corporation

chargeable with Teason's tortious liability and thereby released from its contractual liability
to Kraemer pursuant to its policy of insurance issued to her.
       When we consider the surrounding circumstances, we find that the parties clearly did

not intend to discharge Farmers' obligation to pay underinsured-motorist-coverage benefits to

                                                6
Kraemer. See Carona, 203 Ill. App. 3d at 951. Kraemer accepted $25,000, Allstate's policy
limit of liability pursuant to its agreement with Teason, in exchange for signing Allstate's

release form that explicitly released Teason. Farmers was not a party to the release and gave
no consideration for the release. Farmers' liability for underinsured-motorist-coverage
benefits was a contractual obligation pursuant to its policy with Kraemer, and Kraemer paid

premiums to Farmers for the underinsured-motorist coverage. See Hoglund v. State Farm
Mutual Automobile Insurance Co., 148 Ill. 2d 272, 278 (1992) (when a premium is paid for
uninsured-motorist protection and the protection is not there, the policyholder has been

denied substantial economic value in return for the premiums paid). If Farmers, who had

accepted Kraemer's underinsured-motorist-coverage premiums, were discharged by the
release, it would receive a windfall never intended by the parties. See Beauvoir, 137 Ill.

App. 3d at 304 (a general release of "all claims of any kind" did not release a claim for

retaliatory discharge because Illinois courts refuse to interpret generalities to defeat a valid

claim not then in the minds of the parties). We therefore restrict the language of the release
to the persons intended to be released and refuse to interpret generalities to defeat a valid

claim not then in the parties' minds. See Thornwood, Inc., 344 Ill. App. 3d at 21; Martin, 318

Ill. App. 3d at 762; Carlile, 271 Ill. App. 3d at 839; Gladinus, 51 Ill. App. 3d at 696.
       Accordingly, we decline to find that Kraemer, by executing an agreement intended to

release Allstate and Teason from liability in excess of Allstate's $25,000 policy limit,
released Farmers from its contractual obligation to pay underinsured-motorist-coverage
benefits pursuant to the policy it issued to Kraemer. Accordingly, we affirm the circuit

court's order entering a judgment in favor of Kraemer.
                                       CONCLUSION
       For the foregoing reasons, the judgment of the circuit court of St. Clair County is

affirmed.

                                               7
Affirmed.



WELCH and McGLYNN, JJ., concur.




                              8
                                        NO. 5-05-0447
                                            IN THE

                             APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      FARMERS AUTOMOBILE INSURANCE          )     Appeal from the
      ASSOCIATION,                          )     Circuit Court of
                                            )     St. Clair County.
           Plaintiff-Appellant,             )
                                            )
      v.                                    )     No. 05-MR-95
                                            )
      LINDA S. KRAEMER,                     )     Honorable
                                            )     Richard A. Aguirre,
           Defendant-Appellee.              )     Judge, presiding.
___________________________________________________________________________________

Opinion Filed:   July 12, 2006
___________________________________________________________________________________

Justices:         Honorable Terrence J. Hopkins, J.

                 Honorable Thomas M. Welch, J.
                 Honorable Stephen P. McGlynn, J.
                 Concur
___________________________________________________________________________________

Attorneys        Robert Marc Chemers, Anne E. Wall, Pretzel & Stouffer, Chartered, One South
for              Wacker Drive, Suite 2500, Chicago, IL 60606
Appellant
___________________________________________________________________________________

Attorneys        Terry L. Peebles, 3944 Mississippi Avenue, P.O. Box 1677, Cahokia, IL 62206;
for              Clyde L. Kuehn, The Kuehn Law Firm, 23 Public Square, Suite 450, Belleville,
Appellee         IL 62220
___________________________________________________________________________________
