           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 9, 2009

                                       No. 08-60651                    Charles R. Fulbruge III
                                                                               Clerk

SPENCER BROWN; ARLENE BROWN; FLORENCE CLARKE;
STEVEN CLUNIS; LESLIE DAVIS; MIRIAM DAVIS; OLIVER FERGUSON;
ELAINE FORBES; ANNETTE GRANT; DELROY HINDS; BEVERLY
NELSON; VANICE PATRICK; RANDOLPH OWEN; MILEAN OWEN;
DAVID ROWE; DOREEN SHAW; WYCLIFE WILLIAMS; TELKA GRANT-
WILLIAMS; JULLAINE WISDOM; MAXINE WILLIAMS

                                                   Plaintiffs-Appellants
v.

CURTIZE D. JOHNSON; GREYHOUND BUS COMPANY, doing business as
GREYHOUND LINES, INC.

                                                   Defendants- Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               No. 2:08VB4KS-MTP


Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       The plaintiffs appeal the judgment of the district court enforcing releases
they signed in settlement of injuries sustained in a crash while they were
passengers on a chartered Greyhound bus.                 Based on our conclusion that



       *
          Pursuant to 5TH CIR . R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                        No. 08-60651

genuine issues of fact exist regarding the enforceability of those releases
obtained shortly after the accident, we reverse and remand.
                                               I.
      On March 14, 2007, a Greyhound charter carrying 30 Jamaican residents
to work as seasonal labor in Branson, Missouri was involved in an accident near
Wiggins, Mississippi. The accident occurred after the driver dropped his map
and bent down to retrieve it. The bus overturned on the highway median.
      Eleven passengers were transported by ambulance to three separate area
hospitals. Nineteen passengers (including all but four of the appellants) were
transported to hospitals by school bus because their injuries did not appear to
be significant, mainly contusions, sprains and strains.
      Greyhound dispatched adjusters from Frontier Adjusters to the scene and
to the various emergency rooms where the passengers had been transported.
The adjusters met the injured passengers at the hospitals and attempted to
reach settlements with them for their injuries. The passengers taken to one
hospital contacted their employer who advised that they should not sign any
release. Sixteen passengers (the “Releasors”) at the other two hospitals signed
releases in favor of Greyhound and received amounts ranging from $500 to
$1,500 each, in addition to payment of their medical expenses.1


      1
          The short release read as follows:

                                   GENERAL RELEASE
      I/We, in consideration of the payment of __________ Dollars $________, hereby
      release and forever discharge any and all claims whatsoever arising from an
      accident, occurrence of loss on or about _____________ at or near
      ________________.

      It is expressly agreed that this release and payment of said sum is not to be
      construed as an admission of liability.

      This is a full and final release and satisfaction of all claims.

Each release was appropriately completed when finalized.

                                               2
                                 No. 08-60651

      The Releasors claim that the adjusters used a number of fraudulent,
unfair bargaining tactics to mislead them into signing the releases. They assert
that the adjusters directed them to go individually into a separate room at the
hospital. They were told that Greyhound would only pay their medical expenses
if they signed a release. The adjusters refused to allow the accident victims to
take the release from the interview room to discuss it among themselves.
Further no transportation was provided from the hospital until each of the
passengers met with the adjusters. Individual affidavits from the Releasors,
indicate that the adjusters described the payments received as an “incentive,”
and the “release” as a form that would release them from the hospital. Some
understood that the form was to allow the adjusters to pay for the meals they
had at the hospital or as authorization for the adjusters to pay their medical
bills. Some of the plaintiffs were told they could get additional money if their
injuries did not heal as quickly as expected.
      The Releasors also claim that they were at several disadvantages in this
process. They had just been involved in a traumatic bus accident, were far from
home and without resources either to pay the hospital or for transportation to
continue their trip. Some were still in pain and had been given pain medication
and/or muscle relaxants. Greyhound denies all allegations.
      The Releasors repudiated their settlements by letter dated April 3, 2007,
and together with all of the non-releasing passengers filed suit against
Greyhound and the driver.     Four spouses added loss of consortium claims.
Greyhound filed a motion for summary judgment and motion to enforce
settlement, which the district court granted based on the unambiguous language
in the releases and the “more-than-nominal” consideration they received. After




                                       3
                                  No. 08-60651

the district court certified the judgment for appeal under Rule 54(b), the
Releasors and their spouses appealed.
                                       II.
      Although Mississippi law generally adheres to the principle that a party
is charged with knowledge of the terms of a contract that he signed, see, e.g. , MS
Credit Ctr., Inc. v. Horton, 926 So.2d 167, 177 (Miss. 2006), the state’s courts
have recognized exceptions for releases procured under circumstances
evidencing bad faith, disparity in bargaining power, coercion, duress, or other
inequities. For example, in Willis v. Marlar, 458 So.2d 722 (Miss. 1984), the
plaintiffs were involved in an automobile collision with the defendant. The
defendant’s insurer issued plaintiffs a check payable to them and their motor
credit company. Later the insurer’s agent met with the plaintiffs at a hurried
meeting during their lunch break at work at which time they signed an
“agreement and release.” Mrs. Willis stated that the agent asked her to sign a
document expressing her satisfaction with the used car she and her husband
bought to replace their wrecked vehicle. When she asked about blank spaces in
the document, the agent said he would fill them in. She signed the release
without reading it. Mr. Willis arrived next. He believed that the release form
was a statement that the insurer would pay “up to date” all medical bills and
signed it, also without reading it. He explained that it was a hurried meeting,
that the blanks were not filled in and that the title “Agreement and Release” was
concealed by the clip of a clipboard. The only payment the plaintiffs received,
other than the amount for their damaged car, was $424.00. The plaintiffs
argued that there was an absence of good faith and full understanding of legal
rights, that the nature and effect of the instrument was misrepresented, that
there was a failure of consideration and that Mrs. Willis was induced not to read
the instrument. The Mississippi Supreme Court reversed the district court’s
order directing verdict for the defendant on the release, finding that there was

                                        4
                                  No. 08-60651

an issue of fact for the jury on the releases. See also Alexander v. Myers, 219
So.2d 160, 160-63 (Miss. 1969)(decision to submit issue to jury was affirmed
where release obtained from person with sixth grade education and his 19-year
old wife was procured by fraud and misrepresentation. Adjuster told plaintiff
that the release was an authorization to thereafter consummate a settlement
and advance funds to appellee. Plaintiff could not read very well, could not read
the release and it was not read to him.); Tate v. Robinson, 78 So.2d 461 (Miss.
1955)(Issue of release’s enforceability should have been submitted to the jury
when injured party received a nominal sum in relation to her injuries, did not
know her rights and relied entirely on the representations of the adjuster who
induced her to sign the release without disclosing its terms.) These cases were
reaffirmed by the Mississippi Supreme Court in Royer Homes of Mississippi, Inc.
v. Chandeleur Homes, Inc., 857 So.2d 748, 757 (Miss. 2003), in which the
Supreme Court stated “What all the cases make clear is that where there are
allegations made as to the validity of a release due to fraud, misrepresentation,
adhesion or other inequities then the case properly goes to the jury or
factfinder,” after citing Tate, Alexander and Willis.
      The issue in this case then is whether the plaintiffs’ affidavits are
sufficient to create a genuine issue of fact as to “to fraud, misrepresentation,
adhesion or other inequities” in the execution of the releases. We conclude that
they do. The plaintiffs were slightly educated foreigners, although they do speak
and read English. They were without resources to pay the medical bills they
incurred as a result of the bus accident and dependent on Greyhound for
transportation to continue their journey to their jobs Missouri. The releases
were obtained shortly after the accident, when the plaintiffs described
themselves as nervous and shaky. Some were in pain and under the influence
of medication they had been given. The affidavits also reveal that the plaintiffs
were misled about the nature of the document they were asked to sign. Some

                                        5
                                   No. 08-60651

were told that they had to sign a form to receive an “incentive.” Others were told
that the release had to be signed so their medical bills could be paid.
      Based on the affidavits discussed above and Mississippi case law, issues
of fact are present on the enforceability of the releases and the district court’s
grant of summary judgment in favor of the defendants must be reversed.
                                        III.
      The district court dismissed the loss of consortium claims brought by
spouses of the Releasors on the basis that “loss of consortium claims are
derivative claims under state law, [accordingly] this Court’s enforcement of the
releases bars the signatories’ spouses claims as well,” citing J&J Timber Co. v.
Broome, 932 So.2d 1, 6 (Miss. 2006). Based on our disposition of the main claims
in this case, we need not consider whether the loss of consortium claims were
properly dismissed.
                                        IV.
      For the foregoing reasons, we reverse the judgment of the district court
dismissing plaintiffs’ personal injury and loss of consortium claims and remand
this case to the district court for further proceedings consistent with this opinion.
REVERSED and REMANDED.




                                         6
