Campos v. Williams
Campos v. Williams
Opinion of the Court
Appellants, Quirino Campos et al., appeal the state court’s order granting appellee Dairyland Insurance Company’s motion for summary judgment against appellants Campos and Jose Gonzalez, and dismissing the complaint of said appellants/plaintiffs.
Suit for damages was brought by Campos, Gonzalez and Porfirio
1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).
2. The enumeration of error does not reasonably encompass a claim that the trial court erred in dismissing “the complaint of [appellants/plaintiffs] Quirino Campos and Jose Gonzalez.” Accordingly, the only appellate issue preserved by the enumeration is whether the trial court erred in granting summary judgment in favor of Dairyland Insurance Company. Jones v. Sauls, 213 Ga. App. 55, 58 (443 SE2d 693) (issue not reasonably contained within the enumeration of errors).
3. Separate documents entitled “Indemnity and Hold Harmless Agreement” were signed by appellants Campos and Gonzalez. These documents executed in consideration of a certain sum contained both release and hold harmless agreements. The release agreements are ambiguous in that the printed portion of each agreement purports, inter alia, to release and forever discharge, “Dairyland Insurance Company, Zamorano Porfirio Vasquez, and Porfirio Vasquez . . . from any and all, and all manner of, actions and causes of action . . . suits . . . judgments ... claims and demands whatsoever in law or equity . . . and especially from all liability arising out of an occurrence that happened on or about September 19, 1991, at or near Chamblee, Atlanta, Ga.” Immediately thereafter there appears this inserted typewritten sentence: “Notwithstanding the above, this release only applies to Porfirio Vasquez and is not to be construed as a release of any other parties including Willie Williams.” Thereafter, in a numbered paragraph, the agreement contained a hold harmless clause whereby appellants Campos and Gonzalez agreed to indemnify and hold harmless the certain parties released from any and every claim or demand of every kind and character which may be asserted
The release portion of the agreement is ambiguous whether only Porfirio Vasquez was released or whether Dairyland Insurance Company, Zamorano Porfirio Vasquez, and Porfirio Vasquez all were released thereby. Clearly each of these persons was “named” in the release within the meaning of Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902). A release or settlement agreement is a form of contract subject to construction by the court. Darby v. Mathis, 212 Ga. App. 444 (1) (441 SE2d 905). Even ambiguous contracts are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308).
Appellants, however, assert that in this case the controlling rule of contract construction is OCGA § 13-2-2 (7), which provides that when a contract is partly printed and partly written, the latter part is entitled to most consideration. Thus, appellants assert that the added typewritten portions of the contract must control over the printed portions of the agreement. We find, under the attendant circumstances, that this rule of construction is not controlling in this case. At the outset, we note that the major portion of the agreement not only was printed but had been tailored to list expressly in their printed portions the names of persons, including Dairyland, who were to be released, and the specific incident for which the release was to apply. The indemnity and hold harmless portions of the agreement were not merely part of a fill-in-the-blanks form. Accordingly, we find that the typewritten portions of the form were not necessarily intended by both parties to be controlling. Neither can we look to the basic rule that an ambiguous contract is to be construed against the maker, as the affidavit of the attorney who negotiated the releases for appellants reveals that the releases were modified after discussion with a representative of Dairyland. The only reasonable inference to be drawn from these facts is that the typewritten modification to the form either was made by appellants’ negotiating attorney or, at a minimum, was the product of a joint effort between the parties. In either event, the ambiguity is not to be construed against Dairyland; we find the issue of who drafted the contract, in this instance, is at best a neutral factor. The cardinal rule of contract construction is to ascertain the intent of the parties. OCGA § 13-2-3. Pretermitting the issue whether Dairyland and the appellants all shared a common intent to release Dairyland from any and all claims arising from the incident is whether appellants Campos and Gonzalez knew of Dairy-
Judgment affirmed.
Concurring Opinion
concurring specially.
While I concur in the result, I write specially to note a potential problem with the majority’s interpretation of OCGA § 13-2-2 (7). I believe the exclusion of computer-generated forms from the scope of this Code section is unnecessary to a decision in this case and could create difficulties in the area of contract interpretation.
As the majority acknowledges, a cursory examination of the contract in question shows it was prepared by Dairyland with the assistance of a computer word processing program allowing the insertion of names and phrases into an existing form document. This document is no less a “form” because it exists in a computer’s memory rather than on paper. I believe it is reasonable to conclude, contrary to the majority’s assertion, that this computer-generated document is the modern equivalent of the offset-printed “fill-in-the-blanks form,” which shows signs of following the Linotype, carbon paper, and the scrivener into obscurity. A holding that forms generated by computer are somehow not forms will cause unanticipated and sometimes severe consequences in businesses which have already adopted these forms for general use.
Reference
- Full Case Name
- CAMPOS Et Al. v. WILLIAMS
- Cited By
- 4 cases
- Status
- Published