Menendez v. Perishable Distributors, Inc.
Menendez v. Perishable Distributors, Inc.
Dissenting Opinion
dissenting.
I dissent for the reason that I would adopt the “center of gravity” theory as indicated in my dissenting opinion in General Tel. Co. of the Southeast v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984). That
Opinion of the Court
The United States Court of Appeals for the Eleventh Circuit sent us three certified questions. The answers to questions one and two are that Florida law applies. The third question is mooted by our answers above.
The facts of the case may be found in greater detail in Menendez v. Perishable Distributors, Inc., 744 F2d 1551 (11th Cir. 1984). Briefly
In Georgia a release is “subject to the same rules as govern ordinary contracts in writing, and parol evidence is not admissible to conItradict or vary the terms or stipulations.” Southern Bell Tel. &c. Co. v. Smith, 129 Ga. 558 (59 SE 215) (1907); See also Henslee v. Houston, 566 F2d 475, 479-80 (5th Cir. 1978). A general release or a release which contains no reservations, executed in favor of one joint tortfeasor, in full settlement of damages, releases all joint tortfeasors. Zimmerman’s, Inc. v. McDonough Constr. Co., 240 Ga. 317, 319 (240 SE2d 864) (1977). Florida has, by statute, abolished the common law rule that the release of one tortfeasor discharges the other tortfeasors. F.S.A. § 768.041.
QUESTION ONE: “Under the choice of law rules of the State of Georgia, what state’s substantive law governs the effect of a release that was executed in the State of Florida and that by its terms, forever discharged ‘all . . . persons, firms or corporations . . . from any and all claims, demands, actions causes of actions or suits of any kind or nature whatsoever’ arising from an injury-causing accident which occurred in Georgia?”
In Georgia, a release is a contract. See Southern Bell Tel. &c. Co., supra at p. 558. Under the holding of General Tel. Co. of the Southeast v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984), the Florida law controls the effect of the release under the rule of lex loci contractus.
QUESTION TWO: “Under the choice of law rules of the State of Georgia, what state’s substantive law governs the admissibility of extrinsic evidence establishing the intent of the contracting parties who executed a release in the State of Florida that, by its terms, forever
The rule of lex loci contractus controls all substantive matters, such as “the nature, construction and interpretation of contracts. [Cits.]” Cox v. Adams, 2 Ga. 158, 165 (1847). The rule of “lex fori controls all matters affecting only the remedy, such as rules of evidence, methods of shifting the burden of proof, and the presumptions arising from given states of fact. [Cit.]” Hill v. Chattanooga R. &c. Co., 21 Ga. App. 104 (93 SE 1027) (1917).
The parol evidence rule “ ‘is not one merely of evidence, but is one of positive or substantive law founded upon the substantive rights of the parties.’ [Cit.]” Albany Federal Savings &c. Assn. v. Henderson, 198 Ga. 116, 143 (31 SE 20) (1944); See also Dunn v. Welsh, 62 Ga. 241, 244 (1879). Likewise, contemporaneous documents are to be considered “in pari materia” with a form release “so that the intention of the parties may be ascertained and allowed to control.” Ga. Hwy. Express, v. United Parcel Service, 164 Ga. App. 674 (297 SE2d 497) (1982). Because this extrinsic evidence consisting of contemporaneous documents may be used to determine the intention of the parties, and thus their substantive rights, the law of Florida controls under the rule of lex loci contractus.
QUESTION THREE: “Assuming the answers to the previous questions are to the effect that Georgia law governs: Under the substantive law of the State of Georgia, can litigants stipulate during oral argument before an appellate court to choice of law rules that differ from the choice of law rules later pronounced by the courts of the State of Georgia, where accepting the stipulation would result in an application of another state’s substantive law to govern the effect of a release and the admissibility of extrinsic evidence establishing the intent of the contracting parties?”
Our answer to questions one and two above make the third question moot.
Certified questions answered.
See Ehrenzweig, Release of Concurrent Tortfeasors in the Conflict of Laws: Law and Reason Versus the Restatement, 46 Va.L.Rev. 713 (1960).
We acknowledge appellee’s argument regarding pleading and proof, and note that “a federal court may take judicial notice of foreign law regardless of state court practice.” Old Hickory Products Co. v. Hickory Specialties, Inc., 366 FSupp. 913 (5th Cir. 1973).
Reference
- Full Case Name
- MENENDEZ Et Al. v. PERISHABLE DISTRIBUTORS, INC. Et Al.
- Cited By
- 27 cases
- Status
- Published