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Dulworth v. Bermudez

Court of Appeals of Indiana

March 15, 2018

Eric Dulworth, Appellant-Plaintiff,
v.
Melissa Bermudez and Progressive Southeastern Insurance Company, Appellees-Defendants.

         Appeal from the Allen Superior Court The Honorable Craig J. Bobay, Judge Trial Court Cause No. 02D02-1608-PL-3983

          Kevin P. Podlaski Nicholas A. Podlaski Beers Mallers Backs & Salin, LLP Fort Wayne, Indiana ATTORNEYS FOR APPELLANT

          Attorney for Melissa Bermudez William A. Ramsey Barrett McNagny, LLP Fort Wayne, Indiana Attorneys for Progressive Southeastern Insurance Company J. Blake Hike Michael C. Ross Carson Boxberger, LLP Fort Wayne, Indiana ATTORNEYS FOR APPELLEES

          Riley, Judge.

         STATEMENT OF THE CASE

         [¶1] Appellant-Plaintiff, Eric Dulworth (Dulworth), appeals the trial court's summary judgment in favor of Appellees-Defendants, Melissa Bermudez (Bermudez) and Progressive Southeastern Insurance Company (Progressive), on Dulworth's Complaint for damages arising out of a vehicle collision.

         [¶2] We affirm.

         ISSUES

         [¶3] Dulworth presents us with four issues on appeal, which we consolidate and restate as the following two issues:

(1)Whether the trial court properly concluded that, as a matter of law, Bermudez was released under the terms of the Release Agreement executed between Dulworth and Charity Cherneski, even though Bermudez was not a party to the Release Agreement; and
(2)Whether the trial court properly concluded that, as a matter of law, Dulworth is barred from pursuing underinsured motorist benefits from Progressive.

         FACTS AND PROCEDURAL HISTORY

         [¶4] On August 22, 2014, Dulworth was involved in a motor vehicle accident on West Jefferson Boulevard, in Fort Wayne, Indiana. Approaching the intersection with Webster Street, Bermudez came to a sudden stop. Dulworth, who was driving behind Bermudez, stopped but Charity Cherneski (Cherneski), who was following Dulworth, failed to brake in time. Cherneski collided with Dulworth's vehicle, causing property damage and bodily injury.

         [¶5] On August 1, 2016, Dulworth resolved his bodily injury claim against Cherneski by entering into a Release of All Claims (Release), with Cherneski and her automobile insurer, Founders Insurance Company (Founders). This Release stated, in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That the undersigned, being of lawful age, for the sole consideration of Twenty-five thousand and 00/100 ($25, 000.00), to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does hereby and for my/our/its heirs, executors, administrators, successors, and assigns release, acquit and forever discharge Charity Cherneski and Founders Insurance Company and his, her, their, or its agents, servants, successors, heirs, executors, administrators, and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever which the undersigned now has/have or which may hereafter accrue on account of or in any way growing our of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 22nd day of August 2014, at or near Jefferson Street, Fort Wayne, Indiana.
It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releases deny liability therefore and intend merely to avoid litigation and buy their peace.
* * * *
This Release expressly reserves all rights of the person, or persons, on whose behalf the payment is made and the rights of all persons in privities or connected with them, and reserves to them their right to pursue their legal remedies, if any, including but not limited to claims for contribution, property damage and personal ...

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