Opinion
No. 59218-1-I.
September 24, 2007.
Appeal from a judgment of the Superior Court for King County, No. 06-2-05564-1, Richard A. Jones, J., entered November 9, 2006.
Affirmed by unpublished per curiam opinion.
Thai Pham appeals the superior court's order granting summary judgment against him in a personal injury lawsuit. Pham also contends the court erred in refusing to grant him a continuance to conduct additional discovery. Finding no error, we affirm.
FACTS
Thai Pham was injured in a car accident caused by another driver, Jonie Ng. Ng's insurer contacted Pham the following day to investigate Pham's injuries and other damages. Pham complained of head, neck, and elbow pain, but had not yet seen a doctor. Insurance adjuster Dawn Houser offered Pham $400 for full and final release of any and all claims against Ng and her parents (collectively, Ng). Pham accepted the offer, and the insurer sent Pham a check for $400. Pham later returned the check
Several months later, Pham filed suit against Ng. Pham alleged the accident caused permanent physical injuries and emotional distress for which he sought damages "in excess of $50,000." Clerk's Papers at 3. In his deposition, Pham acknowledged that he had entered into a settlement agreement with the insurer, but that he had changed his mind.
Before the parties could engage in mandatory arbitration, Ng moved for summary judgment. Relying on the transcript of Pham's conversation with Houser and Pham's deposition testimony, Ng argued that Pham had released his claims and had shown no grounds to void the release. Pham opposed the motion on grounds that Houser obtained the release by confusing Pham and misrepresenting the nature of the settlement. Pham also requested a continuance to allow him to conduct additional discovery. Specifically, Pham wished to depose Houser and to obtain a copy of his recorded conversation with Houser, as well as Houser's notes and files. The trial court denied Pham's motion for continuance and granted Ng summary judgment. Pham appeals both rulings.
DISCUSSION
It is undisputed that Pham accepted the settlement offer made by Ng's insurer. If that release is valid, then it precludes Pham's lawsuit and summary judgment of dismissal was proper. We apply the usual standard of review for summary judgment.
This court reviews a grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing thefacts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. U.S. Bank Nat'l Ass'n v. Whitney, 119 Wn. App. 339, 347, 81 P.3d 135 (2003). Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." CR 56(c).
A release is a contract and is governed by ordinary contract principles. Stottlemyre v. Reed, 35 Wn. App. 169, 171, 665 P.2d 1383 (1983). Under contract law, a release is voidable if induced by fraud, misrepresentation, or overreaching or if there is clear and convincing evidence of mutual mistake. Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wn.2d 178, 187, 840 P.2d 851 (1992).
Pham contends that his release was obtained through misrepresentation or overreaching, but has provided evidence of neither. Aside from his declaration indicating he believed that the $400 settlement reflected the anticipated cost of emergency room expenses, nothing in the record lends any support to the notion that Houser misrepresented the nature of the settlement. Pham did not contend that Houser told him he would be able to collect more than $400 should his injuries require treatment beyond that provided in the emergency room. Rather, the transcript of their conversation shows that Houser accurately presented the terms of the agreement and that Pham understood these terms.
Q: And we would like to close this claim at this time. To do so we need a release of any and all claims. In an effort to resolve the claim we're making an offer of $400 settlement in exchange for the full and final release of any and all claims against [Ng]. This amount is a gross settlement and is inclusive of any and all economic and non-economic damages. It's also inclusive of any and all leans [sic] to include the medical liens. And Thai, do you accept this offer?
A: Yes, I do.
Q: And do you understand that this is a full and final release of any and all claims arising out the accident?
A: Yea.
Q: And do you understand the terms and conditions of the settlement?
A: I do.
Q: And do you further understand entering into this legal agreement you have no further legal recourse against [Ng] in regards to this accident?
A: Yea.
Q: Pardon me?
A: I said OK.
Plerk's Papers at 35-36.
Pham also argues that his release is ineffective because of overreaching caused by Houser's failure to define the terms "economic and non-economic damages." We first note that Pham expressed no confusion over the terms during the conversation and asked for no clarification. Further, in the context of the entire exchange, it was unnecessary to define these terms, which describe both out-of-pocket expenses and damages for pain and suffering. Houser clearly stated that the agreement represented a "full and final release of any and all claims," which would encompass both types of damages, and Pham affirmed his understanding. Clerk's Papers at 35 (emphasis added). Pham's own statements thus belie his argument. On this record, the superior court properly granted summary judgment.
Pham contends, however, that the court should have allowed him more time to obtain the evidence necessary to support his claim and defeat summary judgment. We disagree.
Civil Rule 56(f) allows the court to order a continuance for further discovery when "it appear[s] from the affidavits of a party opposing the [summary judgment] motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition." CR 56(f). A court's denial of a CR 56(f) motion is reviewed for abuse of discretion. Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990). A court may deny a motion for continuance when
(1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989). Only one of the qualifying grounds is needed for denial. Gross v. Sunding, 139 Wn. App. 54, 68, 161 P.3d 380 (2007).
Pham was not entitled to a continuance because he offered no good reason for the delay in obtaining the desired evidence. The case had been pending for several months before Ng moved for summary judgment, and Pham was aware of Ng's defense of release from the outset. Although Pham made two informal discovery requests by letter to Ng's counsel, he never moved to compel compliance with those requests, never noted the deposition of Houser, and never served Ng with requests for production of the tape and Houser's file.
This case differs, therefore, from Tellevik v. Real Property Known as 31641 West Rutherford Street, 120 Wn.2d 68, 838 P.2d 111 (1992), upon which Pham principally relies. There, our Supreme Court held it was an abuse of discretion to deny the plaintiff's Rule 56(f) motion when the defendant had failed to respond to both informal and formal discovery requests. Id. at 91. Pham proffers no reason or argument why he never attempted to obtain the desired evidence through formal discovery. "[F]ailure to conduct discovery diligently is grounds for denial of a Rule 56(f) motion." Pfingston v. Ronan Engineering Co., 284 F.3d 999, 1005 (9th Cir. 2002).
Ng argues Pham was not entitled to discover the evidence, which she contends was either unavailable or protected work product. That issue is not before us, and we decline to addresst.
The federal equivalent to Washington's Civil Rule 56(f) differs only by replacing male pronouns with gender-neutral language.
In addition, Pham did not state what evidence would be established through the additional discovery, or how the evidence would raise a genuine issue of material fact. The court did not err.
On appeal, Pham asserts that Houser's deposition would "show that her intent in making the call was to trick Pham into making a statement that could be construed as accepting a settlement of his bodily injury claim; and the authenticated tape would show that the $400.00 represented the anticipated costs for Pham being examined at the emergency room." App. Br. at 9. Even if the desired evidence would show exactly that, Pham does not explain how this evidence would raise a genuine issue of material fact.
Affirmed.