Opinion
No. CV95 032 35 60 S
May 26, 2005
MEMORANDUM OF DECISION
Plaintiff Garry Sheppard claims that he contracted lung cancer, asbestosis and other related pathologies as a result of his exposure to asbestos dust, fibers and particles from products manufactured or distributed by the defendants. Plaintiff Joanne Sheppard, Garry Sheppard's wife, also, claims loss of consortium based upon her husband's injuries.
On or about June 30, 1998, plaintiffs executed a release, for consideration, to General Electric Company. At some point after execution of the release, Garry Sheppard was diagnosed with lung cancer and thereafter amended his pleadings to include General Electric Company as a defendant by motion dated August 14, 2004.
Plaintiff Annabelle Ryan alleges that she contracted plural plaques, mesothelioma and other asbestos related pathologies as a result of her exposure to asbestos dust, fibers and particles coming from products manufactured or distributed by the defendants. Plaintiff Patrick Ryan is the spouse of Annabelle Ryan and he alleges loss of consortium as a result of his wife's injuries.
Both Annabelle Ryan and Patrick Ryan executed releases to General Electric, in return for consideration, in the same form as the release executed by the Sheppards.
General Electric moved for Summary Judgment in both cases claiming that the asserted claims are barred by the releases.
The releases, signed by the parties in both cases, are broad in scope. They covered "any and all claims, actions, causes of actions, demands, rights, damages, costs, loss of services or consortium, expenses and compensation whatsoever, which the undersigned [the plaintiffs here] now has or which may hereafter accrue on account of or in any way grow out of all known and unknown, foreseen and unforeseen, bodily and personal injuries and property damage, and the consequences thereof (including the possible sequel thereof; including but not limited to asbestosis, corpulmonale, lung cancer, and other forms of cancer or mesothelioma), resulting or to result from exposure on the part of Garry Sheppard to an asbestos-containing material."
The releases included any claims for loss of consortium by Joanne Sheppard and Patrick Ryan. They provided that "[i]t is understood that this instrument covers any claim that a spouse of Garry Sheppard may now have or hereafter have against Releases for loss of services and/or consortium, and any claim of the Estate or Personal Representative of Garry Sheppard for wrongful death of Garry Sheppard, arising out of; or in any manner connected with the use of and/or exposure to any asbestos-containing material."
The releases further provided for future possible illnesses and/or conditions as follows: "The undersigned acknowledge that he/she may have sustained or in the future may sustain injuries, damages or claims or develop a disease which is presently unknown or unsuspected or which may be different in magnitude, type or latency from injuries, damages, claims or diseases that are presently known or suspected, and that such injuries, damages, claims or diseases may suggest additional losses or expenses in the fixture which are not now anticipated. It is the express intent of the undersigned that this release shall extinguish any and all claims against the Releasee arising out of or in any manner connected with the use of and/or exposure to any asbestos-containing product whether such claims are known or unknown, choate or inchoate, presently existing, existing in the past or which may exist in the future, whether or not such claims were made or could have been made at this time in a lawsuit. By way of example, and without limitation, the undersigned intends hereby to fully and completely release the Releasees from any past, present and future claims at law or in equity for the following: all injuries, illnesses, diseases, sicknesses, disabilities or impairments to body, mind or emotional wellbeing, whether manifest or latent, whether known or unknown, and whether presently discoverable or undiscoverable; all risks, anxieties or fears of injuries, illnesses, diseases, sicknesses, disabilities or impairments to body, mind or emotional well-being; and all medical expenses and costs or medical surveillance or monitoring."
A release is a contract and is subject to rules of construction of contracts. "It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts." Chubb v. Amax Coal Co., 125 Ill.App.3d 682, 685, 466 N.E.2d 369 (1984) (cited with approval in Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482, 650 A.2d 1240 (1994)). Determining the scope of the release is therefore a matter of contractual interpretation. Tallmadge Bros, Inc. v. Iroquois Gas Transmission System, 252 Conn. 479, 498-99, 746 A.2d 1277 (2000). "As with any question of contractual interpretation, our initial guide must be the actual words used in the contract." Id. "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and used where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Internal quotation marks omitted.) Id., 498. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Id., 495.
In the instant cases, the language of the releases was intended to extinguish all claims arising from or related to the plaintiff's exposure to asbestos. The releases specifically referred to the possibility that the releasors might develop other diseases in the future, including the specific disease of which the plaintiffs now complain. The language of this release "is clear and unambiguous [and must be] given effect according to its terms." Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 498.
Plaintiffs contend that since the release predated the date that the lung cancer, from which the plaintiffs later suffered, was discovered that the release is inapplicable to the present action. They base this argument on the so-called "two-disease" rule which provides that even if a nonmalignant condition commences a statute of limitation period, the subsequent development of a malignant condition will commence a new statute period. See Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 527-29, 562 A.2d BOO (1989); Capen v. General Dynamics Corp./Electric Boat Division, 38 Conn.App. 73, 659 A.2d 735 (1995).
The two disease rule, however, is a rule primarily related to the statute of limitations. It does, in the context of asbestos litigation, recognize that the diagnosis of a non-malignant asbestos related disease begins the running of the statute only for that disease. The later diagnosis of a malignant related condition creates a new cause of action with the commencement of the statute period being when the later diagnosis is made. This rule does not affect the question of the validity of the release at issue. The parties here, as they had the right to do, reached an agreement which included a release of the defendant General Electric of any and all claims, present and future, of and for all potential liabilities resulting or to result from exposure to an asbestos-containing material. The plaintiffs' exposure to asbestos had occurred and was complete at the time the release is as executed and it was the manifestation of the disease which postdated the releases. The language of the releases foresaw the possibility that other diseases might manifest themselves in the future and provided for and included such an event, should it occur.
The plaintiffs also claim that the release are contrary to public policy. No authority is provided for this position. Where the parties agree to release a liability which might arise in the future, and do so specifically and in clear and unambiguous language, there is no public policy against enforcement of such an agreement. See generally B and D Associates, Inc. v. Russell, 73 Conn.App. 66, 807 A.2d 1001 (2002); Delk v. Go Vertical, Inc., 303 F.Sup.2d 94 (D.Conn. 2002).
The defendant's Motions for Summary Judgment in both cases are therefore granted.
Hiller, J.