OPINION ISSUED NOVEMBER 19, 1985
EUGENE R. EDWARDS, JR. AND MARTHA E. EDWARDS
DEPARTMENT OF HIGHWAYS
H. Truman Chafin, Attorney at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
The claimant Eugene R. Edwards, Jr. was involved in an automobile
accident on Route 44 pear Sara Ann, Logan County, Went Virginia on
January 22, 1980. A vehicle, driven by Ada B. Blackburn, was
travelling north on Route 44. She encountered a break in the
pavement and, in order to avoid going off an embankment, drove over
into the southbound lane. As the claimant rounded a curve, he saw
Mrs. Blackburn's vehicle in his lane, forcing his off the road. He
suffered multiple injuries. The claimant's allege that the
respondent was negligent in failing to maintain Route 44. Claimant
Eugene R. Edwards, Jr. seeks an award of $652,000.00 for medical
expenses, lost wagon, pain and suffering. His wife Martha E.
Edwards seeks an award of $25,000.00.
At the pre-trial hearing held on May 27, 1981, it was disclosed
that the claimants had brought suit against Ada B. Blackburn and
Jerry Lee Blackburn which was settled and a release had been
executed by the claimants. The Court requested that the release be
filed with the Court, which was not done. The case was heard on
June 24, 1982, after which the Court again requested that it be
furnished the release. The release was furnished subsequent to the
hearing and on September 17, 1982, respondent filed a Motion to
Dismiss on the grounds that the claimants executed a release of all
claims for a valuable consideration of $50,000.00. The release
stated in part, that the claimants forever released Jerry Lee
Blackburn and Ada B. Blackburn and any other person, partnership,
firm or corporation charged or chargeable with responsibility or
liability, ...from any and all claims, demands, damages, costs,
expenses, loss of services, actions and causes of actions arising
from any act or occurrence, up to the present time, and
particularly on account of all personal injury, disability,
property damage, lose of services and loss or damages of any kind
sustained or that we or either of us hereafter may sustain in
consequence of an accident that occurred on or about the 22 day of
January 1980, at or near Junction of Rt. 44 and U.S. 52 Sara Ann,
The respondent alleged that the release failed to exempt the State of West Virginia, and therefore, by its terms, released the
The claimant's filed a Motion Contra to Respondent's Motion to
Dismiss on September 28, 1982.
The Court held a hearing on the Motion to Dismiss on January 17,
1983, after which a briefing schedule was established in which
respondent was given thirty days to file its brief, then the
claimants had twenty days to file their reply brief, after which
respondent had an additional ten days to reply to claimants.
Respondent's brief in support of its motion was filed on February
23, 1983. Claimant's opposition memorandum was filed with the Court
on February 5, 1985, followed by respondent's reply brief on March
The claimants contend, among other things, that respondent's
Motion to Dismiss was not timely filed and further that the release
executed by the claimants did not release the respondent.
After consideration of the record and the briefs and memorandum
filed on behalf of both parties, the Court is of the opinion that
claimant's contention that respondent's Motion to Dismiss was not
timely filed, is without merit and that the release executed by the
claimants did not exempt the respondent. The broadly worded release
not only released the Blackburns, but extended to any other person,
partnership, firm or corporation.' Drema Gail Hopson, et al. v.
Dept. of Natural Resources, 10 Ct.Cl. 8 (1973). See also Doganieri
v. United States, 520 F. Supp. 1093, (N.D.W.Va. 1981).
Accordingly, the Court finds that the release releases the
respondent and sustains the Motion to Dismiss.