Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

R. PATRICK MAGRATH TYSON P. SCHROEDER

Alcorn Goering & Sage, LLP Boehl Stopher & Graves, LLP

Madison, Indiana New Albany, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ANGELA D. HARTWELL, )

)

Appellant-Plaintiff, )

)

vs. ) No. 39A01-1305-CT-195

)

INDIANA INSURANCE COMPANY, )

)

Appellee-Defendant. )

APPEAL FROM THE JEFFERSON CIRCUIT COURT

The Honorable Ted R. Todd, Senior Judge

Cause No. 39C01-1110-CT-917

December 3, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
CASE SUMMARY

In June of 2009, Appellant-Plaintiff Angela Hartwell was injured in an automobile 

accident involving William McRoberts. At the time, Harwell was insured by AppelleeDefendant Indiana Insurance Company and McRoberts was insured by Geico Insurance 

Company. Hartwell brought suit against McRoberts and Geico, and Geico eventually offered 

to settle with Hartwell for McRoberts’s policy limit, which was $25,000.00. Hartwell 

notified Indiana Insurance of Geico’s offer and expressed an intent to pursue a claim 

pursuant to the uninsured motorist coverage she had with Indiana Insurance. Eventually, 

Hartwell executed a release (“the Release”) with Geico in exchange for the policy limits. 

In October of 2011, Hartwell sued Indiana Insurance, seeking coverage pursuant to 

her underinsured motorist coverage. Indiana Insurance responded and moved for summary 

judgment, arguing that the Release had released Indiana Insurance as well. After a hearing, 

the trial court entered summary judgment in favor of Indiana Insurance on the question of 

coverage. Hartwell argues that (1) the Release is ambiguous and that the intent of the parties 

to it is a question of fact, thereby precluding the entry of summary judgment; (2) the 

“stranger to the contract” rule allows the examination of parol evidence, which indicates that 

Hartwell did not intend to release Indiana Insurance; and (3) the “joint tortfeasor” rule has no 

applicability in the case and is no longer good law in any event. Concluding that the Release 

is ambiguous regarding the Hartwells’ and Geico’s intent to release Indiana Insurance, we 

reverse and remand for trial on that question. 

FACTS AND PROCEDURAL HISTORY

On June 2, 2009, Hartwell, who had automobile insurance with Indiana Insurance, 
3

was involved in an accident with McRoberts, who was insured by Geico. On May 21, 2010, 

Hartwell contacted Indiana Insurance through her attorney, notifying Indiana Insurance that 

Geico had tendered her a settlement offer of McRoberts’s $25,000.00 policy limit and 

requesting Indiana Insurance’s “permission to accept the $25,000.00 while pursuing an 

underinsured claim with your company.” Appellant’s App. p. 51. On May 28, 2010, Indiana 

Insurance claim specialist Nancy Rupe responded, requesting “a copy of that offer and 

include a copy of their Declarations Page as well.” Appellant’s App. p. 52. Rupe also 

requested “a copy of your demand package so that we may consider your claim under the 

Underinsured Motorist Bodily Injury portion of this policy.” Appellant’s App. p. 52. 

Hartwell forwarded the requested materials to Indiana Insurance, and, on August 18, 2010, 

Rupe replied, “We agree to waive our subrogation and allow you to accept the Geico 

[l]imits.” Appellant’s App. p. 57. 

On October 1, 2010, Hartwell, in exchange to $25,000.00, executed the Release in 

favor of Geico, which read in operational part as follows:

I/we, Angela and John Hartwell, Releasor(s) of 8577 North Breeding Road, 

City of Dupont, State of Indiana, being over the age of majority, for and in 

consideration of a check for the sum of Twenty Five Thousand dollars 

($25,000.00), lawful money of the United States of America to me/us in hand 

paid, the receipt of which is hereby acknowledged, do for myself/ourselves, 

my/our heirs, executors, administrators, successors and assigns, hereby remise, 

release, and forever discharge William McRoberts and Geico Indemnity 

Company, Releasee(s), successors and assigns, and/or his, her or their 

associates, heirs, executors and administrators, and all other persons, firms or 

corporations of and from any and every claim, demand, right or cause of 

action, of whatever kind or nature, on account of or in any way growing out of 

any and all personal injuries and consequences thereof, including, but not 

limited to, all causes of action preserved by the wrongful death statute 

applicable, any loss of services and consortium, any injuries which may exist 
4

but which at this time are unknown and unanticipated and which may develop 

at some time in the future, all unforeseen developments arising from known 

injuries, and any and all property damage resulting or to result from an 

accident that occurred on or about the 2nd day of June, 2009, at or near Wilson 

Avenue, and especially all liability arising out of said accident including, but 

not limited to, all liability for contribution and/or indemnity. 

AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID 

SETTLEMENT AND PAYMENT, IT IS EXPRESSLY WARRANTED AND 

AGREED:

(1) That I/we understand fully that this is a final settlement and disposition 

of the disputes both as to the legal liability for said accident, casualty, or event 

and as to the nature of the injury, illness, disease and/or damage which I/we 

have sustained and I/we understand that liability is denied by William 

McRoberts and Geico Indemnity Company Releasee(s), and it is covenanted 

and agrees between the Releasor(s) and Releasee(s) herein that this release and 

settlement is not to be construed as an admission of liability on the part of the 

Releasor(s) of his agents and servants, and any claim of whatever kind or 

nature the Releasee(s) against said Releasor(s) of his agents and servants, and 

any claim of whatever kind or nature the Releasee(s) might have or hereafter 

having arising from said accident is expressly reserved to them. 

(2) That I/we do hereby for myself/ourselves, my/our heirs, executors, 

administrators, successors, assigns and next of kin covenant to indemnify and 

save harmless the Releasee(s) from any and every claim or demand of every 

kind or character arising from said accident which may ever be asserted.

(3) That no promise, agreement, statement or representation not herein 

expressed has been made to or relied upon by me/us and this release contains 

the entire agreement between the parties. 

Appellant’s App. p. 59. 

On October 3, 2011, Hartwell filed suit against Indiana Insurance, seeking coverage 

pursuant to her underinsured motorist coverage. On February 17, 2012, Indiana Insurance 

moved for summary judgment, to which Hartwell replied on March 20. On April 11, 2013, 

the trial court granted summary judgment in Indiana Insurance’s favor. 

DISCUSSION AND DECISION
5

When reviewing the grant or denial of a summary judgment motion, we apply the 

same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 

741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is appropriate only where the 

evidence shows there is no genuine issue of material fact and the moving party is entitled to a 

judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences 

drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a 

motion for summary judgment, a party must demonstrate that the undisputed material facts 

negate at least one element of the other party’s claim. Id. Once the moving party has met 

this burden with a prima facie showing, the burden shifts to the nonmoving party to establish 

that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears 

the burden of persuading us that the trial court erred. Id. 

Whether the Release Covers Indiana Insurance

Hartwell argues that the Release is ambiguous, precluding summary judgment in 

Indiana Insurance’s favor and necessitating trial on the question of who the parties intended 

to release. Indiana Insurance argues that the Release, although executed in favor of 

McRoberts and Geico, unambiguously released Indiana Insurance as well from all possible 

liability arising out of Hartwell’s accident. 

A release executed in exchange for proper consideration works to release only 

those parties to the agreement unless it is clear from the document that others 

are to be released as well. A release, as with any contract, should be 

interpreted according to the standard rules of contract law. Therefore, from 

this point forward, release documents shall be interpreted in the same manner 

as any other contract document, with the intention of the parties regarding the 

purpose of the document governing.
6

Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). 

“The first rule in the interpretation of contracts is to give meaning and effect to the 

intention of the parties as expressed in the language of the contract.” Stech v. Panel Mart, 

Inc., 434 N.E.2d 97, 100 (Ind. Ct. App. 1982). “In ascertaining the intention of the parties, a 

court must construe the instrument as a whole, giving effect to every portion, if possible.” Id. 

“In interpreting an unambiguous contract, a court gives effect to the parties’ intentions as 

expressed in the four corners of the instrument, and clear, plain, and unambiguous terms are 

conclusive of that intent.” Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 1142 (citing

Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr. of Ft. Wayne, Inc., 683 N.E.2d 

243, 247 (Ind. Ct. App. 1997)). “Courts may not construe clear and unambiguous provisions, 

nor may it add provisions not agreed upon by the parties.” Id. (citing Hyperbaric Oxygen 

Therapy Sys., 683 N.E.2d at 247-48). However, it is well-settled that “[i]f the terms of a 

written contract are ambiguous, it is the responsibility of the trier-of-fact to ascertain the facts 

necessary to construe the contract.” Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d 

396, 401 (Ind. Ct. App. 2007). “A contract is ambiguous only if reasonable persons would 

differ as to the meaning of its terms.” Oxford Fin. Group, 795 N.E.2d at 1142 (citing Beam 

v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002)). 

We conclude that, read as a whole, the Release is ambiguous. Indiana Insurance is 

correct that it purports to release “all other persons, firms or corporations” from liability 

related to Hartwell’s accident. Appellant’s App. p. 59. This phrase, however, is contradicted 

by other provisions of the Release. First, only McRoberts and Geico are identified as 
7

“Releasee(s)[.]” Appellant’s App. p. 59. While it is possible that this term was meant to be 

non-exhaustive, it is just as reasonable to read it as exhaustive. Moreover, in paragraph (1),

only McRoberts and Geico are mentioned as denying liability, not “all persons.” Finally, in 

paragraph (2), the Hartwells agree “to indemnify and save harmless the Releasee(s) from any 

and every claim or demand of every kind or character arising from said accident which may 

ever be asserted[,]” not “all persons.” Appellant’s App. p. 59 (emphasis added). In 

summary, it is just as reasonable to conclude that the Release covers Indiana Insurance as it is 

to conclude that it does not. Consequently, we must conclude that the trial court erred in 

granting summary judgment in favor of Indiana Insurance and remand for trial on the 

question, with the fact-finder being able to consider parole evidence regarding Hartwell’s and 

Geico’s intent. See Huffman, 588 N.E.2d at 1268 (“The agreement in this case did not clearly

identify who was intended to be released by its provisions. Consequently, this case must be 

remanded to the trial court for a determination as to whether the parties to the release 

intended it to release MCCSC.”). 

The judgment of the trial court is reversed, and the cause is remanded for further 

proceedings.1 

BAILEY, J., and MAY, J., concur.

 

1

 Because we have concluded that the Release was inherently ambiguous, we need not address 

Hartwell’s other arguments.