United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-2180

Bryce Hepper, *
* Appellant, *

* Appeal from the Unite d States v. * District Court for the
* District of North Dakota. Adams County, ND, *
* Appellee. *

Submitted: November 21, 1997
Filed : January 14, 1998

Before LOKEN, HEANEY, and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

Bryce Hepper appeals the district court’s grant o f summary judgment in favor of Adams County, North Dakot a (“th e County”), on Hepper’s claim of negligence relate d to a n automobile accident in which Hepper was injured

. We affirm.

I.

The facts of the case are undisputed. On July 25 , 1993, H epper was a passenger in an automobile driven b y2

Mera Merz. After Merz lost control of the vehicle, i t leftThe road had an “s-curve,” which was marked by a road sign indicating the first 1 curve but not the second, which curved back in the opposite direction. There was no painted center line, nor did the road have a “fog line” or a “barrier stripe.”
3 th e road and rolled over, injuring Hepper. Hepper’ s injuries r equired substantial medical treatment and will requir e ongoing medical care in the future. Le o Ehrmantraut, the claims adjuster for Merz’s automobil e insurance company, American Family Mutual Insuranc e (“American Family”), represented Merz and Ame rican Family in n egotiating a settlement with Hepper, which include d a general release. The release provided that Hepper:
[H]erebyfully and forever release[s] an d discharge[s] Harvey Merz and Mera Merz[,] their heirs, administrators, executo rs, successors and assigns, and all other persons and organizations who are or might be liable . . . . By executing this release, we intend and agree that thi s release applies to all of our claims . .

. arising from said accident, present and future, inclu ding, but not limited to, damage to o r de struction of property; claims for known o r unknown injuries, developments , consequences and perma nency of those injuries; and there is n o misunderstanding in this regard. Appellee’s Brief at 5.

Aft er reaching the settlement with American Family , He pper sued the County, claiming that the County wa s negl igent in the signing and striping of the road o n whic h the accident occurred. The County moved fo r 1 summary judgment on Hepper’s claim of negligence , asse rting that the general release signed by Heppe r relea sed all parties who might be liable and that th e4

Cou ntyenjoys discretionary immunity. Supported b y Ehrmantraut’s testimony, Hepper responded that th e releas e was not intended to act in accordance with it s spec ific language. Hepper further asserted that th e Coun ty did not enjoy immunity because its action s constituted negligent execution rather than d iscretionary judgment.Hepper’s motion cited Rule 60(b)(6) of the Federal Rules of Civil Procedure, 2 which provides that “the court may relieve a party . . . from a final judgment [or] order” for any reason “justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b)(6).

5 The district court granted the County’s motion fo r summary ju dgment because the language of the release was
unam biguous, parole evidence of intent was therefor e inadmissible, and consequently, the agreement’s clea r language released “all other persons who are or might be liab le.” Following the court’s grant of summar y judgment, Hepper moved for relief from the ju dgment under Rule 60(b), requesting reconsideration of the judgmen t 2 and permis sion to amend his complaint to add a claim for contract reformation. The district court den ied Hepper’s motion. Hepper appeals the district court’s grant o f summary ju dgment and its denial of his motion for relief from the judgment.

II.

We rev iew a grant of summary judgment de novo , affirming the grant only if the record shows no issue of materia l fact and the prevailing party is entitled to a judgm ent as a matter of law. Treleven v. University o f Minn esota , 73 F.3d 816, 817 (8th Cir. 1996) (citation s omitted). Under North Dakota law, whether a contract is ambig uous is a question of law to be decided by th e court. Pa mida, Inc. v. Meide , 526 N.W.2d 487, 490 (N.D. 1995). Where a contract is clear and unambiguous, th e6

co urt is not permitted to examine parole evidence t o contradict the terms of the agreement. Id. at 490.Section 32-38-04 provides in pertinent part: 3
32-38- 04. Release or covenant not to sue. When a release or a cov enant not to sue or not to enforce judgment is given in good faith t o one of two or more persons liable in tort for the same injury or the same wrongful death:
1. It does not discha

rge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide . . . . N.D. Cent. Code § 32-38-04 (1997).
7 Under North Dakota law, the release of one’s right t o sue where multiple tortfeasors might be involved i s governed by N.D. Cent. Code § 32-38-04. North Dakota’s 3 Supre me Court has not yet interpreted § 32-38-04 t o determine whether the terms of a general release such as the one si gned by Hepper “so provide” for the release of all potential tortfeasors. Where the question remain s open , North Dakota law allows a court to “see k int erpretive guidance from other states that [have ] adopted uniform laws” in interpreting the releas e statut e. Estate of Zimbleman , 539 N.W.2d 67, 72 (N.D

. 1995) (citations omitted).

Our court has addressed the question of whethe r potentiall y-liable parties may rely on a general release of liability where they were neither named no r a party to the agreem ent. In Douglas v. United States Tobacco Co. , 670 F .2d 791, 794-95 (8th Cir. 1982), for example, w e dete rmined that a general release executed in Arkansa s rele ased third parties from liability. We recentl y affirmed that interpretation in a similar case in Sout h Dakot a. Enos v. Key Pharm., Inc. , 106 F.3d 838, 839-4 08

(8th Cir. 1997) (a party executing a broad genera l rele ase in a malpractice action released third partie s from liability in the matter).

Hep per cites a number of cases favorable to hi s argu ment in which states have answered the questio n whether a party is required to be specifically named b y the9

releas e to enjoy its effects. See Noonan v. Williams , 686 A.2d 2 37, 244-46 (D.C. 1996); Russ v. General Motors Corp. , 906 P.2d 718, 723 (Nev. 1995); Moss v. Oklahom a City , 897 P.2d 280, 288-89 (Okla. 1995). Alt hough Hepper make s strong equitable arguments for adopting such a rule , under North Dakota’s statutory language we ar e bound by our previous determinations that the language of
a gen eral release, such as that executed by Hepper , rele ases third parties, such as the County, fro m liabi lity. See Brown v. First Nat’l Bank in Lenox , 84 4 F.2d 580, 582 (8th Cir. 1988) (one panel of the Circui t may not reverse a decision of another panel).

We review a grant or denial of relief under Rul e 60(b ) of the Federal Rules of Civil Procedure for a n abuse o f discretion. Sheng v. Starkey Labs., Inc. , 11 7 F.3d 1081, 1083 (8th Cir. 1997) (citation omi tted). Rule 60(b) provides for extraordinary relief whichwe properly gran t only where the movant has shown exceptiona l circumstances. Mitchell v. Shalala , 48 F.3d 1039, 104 1 (8th Cir. 1995) (citation omitted). Although Hepper’ s argu ment that the agreement with American Family shoul d have been reformed might have merit, Hepper h as failed to demonstrat e that exceptional circumstances prevented him from seeking reformation of the contract prior t o br inging his claim against the County. We therefor e conclude that the district court did not abuse it s discretion by denying Hepper’s motion.

III.

For the foregoing reasons, the district court’s gran t of summary judgment is affirmed.10

BRIGHT, Circuit Judge, dissenting.

I dissent.For

example, the agreement among the three injured parties to divide th e 4 accident vehicle's insurance proceeds clearly shows that the parties had not received anything cl ose to full compensation for their injuries. The vehicle in the accident had minimal insurance coverage, providing $25,000 of c overage per person with a $50,000 maximum

l imit per occurrence. At the time of the agreement, the three individuals , Hepper, Rhett Peterson, and David Knutson had inc urred medical costs of $16,083.78, $41,2 46.07, and $15,552.26, respectively. The $50,000 was prorated among th e claimants based on t

heir respective medical expenses. Since Peterson's medical costs
were over 50% of the total costs incurred by all three parties, Peterson received th e maximu m under the policy of $25,000 per person. Hepper's costs in relationship t o Knutson's costs represented 50.84% of the re maining $25,000 in coverage. Therefore, Hepper received only $12,710.
11 It is clear from all of the documents filed in this 4
case th at Bryce Hepper did not intend a general releas e of liab ility. When Hepper settled his case against th e insurance company that provided coverage for the vehicle in t he accident, he unwittingly executed a genera l release of liability. Hepper's counsel may n ot have been
aware of this problem. Adams County seeks and has bee n given the benefit of the general release form. It ha s received an unintended benefit without payment o f consideration.

This c ase is an extraordinary one that may call fo r equitable relief. I, therefore, would remand this cas e to the district court to permit Hepper to amend hi s complai nt in order to seek reformation of the releas e agreement to show the true intent of the parties.12

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.