• January 29, 2015
Francisco Goya's etching:  "The Sleep of Reason Conjures Monsters"

Francisco Goya’s etching: “The Sleep of Reason Conjures Monsters” (Prado Museum, Madrid)

Stephen Ballard’s life changed on July 22, 2011 when Robert Chesser drunkenly cruised over the center line on Arlington Avenue in Duluth and smashed into Mr. Ballard’s car, head-on. Mr. Ballard has lived the nightmare a life-changing tragedy coming from a risk that almost all of us run every day. Driving.

One civil litigator nightmare concerns settlements that waive or release your client’s claims that you did not mean to waive or release. Or, on the flip-side, failing to obtain waiver or release of claims against your client that you had meant to extinguish.

It is one of those horrible nightmare “gotcha’s” when you ink up a settlement for your client, put the case to bed, and then go after “the real target” or “the next target” only to find that the next target successfully argues that you released your claims against it in the earlier settlement.

Personal injury lawyers, Wil Fluegel and Ronald Envall, wisely went after Mr. Chesser’s $50,000 insurance policy and after moved on to bring a claim against the city of Duluth and Professional Golf Management, Inc. because Mr. Chesser jacked his blood-alcohol content up to .22 at Duluth’s Enger Park Golf Course Clubhouse before hitting the road and hitting Mr. Ballard.

Then the plaintiff’s lawyers’ nightmare scenario. But, fortunately for plaintiff’s counsel, the Minnesota Court of Appeals whisked away the demons let loose by the trial court’s “sleep of reason…” this week.


The district court (St. Louis County Judge, John E. DeSanto) had ruled that plaintiff had accidentally released his Civil Damages Act claim against the City of Duluth and Professional Golf Management, Inc. when the plaintiff released the driver of the car that hit him. The district court seems to have reached this conclusion because of plaintiff’s failure to include a so-called Pierringer release in the settlement agreement, which is a clause that expressly preserves claims against one of multiple tortfeasors in a settlement with another tortfeasor.

When a settlement agreement does not contain a Pierringer release, the ‘release of one alleged tortfeasor will release all others if the settlement agreement manifests such an intent, or if the plaintiff received full compensation in law or in fact for damages sought against the remaining tortfeasors.’ Johnson v. Brown, 401 N.W.2d 85, 88 (Minn. App. 1987), review denied (Minn. Apr. 23,1987).

But the trial court seemed to overlook the critical “if…or if…” clauses.

Congratulations to Mr. Ballard and his lawyers on the reversal. Surviving two nightmares is more than enough.

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