POWERS v. SUPERIOR COURT

PUGLIA, P.J.

For the second time, we are called upon to undertake interlocutory review of the trial court's ruling on cross-motions for summary adjudication of issues in the underlying action for personal injuries and loss of consortium. The issue presented by the earlier petition as well as the instant one concerns the enforceability and effect of two documents signed by real party in interest, Dixie Hoffman, when she rented an ultralight aircraft from petitioner (defendant). Those writings included the basic rental terms as well as provisions purporting to release and indemnify defendant from any liability for injuries to person or property arising out of Dixie Hoffman's use of the ultralight aircraft for recreational flying. We attach the two agreements to this opinion as Appendices A and B.

The agreements were signed on May 10, 1984, immediately before Dixie Hoffman's first solo flight in an ultralight. After takeoff, the aircraft's engine failed and it crashed, striking a stack of baled hay. Dixie Hoffman's husband, real party in interest and coplaintiff Gerald Hoffman, observed the accident. Dixie Hoffman and her husband (plaintiffs) sued defendant Powers and several other individuals and entities for personal injuries, emotional distress, and loss of consortium.

Both sides sought summary adjudication of the question whether the release and indemnity provisions were valid and effective. Plaintiffs requested a finding that only the exculpatory language contained in the less inclusive of the two release agreements (Appen. B), which did not specifically absolve defendant of liability for negligence, was enforceable. Defendant asked for an adjudication that the release and indemnity provisions protected him from liability on all causes of action. In its first ruling the superior court denied both motions on the ground that there was a triable issue of fact as to whether the language in question was sufficiently clear and unambiguous to be enforceable. (See Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318 [ 195 Cal.Rptr. 90] .) At the mutual request of the parties we issued a writ of mandate directing the superior court to rule on the motions, on the ground that whether the writings were ambiguous is a question of law. (C000883 and C000885.) On reconsideration, the lower court held that the existence of two separate agreements created an ambiguity which abrogated their effectiveness. Accordingly, it granted plaintiffs' motion for summary adjudication and denied defendant's. (1a) Defendant contends that the trial court has again erred. We agree.

The contractual provisions in dispute are, as noted, found in a pair of agreements signed by plaintiff Dixie Hoffman immediately prior to takeoff. The first bears the heading "Waiver and Release From Liability and Indemnity Agreement." (Appen. A.) The other is entitled "Aircraft Rental and Student Instruction Agreement and Release from Liability." (Appen. B.) Both are in a standard size type, easily legible, with no fine print.

(2) Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are ". . . clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement." ( Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at p. 318; and see Hulsey v. Elsinor Parachute Center (1985) 168 Cal.App.3d 333, 340-341 [ 214 Cal.Rptr. 194].)

(1b) Plaintiffs do not contend that either of the agreements considered individually fails to meet these criteria. Rather, relying on Conservatorship of Link (1984) 158 Cal.App.3d 138 [ 205 Cal.Rptr. 513], they assert that the use of two writings, containing different (but not conflicting) language, creates an inherent ambiguity which requires that the more inclusive and specific agreement (Appen. A) be disregarded. Defendant, of course, takes the position that both contracts are effective and binding and protect him from liability.

In Conservatorship of Link, supra, the court considered the enforceability of exculpatory wording contained in two documents signed as a condition of entry into the "pit" area of a car racing event. The first release was printed at the top of a sign-in sheet which the releasor signed upon entry to the track. The other was a "pit pass" which was signed and retained by Link containing more general language which did not specifically absolve the issuer of liability for negligence. The provision appended to the sign-in sheet was in five-and-one-half-point type ". . . so small that one could conclude defendants never intended it to be read." ( Id., at p. 141.) Furthermore, the exculpatory language was so situated that it would not be easily noticed, and was "contained in the third paragraph in a convoluted 193-word sentence." ( Id., at p. 143.) These features, in the opinion of the Link court, rendered the sign-in sheet release insufficiently clear, explicit and free from ambiguity to be enforceable. The court therefore concluded that only the pit pass, which did not specifically limit liability based on negligence, constituted the parties' understanding. In so holding, the court stated "[d]efendants' use of two release agreements framed in different language created an ambiguous, confusing situation which must be resolved against defendants." ( Ibid.)

In the instant case, plaintiffs contend that the last quoted excerpt from Conservatorship of Link compels a similar result in any situation where there are two discrete contracts containing different terms. We think plaintiffs' interpretation of the Link decision is unduly broad. The conclusion reached there was clearly premised on the determination that the more specific and all encompassing terms in the sign-in sheet were too obscure, uncertain and diminutive in type size to be relied upon. Unlike plaintiffs, we do not find in Link any implication that clearly written, easily legible and specifically phrased release and indemnity terms will be denied effect merely because they appear in multiple documents containing somewhat different exculpatory clauses.

Neither the "Waiver and Release From Liability and Indemnity Agreement" (Appen. A) nor the "Aircraft Rental and Student Instruction Agreement and Release From Liability" (Appen. B) signed by plaintiff suffers from any of the defects relied upon by the Link court to void the exculpatory language found on the sign-in sheet considered in that case. Accordingly, we shall direct the superior court to set aside its order granting plaintiffs' motion for summary adjudication.

However, we shall not grant all the relief prayed for in defendant's petition. In addition to asking for vacation of the trial court's order granting plaintiffs' motion, defendant also asks us to direct that his motion be granted in its entirety. Defendant's motion sought not only an adjudication that both release and indemnity agreements are sufficiently clear and unambiguous to constitute an effective defense to plaintiff Dixie Hoffman's claims, but also to require that she indemnify defendant for any damages awarded Gerald Hoffman in his emotional distress and loss of consortium action. From the record we have been furnished, it appears that the trial court, in granting plaintiffs' motion, found it unnecessary to rule on this latter issue, nor was the court required to decide whether the "Waiver and Release From Liability and Indemnity Agreement" (Appen. A) constituted a valid contract in light of language in the document reciting that the purpose of the flight was to determine if the releasor wished to buy the aircraft, whereas it was stipulated plaintiff had no such purpose. The effect, if any, of these contractual provisions and the question of fraud in the inducement we leave for the trial court to resolve in the first instance.

Let a peremptory writ of mandate issue directing respondent court to vacate its order granting plaintiffs' motion for summary adjudication and to enter a new order denying that motion. The writ shall further direct respondent court to vacate its order denying defendant's motion for summary adjudication, and redetermine that motion in accordance with the views expressed herein.

Evans, J., and Sims, J., concurred.

A petition for a rehearing was denied December 18, 1987, and the opinion was modified to read as printed above. The petition of real parties in interest for review by the Supreme Court was denied February 4, 1988.