Think of an injury case like navigating a ship from one port to another. Signing up the case is the equivalent of throwing off the ropes and pulling safely away from the dock. Being at sea is analogous to litigation. Some days you will eat the bear and some days the bear will eat you. Stay your course. Invariably, chart adjustments will be necessary, but the final destination always remains the same: favorable resolution of the case. Settling the case equates to pulling into port. However, it is not the last act. The ship must be successfully docked and secured. The Settlement Release is part of this final act. It must be done properly to avoid damaging the ship.
Our law firm handles both workers’ compensation and personal injury/wrongful death cases. It is not uncommon to have both types of cases arising out of one accident. For example, we represent a gentleman who suffered numerous catastrophic injuries in a motor vehicle crash. Since the accident happened in the course and scope of his employment, he was covered under workers’ compensation. We recently settled the workers’ compensation case. The common law liability case, against the second vehicle’s owner and our client’s co-worker [brought under a theory of gross negligence to overcome workers’ compensation immunity], remains ongoing.
As part of the workers’ compensation mediated settlement, the workers’ compensation carrier agreed that the settlement did not affect the liability case against the third party or the co-worker. Nevertheless, the General Release it submitted to us contained wording that could be construed as preventing our client from proceeding against the co-worker. We have reworded it to avoid this outcome.
This scenario resembles another case presently pending in our office in which we represent a gentleman who lost a leg while operating a lawnmower. We settled his common law liability case against the owner of the lawnmower one week before the workers’ compensation case was settled against the employer. We are now in the paperwork stage of both cases. Even though both cases are settled, we must nevertheless be careful to avoid any language either side might try to use to nullify an agreement. We have not yet received the liability release from the other side. However, this week we received the workers’ compensation General Release and had to modify it to eliminate any construction that could threaten the liability settlement.
Defendants like to use broad release language — not to be confused with confidentiality and hold harmless language, which can be the topic of another blog — in their Releases which often goes beyond the reasonable understanding of the settling parties. In many instances it doesn’t matter. The resolved case is the only possible case that can or will be pursued. However, it is still wise to pair down the wording to reflect the actual settlement. When it does matter, the consequential language cannot be allowed to remain or it must be qualified to limit its scope.
Anyone wishing to discuss these issues or see the language we include in our Releases to protect the rights of our clients, feel free to phone or email.
Contact us at 305-758-4900 or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.