Morgan’s Tip of the Week (FL) – Settling Claims Directly
Greetings,
Last week, the 1st DCA affirmed a JCC decision without a written opinion regarding a Motion to Enforce settlement in Harden v. Kolb Enterprises, Inc. (OJCC# 14-014998, 1D15-0735).
In a nutshell, it appears the represented claimant’s attorney settled the claim directly with the adjuster. When the E/C’s attorney sent the settlement documents to complete, there were some terms included that the adjuster did not discuss at the time of the settlement. Some of the terms in the documents that were not confirmed in the settlement discussions were that benefits ended when the claimant signed the settlement documents (not when the JCC signed the order), the E/C had 30 days to cut the check, and that the claimant would indemnify and hold harmless the E/C against any liens, unauthorized bills, etc…
In this case, the JCC enforced the settlement but excluded the terms that were not agreed to at the time of the settlement.
So, if you settle a case directly with the claimant or the claimant’s attorney, all material terms need to be spelled out at the time the deal is done or you can’t enforce them later. This is particularly sticky when it comes to terms involving a General Release and Resignation which many adjusters are not permitted to discuss. At a minimum, make sure you address with the claimant or the attorney in writing:
- That it is an overall settlement of the entire claim, and settlement of any and all other dates of accident with the ER;
- When and how benefits end;
- The E/C will prepare the settlement documents;
- Any prior atty fee liens or past fees owed to other attorneys;
- Subrogation liens maintained or waived;
- Any Medicare or MSA issues;
- If there is an advance, that it comes out of the ultimate settlement;
- Holding harmless for any unpaid unauthorized medical;
- If permitted, General release and effective date of resignation, and whether there is separate consideration;
- And as a catch all, mention the attorney you refer it to will discuss any additional terms of the settlement with OC.
You could even get the defense attorney you are going to refer it to involved at that point to finalize all of the terms before you give the final yes/acceptance. Below is the JCC’s order for your review.