Structured settlements in P.I. cases

daenerysstormborn3

I was just reading an article relating to a young boy that received a settlement in the High Court this week.

"Approving the settlement, Ms Justice Mary Irvine repeated a call she made previously for the introduction of a statutory scheme for periodic payments for victims of catastrophic injuries, rather than the current system of a single lump sum.

The current system meant "we are not protecting the welfare of the young and most vulnerable in society", she added."

The office I work in settled a case last Summer for a large amount and we were in a similar situation trying to push for a structured settlement but were unsuccessful.

What do you think is the likelihood of Ireland ever taking this step?

Tom Young

Hi, Quirke J. was far down that road before he retired.

daenerysstormborn3

Yeah but I mean a new system across the board.

Interestingly I just found this article - http://www.injury-compensation.ie/news/court-judge-unhappy-with-5-million-euro-settlement-for-brain-damaged-car-crash-victim/

This is a quote from the article - "A new system, which is due to be introduced in about 18 months time, will provide for continual payments over the period of the victim’s life."

Also found this - http://www.meathchronicle.ie/news/kells/articles/2010/05/19/3997155-newstyle-interim-settlement-of-83642m-for-kells-girl-/

"Under the terms of the settlement, she may return to the court when she reaches 18 to seek further compensation on the grounds including future loss of earnings."

Tom Young

Yes whole system.

daenerysstormborn3

I think you're picking me up wrong, I understand what you're saying about Quirke but I mean it's almost like a lottery system (as he would say himself) if you have to cross your fingers and hope for a judge who will award a structured settlement. I wonder how long it will take for his thinking to be implemented across the board and a structured settlement is normal.

Tom Young

No, that's what I meant. Structured awards and settlements.

daenerysstormborn3

Ah right, sorry, written word vs spoken word and all that.

I assume that committee that was put together are still hammering away at trying to bring this in.

The idea of minors returning to court when they turn 18 seems like a good idea to me. I wonder would the system for adults be similar (in that you return after x amount of time to seek additional compensation) or would it just be x amount for x years regardless of a change in circumstances, I think returning to the court after x amount of years to have your circumstances looked at again might be a better idea. I suppose that would rule out people getting loads of money that they don't need and people not getting the money that they do need.

seb65

pixiebean22 wrote: »

Ah right, sorry, written word vs spoken word and all that.

I assume that committee that was put together are still hammering away at trying to bring this in.

The idea of minors returning to court when they turn 18 seems like a good idea to me. I wonder would the system for adults be similar (in that you return after x amount of time to seek additional compensation) or would it just be x amount for x years regardless of a change in circumstances, I think returning to the court after x amount of years to have your circumstances looked at again might be a better idea. I suppose that would rule out people getting loads of money that they don't need and people not getting the money that they do need.

Returning to the court in litigation involving adults creates too much uncertainty. Defendants cannot live with the threat of future liability for damages over their head. Further, it would decrease the desire to settle outside of court as defendants would, I'm sure, much rather take their chances at trial than agree to uncertain, prolonged exposure to liability.

Determining quantum is a difficult task and in situations other than pure economic loss cases, based on estimates and sometimes arbitrary. Drawing out the full determination of damages over a period of years or decades runs the risk that the tortfeasor no longer exists or is no longer able to pay up.

dermot_sheehan

pixiebean22 wrote: »

I think you're picking me up wrong, I understand what you're saying about Quirke but I mean it's almost like a lottery system (as he would say himself) if you have to cross your fingers and hope for a judge who will award a structured settlement. I wonder how long it will take for his thinking to be implemented across the board and a structured settlement is normal.

There is currently no provision in Irish law for periodic payments though if the parties settle a case, there is nothing stopping them from having such a system as part of the settlement agreement, and in the case of a minor plaintiff, having that settlement approved by the court. The courts however currently cannot force a periodic payments system on parties, they can only settle a case on such terms.

If the defendant is indemnified by a large insurance company, there are benefits for both the plaintiff and defendant to such an arrangement. The plaintiff is guaranteed a stream of money for a certain number of years without the worry/expense/hastle of the plaintiff or a ward of court committee investing the lump sum on his or her behalf (in bank shares for example) and ensures that the periodic award can be reviewed for the increase of the cost of living or medical inflation.


The defendant's insurance company does not have to put up a large capital sum for the settlement, if the plaintiff's condition improves in the future it's exposure is reduced, and the insurance company isn't paying a pile of money that ends up with the plaintiff's heirs if he or she dies before expected life expectancy.

Tom Young

Was hoping you'd comment / have a update, given your publication.

Victor

Haven't courts traditionally refused supervision, e.g. reluctant to give mandatory injunctions?

What happens if the defendant goes bust (include banks and insurance companies in that) and the plaintiff is less severely out of pocket?

Agree totally with Victor that structured settlements create serious problems for limited liability companies where there were minors involved in particular.

dermot_sheehan

Victor wrote: »

Haven't courts traditionally refused supervision, e.g. reluctant to give mandatory injunctions?

What happens if the defendant goes bust (include banks and insurance companies in that) and the plaintiff is less severely out of pocket?

Mandatory injunctions to enforce settlements? Normally an action would be taken for specific performance of a settlement, I'm not award of any such proceedings having been necessary for structured settlements.

If the defendant is insured, the insurance compensation fund provided for by the insurance act 1964 (as amended) can meet the claims against insolvent insurers.

seb65

dermot_sheehan wrote: »

Mandatory injunctions to enforce settlements? Normally an action would be taken for specific performance of a settlement, I'm not award of any such proceedings having been necessary for structured settlements.

If the defendant is insured, the insurance compensation fund provided for by the insurance act 1964 (as amended) can meet the claims against insolvent insurers.

A bird in the hand is worth two in the bush.

If structured settlements were a positive for both sides, they would be instituted already.

Victor

dermot_sheehan wrote: »

Mandatory injunctions to enforce settlements?

No, that was just one example. I mean that I though the courts didn't like supervising situations. Mandatory injunctions require more supervision than prohibitory injunctions.

seb65

seb65 wrote: »

If structured settlements were a positive for both sides, they would be instituted already.

I find serious fault with your logic here. "If something was worth doing we would have done it by now" really doesn't stand up to much scrutiny.

seb65

seb65 wrote: »

If structured settlements were a positive for both sides, they would be instituted already.

I find serious fault with your logic here. "If something was worth doing we would have done it by now" really doesn't stand up to much scrutiny.

seb65

Deleted User wrote: »

I find serious fault with your logic here. "If something was worth doing we would have done it by now" really doesn't stand up to much scrutiny.

My apologies. I feel Mr. Sheehan fails to point out the flaws with structured settlements and portrays it as a win-win for both sides. Structured settlements are advantageous for the vulnerable in society and for those not used to having large amounts of money. There are many bottom-feeders waiting to take advantage of such people. However, they are not the perfect solution - nor are should they be applicable to every situation where an individual requires permanent care.

First, if a structured settlement pays an amount every year to an individual by an insurance company, the company is, in actual fact, investing the money it would have paid out in a lump sum and giving a percentage to the claimant as an annuity. The question for a claimant is - will he get the same amount over time as he would have gotten in a lump sum and invested it himself - or divided it into locked-in, higher interest savings accounts. Further, is the annuity the personal property of the claimant? If so, is he free to sell it as he wishes? What if something occurs where he requires more money than the annuity offers?

Though there seems to be some confusion with the OP, who, if I'm correct - in later posts is talking about returning to the court for additional compensation. This scenario is more akin to a reevaluation of the settlement or award than a structured settlement.

If re-evalution of claims is in discussion here - the second issue is the supervision of the settlement/award - returning to court to discuss the agreement/judgment is burdensome. The courts are already over-loaded with civil actions - let alone having to rule on a single action multiple times throughout the life of the claimant.

Lastly, of course, is the issue of companies going bust, particularly these days. It also appears from the need for the Solvency II Directive, that insurance companies in Europe have not all been following proper reserving techniques. If such structured settlements are covered by statute - does this mean that the liability to pay, if an insurance company becomes insolvent, shifts from that company to the taxpayer?

daenerysstormborn3

No confusion, just possible examples of what could be brought in (not saying it's right or wrong).

Good to see a decent debate going about this though. Interesting to see both sides of the argument. I've been fortunate/unfortunate enough to have been involved only in cases where structured settlements would've been very beneficial so that's mainly where my opinion on the matter comes from.