Article by Attorney Melinda H. South
Recently I received a call from a young man who had signed a Release to settle his personal injury claim. He wanted to know if he had any recourse. It turns out he had signed a Release only three weeks after his motor vehicle accident even though he was still in pain. He thought he would get better, so he accepted an offer of $750 cash plus $10,000 to pay for doctor visits incurred in the following 60 days only. Unfortunately, his pain worsened, and his doctor referred him to physical therapy. The young man completed therapy over the next two months, but he was still in pain. His doctor then referred him for an MRI of his shoulder which showed a full tear of the tendon that could only be repaired by surgery. Since the 60 days had passed, his claim was forever closed because he had signed the Release too soon.
Lessons learned: Do not be too eager to settle your personal injury claim. Make sure you have recovered one hundred percent before you sign the Release. Your health will affect you for the rest of your life; allow enough time to pass to be sure of your recovery before you settle. Generally, if you are over 18 years old, the Statute of Limitations in Virginia is two years from the date of injury. By that time, you must either have settled your claim or have filed suit. (Note there are some exceptions, and in some cases you must give a specific written notice as soon as six months after the injury, so it's best to consult with an attorney regarding your specific case).
Don't let the insurance company pressure you into settling. It's always worth getting some legal advice to "level the playing field" before settling your claim. All companies have goals, and don't think the insurance companies are any different. They have goals to settle as quickly as possible and for as little as possible. An insurance adjuster is a trained professionals whose job is to meet those goals; you need a trained professional on your side, too, who is looking out for your interests instead of the insurance company's interests. Some insurance companies actually offer incentives to adjusters who settle the most claims within the first 30 days after an accident.
Most of the time, after you sign the release, you are stuck. There are some ways to "break" a release, but these are difficult. For example, there are some legal requirements a release must meet, and if a release doesn't conform to these requirements, then the release may not be valid. In 1999, the Virginia legislature passed a statute stating that when a person signs a release within 30 days of the accident, the person shall have 3 days after signing to revoke the release provided: (1) the signer was not represented by an attorney; (2) the revocation is made in writing to the person or persons seeking the release, their representative or insurance carrier; and (3) any money received is returned to the person or persons seeking the release. In 2000, the legislature added that release must contain a notice that the signer has a right to revoke the release. See Virginia Code 8.01-425.1. If a release is missing that notice, then the release may not be valid.
Additional facts that may cause a release to be invalid or "voidable" are (1) if the person who signed the release can prove that the release was signed under duress; (2) the release was signed due to fraud or a misrepresentation of a material fact; or (3) there was some mutual mistake or there was no "meeting of the minds" when it was signed. Obviously these are very technical matters, and proving them almost certainly requires the assistance of an attorney.
So, BE SURE - BE VERY SURE - before you sign a release that gives up your rights. Getting the release signed may be good for the insurance company, but may be bad for you.
About the Author: Melinda South has been an attorney with Allen & Allen for over 20 years. She is known as a keen legal researcher and assists in the preparation of firm briefs and legal memoranda.