You should never settle a New York personal injury case until you have let enough time go by so that you are fully aware of all your injuries, and the full extent of them. It is not uncommon for New York personal injury lawyers to wait a year or more before even making a settlement demand; they want to see where the injury "ends up" before they settle. That's because once you settle you generally can't go back for more money, so you have to be absolutely sure you know the full extent of your injuries before settling.
But let's say you were not so prudent. Let's say you got into a car accident and suffered a neck injury. Instead of hiring a lawyer, you settled your case on your own with the insurance adjuster for a small amount of money. As part of the settlement, you signed a "release" that said you were releasing the at-fault driver, and his insurance carrier, from any and all liability for all injuries "known and unknown" that were caused by the car accident.
After you sign, and after you get the settlement money, you start noticing pain in your lower back. The back pain gets worse and worse, and your doctor tells you it was probably caused by the car accident. The doctor is recommending surgery on your back.
You want to undo the settlement, because now you feel the small amount of settlement money is not nearly enough to compensate you for a severely injured back.
Can you undo the release ("rescind" it in legal terminology)?
The answer is a resounding . . . . maybe. The legal grounds for undoing it is called "mutual mistake". To undo the agreement, you will need to prove that both you and the insurance adjuster assumed the neck was all that was injured, and that you both meant to strike a deal only regarding that injury, no matter that the release speaks of both "known and unknown" injuries.
In deciding whether the release was intended to cover only the known injury, that is, the neck injury, and not unknown injuries, like your back, a jury will be allowed to consider all of the facts and circumstances of the settlement, including the amount, the relationship of that amount to the your injuries, the language of the release, how long after the incident the release was signed, whether you were examined by your own doctor before you signed, whether you had been examined by a doctor on behalf of the insurance company, what the insurance adjuster said to you about your injuries and about the release, and several other factors, which are all set forth in New York Pattern Jury Instruction 4:11.
Undoing a release is hard. It is far from a sure bet. But it may be worth a try.
Think about this, though: You would never have gotten yourself into this mess if you had just hired me before you settled. Don't make the same mistake twice. Get a good lawyer to help you undo the settlement.
Keep safe!
Mike Bersani
Email me at: bersani@michaels-smolak.com I'd love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.
1-315-253-3293 Toll Free 1-866-698-8169
