Central New York Injury Lawyer Blog
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. 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 suffer an insignificant neck injury. Instead of hiring a lawyer, you settled your case on your own with the insurance carrier for the at-fault driver 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. You re-read the release you signed. It clearly says you release the at-fault driver and his insurance carrier from liability for ALL injuries KNOWN AND UNKNOWN that stem from the car accident.
Can you undo the release?
The answer is a resounding . . . . maybe. The legal grounds for undoing the release under these circumstances is called “mutual mistake”. Even if the release says you are releasing the defendant from liability for “all injuries” both “known and unknown”, if both parties assumed that that the neck injury was the only injury, and they meant to strike a deal only regarding that injury, then there was a “mutual mistake” as to what the total injuries in fact were, and the release can be undone (“rescinded” in legal terms).
In deciding whether the release was intended to cover only the known injury, that is, the neck injury, and was not intended to cover even unknown injuries, like your back injury, a jury will be allowed to consider all of the facts and circumstances existing at the time the release was signed, including the amount of the settlement, 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.
All these factors are set forth in the New York Pattern Jury Instruction 4:11. It’s not a sure bet, but it might be worth a try. But, hey, you would never have gotten yourself into this mess if you had just hired me, or another good New York accident lawyer, before you settled. Don’t make the same mistake twice. Get a good lawyer NOW.