by John Darer CLU ChFC MSSC RSP CLTC
Hancock v Share
A Florida appellate court has reversed a decision by Circuit Court of Volusia County where the trial judge did not approve a structured settlement "annuity for the benefit of a minor child" to be paid over 27 years. The circuit court decision was among the decisions that inspired this May 2011 post and video.
Judges and Structured Settlement Payouts After age 18: A Disturbing Trend? May 20, 2011
The circuit court rejected the structured settlement annuity portion of the proposed settlement agreement, concluding that the court lacked the legal authority to approve said agreement because the terms of the agreement would remain in effect even after the date Marisa Hancock turned eighteen years old. The trial court cited Florida Statute 744.441(19)[1]; Guardianship of Bernstein v. Miller, 777 So. 2d 1125 (Fla. 4th DCA 2001). However the Bernstein case involved trusts instead of a structured annuity.
Parallels New York Kings County Surrogate Matter of Mede 177 Misc.2d 974 (Kings Co. Surrogate’s Ct., 1998)
Attorneys practicing in New York state may be familiar with a similarly stifling case, Matter of Mede, 177 Misc.2d 974 (Kings Co. Surrogate’s Ct., 1998) { also In Matter of Mede, N.Y.L.J., July 24, 1998, at 25 col. 3 (Kings)], where an infant’s father disclosed to the court that the defendant was paying the damages outright and proposed that those proceeds be placed in a “plaintiff-controlled structured settlement trust,” a vehicle with relaxed standards for the fiduciary vis-a-vis investments, standard of care and accountability, to be eventually paid to the infant when he reached the age of thirty-five. The court correctly refused his request.
"When a guardian holds property for an infant, he must pay that money or deliver that property to the infant when he reaches the age of majority, which is eighteen. When a child receives money in settlement of a tort action, the court can approve a structured settlement under which he will receive periodic payments that go beyond his eighteenth birthday. A structured settlement is ordinarily part of the negotiations, and the defendant typically finances these payments by buying an annuity from an insurance company, whose soundness and rating the court evaluates in determining whether to approve the settlement".
-From Supplementary Practice Commentaries of Margaret Valentine Turano p. 7, 2004 Cumulative Pocket Part to 58A McKinney’s Cons. L. of N.Y.
In the above Florida decision styled Traci Hancock, As Mother and Natural, Etc. Appellant v Fred B. Share. Guardian Ad Litem, et al. Appellee Case No. 5D10-2069, the 5th District Appellate Court recognized that "there were no trust documents at issue and, thus, the limitation set forth in section Florida Statute 744.441(19) was not at issue. Instead, the parties in this case submitted a proposed annuity contract which, pursuant to section 744.441(21) of the Florida Statutes, a trial court is authorized to approve, provided that the contract is "appropriate for, and in the best interest of, the ward."
Opinion Filed July 8, 2011 Download Hancock Appellate Decision 5D10-2069.op,
Lower court judge, C. McFerrin Smith, III "took it all in stride" and was "said" to be humming a few inspirational bars from his namesake.
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