by John Darer CLU ChFC CSSC RSP CLTC
Erie County New York State Supreme Court Judge Timothy J. Walker has dismissed claims against Medical Liability Mutual Insurance Company ("MLMIC"), Ringler Associates, Inc., Black Holcomb, Smith & Associates, Inc., Kipnes Crowley Group, LLC, JMW Settlements Inc. (incorrectly listed in the order as MJW Settlements Inc.) and The Pension Company, with prejudice*, in a lawsuit commenced by Paul Isaac and Paramount Settlement Planning Inc. in May 2013 ( Erie County Index 2013-883) over alleged business practices alleged to be harmful to Plaintiffs.
- Concluded that there was not a cognizable antitrust claim.
- Concluded that claims for violation of the New York Structured Settlement Protection Act "can only be enforced by the New York attorney general in the name of the people of the state of New York"
Judge Walker's decision handed down on April 23, 2014 can be viewed here:
*When a case is dismissed with prejudice the plaintiff is barred from bringing an action for the same claim. This does not prevent the plaintiffs from appealing the decision and Plaintiffs'attorney J. Michael Hayes said he would be filing an appeal with the New York Appellate Division 4th Department, according to the New York Law Journal (to avoid creating bad law).
MLMIC is the largest writer of medical malpractice insurance in New York state.
I have been a structured settlement expert for over 24 years in all aspects of the business, including, but not limited to, until 2002, a medical malpractice insurance company that was acquired by MLMIC.
I have respect for and good working relationships with all of the firms listed.
I could not be more resolute in my personal opinion that MLMIC, or any Defendant or Insurer, is entitled to make an offer in any manner of its choosing, including a component that includes future periodic payments. The plaintiff can demand what he or she wants, can accept or reject the defendant or insurer's offer and/or make a counter demandin whatever form, including a counter demand that includes future periodic payments.. It's a negotiation after all. When they do offer future periodic payments as part of their offer, why wouldn't defendants and/or insurers use an intermediary of their choosing to represent their interests in the transaction.
That being said, with my lenses I have observed and experienced the structured settlement industry evolution, and insurance carrier evolution, to match the needs of an ever dynamic and more complex financial market place that often clearly warrants advisors for both sides of a case. The New York State Structured Settlement Protection Act is evidence that the New York state legislature intended this. It takes special skills and depth of understanding to speak with some plaintiffs who are experiencing transition stress. According to the Sudden Money®Institute, when suffering "transition stress, people may not have the perspective to make sound financial and life decisions", which CAN affect the ability to settle or to wrap up a settlement of New York medical malpractice cases (we've all seen it!). "When the right perspective is established, then and only then, can decisions be made with confidence and a commitiment to positive action". Such perspective must be re-established before products are sold, including structured settlements. Foundational work can, be done in advance of a mediation. Yet is unlikely that a plaintiff lawyer will give access to a defense retained expert to do this critical work at that time.
The majority of carriers I have encountered have come to understand the value that a settlement intermediary with transition expertise, retained by themselves or a plaintiff or plaintiff's lawyer, brings to the table, that those intermediaries are experts and that neither side's experts supplant the other side's rights to expert representation.
Splitting of fees in a "real estate model" works well and has long been accepted industry wide. In the New York City real estate market a listing broker for a property doesn't take 100% of the compensation when it could be the buyer's broker's work product that has brought in a buyer on a $2million property?
When one considers that ALL other plaintiff retained experts, such as economists, medical experts and the like, who do absolutely nothing for the defendant or defendant' s insurer except quantify, and perhaps occasionally "pad" the defendant's adversary's version of the numbers, are effectively "paid by the defendant's or defendant's insurer" out of the settlement" why is it even an issue for structured settlement brokers split fees with the minority any more,when the minority isn't even writing the check for the commmissions?