by John Darer® CLU ChFC MSSC RSP CLTC
When a structured settlement is part of the resolution of a New York personal injury case the New York General Obligations Law § 5-1702,creates a legal obligation on the defendant, or the defendant's legal representative to disclose a number of things in writing. To wit:
§ 5-1702. Initial disclosure of structured settlement terms.
In negotiating a structured settlement of claims brought by or on behalf of a claimant who is domiciled in this state, the defendant or defendant's legal representative shall disclose in writing to the claimant or the claimant's legal representative all of the following information that is not otherwise specified in the structured settlement agreement:
(a) the amounts and due dates of the periodic payments to be made
under the structured settlement agreement. In the case of payments that
will be subject to periodic percentage increases, the amounts of future
payments may be disclosed by identifying the base payment amount, the
amount and timing of scheduled increases, and the manner in which
increases will be compounded;
(b) the amount of the premium payable to the annuity issuer;
(c) the nature and amount of any cost that may be deducted from any of
the periodic payments;
(d) where applicable, that any transfer of the periodic payments is
prohibited by the terms of the structured settlement and may otherwise
be prohibited or restricted under applicable law; and
(e) a statement that the claimant is advised to obtain independent
professional advice relating to the legal, tax and financial
implications of the settlement, including any adverse consequences and
that the defendant or defendant's legal representative may not refer any
advisor, attorney or firm for such purpose.
In the opinion of this author it is a best practice to include such disclosures in the settlement agreement where the signatures to the agreement acknowledge receipt of the information.
This author has observed that one too many claims adjusters and defense counsel are apparently not familiar with this obligation even though the law has been in effect for years. Thus they could needlessly be leaving their company or clients exposed. Even if the plaintiff engages their own settlement planner, it does not absolve the defendant, or its legal representative, of the legal obligation to make the written disclosure in the settlement agreement or otherwise.
This author encourages defendants and their counsel to add this to their checklist of things to do in closing out a case file. Executives at insurance companies with New York exposure should be establishing protocols with their legal representatives and structured settlement consultants to assure that this legal obligation is not overlooked.
It is in the public interest that ALL plaintiffs receive adequate disclosure of the savings or investment products that they purchase or, in the case of structured settlements, may benefit from.