by John Darer CLU ChFC MSSC CeFT RSP CLTC
For three decades certain structured settlement brokers and settlement planners have raised the 30 year old Grillo legal malpractice case to drive structured settlement annuity sales, by trying to scare the crap out of plaintiff lawyers.
But why has there been such a dearth of notable, relevant legal malpractice cases related to structured settlements in 30 years?
If there have been no other notable legal malpractice cases in 30 years, then maybe this is not such a big deal, even if the premise of offering a structured settlement is sensible.
"Since Grillo, other cases have been filed against attorneys and other participants in personal injury cases where lump sums were accepted instead of structured settlements" claims one of settlement advisers.
Well if that's really the case. why keep it a secret? How about providing the details, for the sake of credibility?
A Death That Nobody in the Structured Settlement Industry Noticed, until 12 Months Later
When celebrities and famous people die, we notice. Christina Marie Grillo Sullivan was certainly someone of note to structured settlement brokers and settlement planners. She left this realm on September 17, 2014. Nobody in the structured settlement and settlement industry noticed. No announcement, bulletin or anyone posting on Facebook or Twitter or memorial video on YouTube.
Then, September 14, 2015, I happened to look up Christina Grillo on the Internet and discovered that she had died a year earlier. I immediately wrote and published this tribute Christina Marie Grillo Sullivan (1982-2014) | An Extraordinary Woman - Structured Settlements 4Real® Blog: Structured Settlements | Settlement Planning News and John Darer Reviews (typepad.com)
But not a peep from NSSTA, SSP or any structured settlement broker or settlement planners who had been using her name to drive structured settlement annuity sales. Nobody noticed.
The Court transcript from the more than three decade old late minor's prove up hearing does not appear to jive with the marketing by generations of structured settlement brokers and settlement planners
All is not what it seems folks. Giddy settlement advisers taking creative liberties concerning the case of Grillo v Pettiete, or Grillo v Henry (the guardian ad litem) is not a good look. Sometimes a story gets told incorrectly and the "urban legend" gets passed from generation to generation.
I have read a copy of the transcripts and it did not appear to go down the way a generation of settlement planners has spinned it, and continues to spin it to sell more structured settlement annuities or even special needs legal related services. Settlement advisers and anyone else interested can and should read them for themselves by clicking on the links below.
Download TRANSCRIPT1_001 Mr Juniker 1-3-1991
Download TRANSCRIPT3_001 Texas Court of Appeals decision reinstating cause of action against Guardian Ad Litem 1-14-1999 likely led to the settlement.
The "Grillo case" has been promoted as the poster child for potential attorney fee liability for failing to consider (or offer) a structured settlement to their client. [see Grillo v Pettiete Cause No. 96-145090-92 and Grillo v Henry Cause 96-167943-96, 96th District Court Tarrant County, Texas.
In that now "dog-eared" legal malpractice case there arose legal questions over whether there is ever a duty to offer a structured settlement. Plaintiff's legal malpractice attorney was quoted as saying "the defendant insurance company offered a structured settlement to the child and plaintiff alleged that the offer was never relayed to the parents and, in fact, never relayed to the court.”. Read the transcripts.
In New York, the 22 year old 2001 Appelate Division 2nd Dept. ruling in Lyons v Medical Malpractice Insurance Association is cited from time to time. The focal point of the Lyons case was on plaintiffs' counsel understanding of Present Value and the duty of privity. In the case there were "questions of fact as to whether the represented present value of the settlement package was a fraudulent, intentional, or negligent misrepresentation, and whether the plaintiffs' alleged reliance thereon was reasonable". Further, the Appelate Division ruled that "there was sufficient privity between the parties to support a claim for negligent misrepresentation and that MMIA was aware that the alleged misrepresentation was going to be used for a particular purpose, the plaintiffs were a known party who allegedly relied on the alleged misrepresentation in furtherance of that purpose,and there was conduct by MMIA linking it to the plaintiffs and evincing its understanding of such reliance".
Cite: Alexander Lyons, an Infant, by His Father and Natural Guardian, David Lyons, et al., Appellants, v. Medical Malpractice Insurance Association, Respondent, et al., Defendants.2000-09060
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 286 A.D.2d 711, 730 N.Y.S.2d 345
June 26, 2001, Argued September 17, 2001, Decided.
Introduction of Structured Settlement Affidavits
Prior to Lyons, the 1990s saw voluntary structured settlement affidavits by a number of New York structured settlement brokers and settlement planners, which were also called a Certificate of Reliability and Assurances (CORA).
In 2006, as part of sweeping legislation addressing business practices concerning the creation of structured settlements, as well as the possible factoring of structured settlement payment rights, passage of the New York Structured Settlement Protection Act in 2006 New York Code - Laws: General Obligations : (5-1701 - 5-1709) Structured Settlement Protection Act introduced a standard requirement under New York General Obligatons Law for certain mandatory disclosures.
Subsequently, a number of county Supreme Courts in the New York City Metropolitan area made structured settlement affidavits standard operating procedure wherea structured settlement was part of a settlement requiring court approval.
To put things into perspective on the "passage of time"
United States President was George H.W. Bush
United States President was William Jefferson Clinton
Catching my drift?