HOW A VERBAL RELEASE WITH AN INSURANCE COMPANY CAN BE BINDING – DON’T SAY IT, DON’T SIGN IT!

 

  • If you have been in an Accident, Do not verbally Discuss your injury claim with the Other Driver’s Insurance Company
  • Do not give a recorded statement to the other driver’s insurance company
  • If you have any pain, see a medical provider right away.  
  • Do not sign any documents given to you by an insurance company with a lawyers review.
  • Always remember the other driver’s insurance company works for them, not you

 

Laura Hunt AttorneyWhen people are involved in an auto accident, the adverse insurance company will often call them like a vulture lying in wait within a day — sometimes even hours of the accident and try to record your words or coerce you into a settlement. As an attorney working in the field for many years, I have seen and heard clients advise me of statements insurance adjusters have made that both shock my conscience and violate countless laws. However, that does not stop them from providing you with information that is incorrect in an attempt to discourage you from getting attorney to advise you of your rights.

That was exactly what happened in the case of window of Windell Gilbert vs. Cherish Fitz from the Court of Appeals in the Fifth District of Texas at Dallas, Case 05-16-00218-CV.  https://law.justia.com/cases/texas/fifth-court-of-appeals/2016/05-16-00218-cv.html.  In that case, a personal injury victim had attempted to deal directly with the insurance adjuster himself. He had given a recorded telephone statement and in the statement he agreed to accept $500 plus reasonable medical expenses from the day of the crash. Hopefully when you are reading this you are shocked knowing that any reasonable person who is injured has bills days, months, and  sometimes years after the accident. However this adjuster manipulated Mr. Gilbert to take only his medical bills from the date of the accident itself and $500. The adjuster documented the oral agreement in the telephone statement.

The insurance company immediately then sent a letter to the victim Mr. Gilbert with a check for $500 which contained release language on the check itself. The victim in that case, Mr. Gilbert, never even cashed the check because he subsequently hired an attorney who advised him not to cash the check. The attorney filed a lawsuit on behalf of Mr. Gilbert and the insurance company counter claimed for breach of the settlement agreement they had reached on the phone.   Sadly, in the end, the insurance company won and the victim was ordered to pay $10,000 in attorney’s fees to the insurance company. Although it is shocking and morally reprehensible, this is the type of conduct that the insurance companies get away with. That is why if you are involved in an auto accident it is in your best interest to contact an attorney to protect your rights immediately.

If you are in an auto accident, you are entitle for your reasonable medical bills for all care regardless of the time that it takes that is related to the accident.  You are entitled to necessary medical car until you have recovered from your injuries. You are entitled to your time off work, you are entitled to receive money for your disability and for your pain and suffering.   As is evident from the Gilbert case and the Fifth circuit Court of Appeals ruling affirming the insurance company’s verbal settlement, you will have the weight and power of a giant insurance company against you and sometimes even the courts. To protect you and your family you need the weight of an experienced attorney behind you to prevent being taken advantage of by ruthless insurance companies such as the carrier in this case who took advantage of Mr. Gilbert.

Nevada provides some protection in these cases, but the same result as Mr. Gilbert can occur in Nevada under the right conditions.  Under NRS 111.220, an agreement involving promises to take on the responsibility for debts of another are void if they are not in writing, among other types of contracts.   However, it is necessary to understand that if these types of agreements are not in writing, they could possibly be enforceable if there is written evidence of consideration meaning usually money paid. As in the case of Mr. Gilbert.

The case of  May vs. Anderson,  (119 P.3d 1254 (2005)),  https://law.justia.com/cases/nevada/supreme-court/2005/42204-1.html , involved a claim in which an auto accident occurred and all parties obtained counsel. It should be noted that, sadly, this automobile accident resulted in one fatality and several very serious injuries. The parties believe they had reached a settlement agreement and counsel for one of the injured victims sent a letter outlining the terms of the proposed settlement between the victims.  Some of the injured parties signed the settlement agreement and the estate for the deceased victim did not sign the settlement agreement. The District Court found that there was a binding settlement based upon the oral conversations of the parties even though no release was signed. The Nevada Supreme Court stated that:

[1] Basic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration.[2] With respect to contract formation, preliminary negotiations do not constitute a binding contract unless the parties have agreed to all material terms.[3] A valid contract cannot exist when material terms are lacking or are insufficiently certain and definite.[4] A contract can be formed, however, when the parties have agreed to the material terms, even though the contract’s exact language is not finalized until later.[5] In the case of a settlement agreement, a court cannot compel compliance when material terms remain uncertain.[6] The court must be able to ascertain what is required of the respective parties.[7]Contract interpretation is subject to a de novo standard of review.[8] However, the question of whether a contract exists is one of fact, requiring this court to defer to the district court’s findings unless they are clearly erroneous or not based on substantial evidence.[9]There is little doubt that release terms are generally thought to be material to any settlement agreement.[10]

The Court ultimately held, and agreeing with other jurisdictions, that;

An enforceable settlement agreement cannot exist when the parties have not agreed to the essential terms of the release because these provisions constitute material terms of the settlement contract. Releases terms are not mere formality. They are an important reason why a party enters into a settlement agreement. If the prevention of future litigation is one of the primary goals of settlement, the essential terms of the release needed to achieve that goal or material to the settlement agreement.“

Although this language seems favorable to accident victims, the court in May held that an enforceable settlement agreement existed despite the fact that he release had not been signed by the parties. The state of the deceased victim did not want to execute a release for fear that additional charge or liable parties could be found. This was the reason they could not come to terms on the final agreement. However, the court found that they had agreed upon enough of the terms that a  binding enforceable settlement did exist even without signature and therefore, the court enforced the settlement agreement against the estate. The law in this area is very confusing and it is very fact specific. For that reason, the best advice that I can be given is to not speak to the insurance company that is against you at any time following the accident. Contact attorney immediately to protect your rights and prevent the insurance company from manipulating you into a settlement agreement.

The result in this case was not favorable to the injured party.  In general, the answer to whether a settlement must be in writing is no.  For that reason, if you have been in an accident, do not verbally discuss your injury claim with the other driver’s insurance company. Always remember the other driver’s insurance company works for them, not you, and they only want to pay as little as possible.

If you have been in an accident and have question please don’t hesitate to contact our offices today.  At my office, we are experienced in reviewing injury and property damage claims and coverages. Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible. Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.   

At the Law Offices of Laura Hunt we are here to help you and your family in the event that accidents and tragedies occur. For any of your legal needs, do not hesitate to contact our offices.  The Law Offices of Laura Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.