Settling personal injury cases typically goes without incident. Sometimes however there may be glitches. That is, sometimes you reach a settlement and the other party then won’t comply with the terms of the settlement.
If that happens, you have a couple of options. One option is to file a Motion to Enforce the Settlement. The other option is to file a separate lawsuit to enforce the settlement.
Obviously the easier way to proceed is the first one.
Settling Personal Injury Cases-Burden of Proof
The party seeking to enforce the settlement has the burden of proving that there is an agreement and then proving what the terms of the agreement are. Baldwin v. Baldwin, 44 Va. App. 93 (2004)
The task then of the court is to determine whether or not there was a settlement.
Some issues that may arise are that the defendant may claim that there were some false statements made that induced the settlement i.e., fraud. If that is the case, then that may be a basis for voiding the settlement.
The defendant may claim that you have to file a separate lawsuit to enforce the settlement. That typically is not true. The court has the general equitable power to enforce a settlement and to bring the matter to a conclusion. Virginia favors the resolution of cases through settlement and therefore it’s in the court’s interest to determine whether or not there is a settlement and if so, to enforce it in order to bring the litigation to a close.
Settling Personal Injury Cases-A Writing
The other party may also claim that if the agreement was not reduced to writing, there in effect is no agreement. That is not so. There needn’t be a written agreement in order for the settlement to be enforceable. In some cases the parties may agree that they will memorialize their written settlement with a formal document. Unless the parties expressly agreed that was a condition to the settlement, then it is not a condition of the settlement. Agostini v. Consolvo, 154 Va. 203 (1930) As long as there was a meeting of the minds as to what the terms are, then the settlement is indeed enforceable. Bralley v. Carey, 2010 WL 4668936 (E.D. Va.)
Settling Personal Injury Cases-Va. Code § 8.01-35.1
This Code section has several elements to it. The first element is a trade-off wherein the non-settling defendants are not released, but their liability is reduced by the amount of the settlement.
The second element, which is also a trade-off, is that the non-settling defendants’ right to seek contribution against the settling defendant is wiped out. Likewise the settling the defendant no longer has a right of contribution against the non-settling defendant.
A third element is that of good faith. A release is not given in good faith where the principle purpose of the release is simply to facilitate a collusive alliance against a non-settling tortfeasor. Dacotah Marketing & Research LLC v. Versatility, Inc., 21 F. Supp. 2d 571, 579 (E.D. Va. 1998) As such, you need to be careful with certain types of supposed settlement agreements that are really just designed to put pressure on a co-defendant and perhaps to turn the judicial system into a type of gaming process.
Get Help from an Experienced Personal Injury Attorney in Tysons Corner, VA
Call or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with litigation secrecy issues.
