by John Darer CLU ChFC MSSC CeFT RSP CLTC
For more than three decades certain structured settlement brokers and settlement planners have exploited a 34 year old legal malpractice case to drive structured settlement annuity sales, by trying to scare the crap out of plaintiff lawyers.
Emphasizing the juxtaposition between the structured settlements and the legal narrative, this blog questions the credibility of such reliance and why has there been such a dearth of notable, relevant legal malpractice cases related to structured settlements in more than three decades?
Maybe There’s a Better Way to Promote Structured Settlements?
If there have been no other notable legal malpractice cases in decades, 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. It made me sad that there was 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. 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
After my 2015 blog raised awareness and Christina’s Mom and step dad were invoted, and made an appearance at a Society of Settlement Planners annual meeting. Several settlement firms have links to the Christina Sullivan Foundation
That being said, 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.
TRANSCRIPT1_001 John Juniker 1-3-1991
TRANSCRIPT2_001 Josephine 1-10-1991
TRANSCRIPT3_001 Texas Court of Appeals in favor of 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 2001 Appellate Division, Second Department ruling in Lyons v. Medical Malpractice Insurance Association is occasionally cited, though not as frequently as Grillo. For instance, there are no “Lyons’ Waivers.”
- The focal point of the quarter of a century old 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).
Structured Settlement Ethics | Why Structured Settlement Affidavit Matters (4structures.com)
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 where a structured settlement was part of a settlement requiring court approval.
To put things into perspective on the “passage of time”
What Happened in 1991 – On This Day
United States President was George H.W. Bush
#1 Song: (Everything I Do) I Do It For You – Bryan Adams
Aug 6 Tim Berners-Lee releases files describing his idea for the World Wide Web and debuts WWW as a publicly available service on the Internet
Historical Events in 1999 – On This Day
United States President was William Jefferson Clinton
Aug 23 San Francisco Giants slugger Barry Bonds becomes 1st MLB to hit 400 home runs and steal 400 bases in a career when he homers off Florida Marlin’s Kirt Ojala at Pro Player Stadium in Miami Gardens, Florida
Catching my drift?