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Breaking a Seaman’s Settlement or Release

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A settlement assures the diver that the sums agreed upon are paid and assures the diving company that the settling party will not fle suit in the future.

Before receiving the settlement check it will probably be necessary for the claimant to attend a settlement conference in the offces of the dive company or its attorney. At the settlement conference the insurance company representative will read over and explain the legal documents and the legal effects of entering into the agreements. The discussions may take place in the presence of a court reporter who records the proceeding.

The insurance company representative will tell the injured diver that by signing the documents he or she will:

FOREVER DISCHARGE ANY PAST OR fuTuRE RIGHTS TO SuE THE DIVE COMPANY OR ITS INSuRANCE COMPANY IN CONNECTION WITH THE ACCIDENT.

Only after reading and signing the papers will the insurance company representatives give the diver the settlement check. For an injured diver this may be a traumatic event for the legal effect of signing the document is to forever waive future legal rights. It will be at that point that a diver fully appreciates the inequality of the negotiations.

The law has acknowledged the unfair bargaining position of the diver. Under certain circumstances a settlement or release may be broken. Under the law, a settlement and release may be overturned:

Where the settlement was obtained through coercion or improper prompting by the company;

Where the physician was mistaken in his diagnosis (though not prognosis) of the injuries sustained;

When a diver did not fully understand his or her rights in entering into the agreement; or Where there is an inadequacy in consideration; that is where the amount paid was improper in light of the circumstances.

To break a release the diver must institute legal proceedings. During the lawsuit the company has the burden of proving that the settlement was done in a fair and equitable manner. In short, in order for a settlement to be binding, it must be shown that there was no advantage taken of the diver.

In any case, the settlement of a claim is a very serious matter. It is inadvisable to settle one’s claim if the injury is career-ending without consulting with competent legal counsel.