Proposals for Settlements and Attaching Releases

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles. A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount. Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel. It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

09 August

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Employee’s Premise Liability Claim Barred by Disclaimer / Release in Employment Agreement

Posted by David Adelstein

in Trial Perspectives

Many times, an employee is required to sign a contract or agreement by the employer as a condition of employment. If the employee does sign, they are employed. If the employee does not sign, there is no employment. The catch-22 when it comes to employment agreements. If you have questions about what you are signing, do yourself a favor and consult with counsel. This way, you at least have an understanding as to what rights you may be foregoing. There are times these employment agreements are later challenged in court by the employee when the employee leaves the company and argues...

08 June

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Exculpatory Clauses MUST be Clear and Unequivocal

Posted by David Adelstein

in Trial Perspectives

I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign. Such documents are intended to have legal effect. By way of example, in Fresnedo v. Porky’s Gym III, Inc., 44 Fla. L. Weekly D1029a (Fla. 3d DCA 2019), the plaintiff sued his gym in negligence claiming he was injured by another person in the gym after this other person attacked him. The gym relied on a...

27 May

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A General Release is Not Absolute

Posted by David Adelstein

in Trial Perspectives

General releases, unfortunately, are not absolute. A recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling. In this case, the Court held that the term “unknown” in a general release is not synonymous with the term “unaccrued;” thus, a release of an unknown claim does not mean a release of an unaccrued claim. In theory, this makes sense since a future claim should not be barred. It is one thing if the facts giving rise...