More often than would think, insurance companies seek to add terms to a Full and Final Release which they would not otherwise be able to get in Court.
A Full and Final Release is a legal document which gets signed when a case gets settled outside of Court.
This is standard. Anyone who settles their case outside of Court in a personal injury or long term disability action will be asked by a Defendant to sign such a Release.
Generally, the Release will contain provisions detailing the amount of the settlement, terms that the settlement is final and binding on both parties, that the Defendant is prepared to pay the settlement amount, but does not admit liability, that the Plaintiff cannot sue again over this specific cause of action and that should s/he do so, that the Release will be relied upon to dismiss the case with costs; and that the terms of the settlement are confidential, but can be disclosed to lawyers, accountants and financial planners.
These terms are expected to be contained in a Release by plaintiff side personal injury lawyers. But sometimes (more often than you would expect) sophisticated insurers and their insureds try to get terms into the Release which fall well outside of the scope of the litigation. The Defendant is trying to get through the backdoor, what they cannot get through the front door.
Recently, Brian Goldfinger had to deal with one of these situations in the scope of a long term disability case.
The fact this was a long term disability case cannot be understated. A long term disability case is not built upon negligence. It’s built on a long term disability claimant between the Plaintiff employee, and the Defendant insurer. There are no other parties to the long term disability contract, and this is important.
The Plaintiff named a single Defendant in the Statement of Claim. Yet, on the Release, the lone Defendant sought to have all 8 companies released. These 8 companies are all separate legal entities, and separate corporations.
Human Rights Kicker on The Release
The case was for Long Term Disability Benefits. Yet the Defendant sought to have the Plaintiff release all past, present and future Human Rights complaints dismissed against 8 companies. Here is what it had to say:
AND THE RELEASOR hereby specifically covenants, represents and warrants to the Releasees that I do not now have a Human Rights Complaint against the Releasees, and without limiting the generality of the foregoing, the Releasor hereby releases the Releasees from any past, present and future Human Rights complaints and acknowledges that the execution of this Release shall preclude the consideration of any complaint to the Ontario Human Rights Commission pursuant to the Ontario Human Rights Code, or any other applicable Human Rights legislation.
This would mean that if the Plaintiff’s Human Rights (discrimination, racism, abuse) were ever violated by ANY of the 8 Releasors, that the Plaintiff would not be able to maintain or bring a future Human Rights complaint. This is a classic example of a group of Defendants trying to get through the back door, what they cannot get through the front. No Judge could ever make such an Order at the trial of a long term disability action in Superior Court.
PIPEDA Kicker
The Defendants also sought a blanket Release for any past, present or future claims pursuant to the Personal Information Protection and Electronic Documents Act; an act which has absolutely nothing to do with the Long Term Disability case which was being litigated.
AND FOR THE SAID CONSIDERATION, the Releasor convenants and agrees not to many any or to commence or take any proceedings against the Releasees under the provisions of the Personal Information Protection and Electronic Documents Act or any substantially similar provincial legislation.
Trade Secrets and Confidential Information Kicker
AND FOR THE SAID CONSIDERATION, the Releasor further acknowledges that, the Releasees have expended considerable time and money acquiring and developing trade secrets, products, technology, sales literature and brochures, form contracts, other form documents, customer lists, marketing or sales strategies, and other information (collectively referred to hereafter as “Confidential Information“)…The Releasor agrees to appropriately protect Confidential Information given its highly confidential nature and acknowledges that in the event of a breach of this term, the Releasees are entitled to legal or equitable remedies for any and all damages suffered as a result therefrom. The Releasor further acknowledges and agrees that the prohibition against disclosure of Confidential Information contained herein is in addition to, and not in lieu of, any rights or remedies which the Releasees may have available pursuant to the laws of ANY jurisdiction or at common law to prevent the disclosure of trade secrets and other industrial or intellectual property rights or interests now or hereafter recognized at law.
The Plaintiff in this case worked a front line job in a grocery/retail setting. S/he did not use any sales brochures, never had to engage in any written material like contracts, technology or sales literature. This trade secret clause has absolutely nothing to do with the entitlement and payment of long term disability benefits which are the subject of the civil law suit. This was not an intellectual property, patent or trademark lawsuit. I should also point out that the Release makes reference to industrial or intellectual property rights, which is quite an amazing overreach for a civil long term disability lawsuit. It is yet another example of a classic over reach for relief which a Judge would not be able to order in this lawsuit.
What do you do when this sort of things happen?
Don’t sign. Get a lawyer to look things over. Your personal injury lawyer needs to know what they’re doing and have these terms eliminated from the Release. There might be a lot of huffing and puffing between the lawyer for the Plaintiff, and the lawyer for the Defendant in terms of what needs to go, and what needs to stay. Sometimes, terms are immaterial to the Release which have no impact other than for peace of mind for one of the parties. You and your personal injury lawyer need to make a calculated decision of what options are right for you. It might be best to just walk away, and have your day in Court. That way, the Judge won’t be able to compel a Plaintiff to sign a Release with such onerous provisions.