A structured settlement is a negotiated financial or insurance arrangement through which a claimant agrees to resolve a personal injury tort claim by receiving part or all of a settlement in the form of periodic payments on an agreed schedule, rather than as a lump sum. As part of the negotiations, a structured settlement may be offered by the defendant or requested by the plaintiff. Ultimately both parties must agree on the terms of settlement. A settlement may allow the parties to a lawsuit to reduce legal and other costs by avoiding trial. Structured settlements have become part of the statutory tort law of several common law countries including Australia, Canada, England and the United States.
Structured settlements were first utilized in Canada as part of the settlement of claims made on behalf of children affected by Thalidomide. Structured settlements are now often used in product liability and pharmaceutical injury cases (such as litigation involving birth defects from Thalidomide).
Structured settlements may include income tax and spendthrift provisions. Often the periodic payments will be funded through the purchase of one or more annuities, that generate the future payments. Structured settlement payments are sometimes called periodical payments, and when incorporated into a trial judgment may be called a "structured judgment".
In the United States
Structured settlements became more popular in the United States during the 1970s as an alternative to lump sum settlements. The increased popularity was due to several rulings by the U.S. Internal Revenue Service (IRS), an increase in personal injury awards, and higher interest rates. The IRS rulings stated that if certain requirements were met, claimants would owe no Federal income tax on the amounts received. Higher interest rates result in lower present values, hence lower cost of funding of future periodic payments.
In the United States, structured settlement laws and regulations have been enacted at both the federal and state levels. Federal structured settlement laws include various provisions of the Internal Revenue Code. State structured settlement laws include structured settlement protection statutes and periodic payment of judgment statutes. Forty-seven of the states have structured settlement protection acts created using a model promulgated by the National Conference of Insurance Legislators ("NCOIL"). Of the 47 states, 37 are based in whole or in part on the NCOIL model act. Medicaid and Medicare laws and regulations affect structured settlements. A structured settlement may be used in conjunction with settlement planning tools that help preserve a claimant's Medicare benefits. A Structured Medicare Set Aside Arrangement (MSA) will generally cost less than a non-structured MSA because of amortization of the future cash flow over the claimant's life expectancy, as opposed to funding all the payments otherwise due in the future in a single, non-discounted sum today.
Structured settlements have been endorsed by many of the nation's largest disability rights organizations, including the American Association of People with Disabilities. and for a time there was a Congressional Structured Settlement Caucus.
The typical structured settlement arises and is structured as follows: An injured party (the claimant) comes to a negotiated settlement of a tort suit with the defendant (or its insurance carrier) pursuant to a settlement agreement that provides as consideration, in exchange for the claimant's securing the dismissal of the lawsuit, an agreement by the defendant (or, more commonly, its insurer) to make a series of periodic payments.
If any of the periodic payments are life-contingent (i.e. the obligation to make a payment is contingent on someone continuing to be alive), then the claimant (or whoever is determined to be the measuring life) is named as the annuitant or measuring life under the annuity. In some instances the purchasing company may purchase a life insurance policy as a hedge in case of death in a settlement transfer.
The defendant, or the property/casualty insurance company, generally assigns its periodic payment obligation to a third party by way of a qualified assignment ("assigned case"). An assignment is said to be "qualified" if it satisfies the criteria set forth in Internal Revenue Code Section 130. Qualification of the assignment is important to assignment companies because without it the amount they receive to induce them to accept periodic payment obligations would be considered income for federal income tax purposes. If an assignment qualifies under Section 130, however, the amount received is excluded from the income of the assignment company. This provision of the tax code was enacted to encourage assigned cases; without it, assignment companies would owe federal income taxes but would typically have no source from which to make the payments.
The qualified assignment company receives money from the defendant or property/casualty insurer, and in turn purchases a "qualified funding asset" to finance the assigned periodic payment obligation. Pursuant to IRC 130(d) a "qualified funding asset" may be an annuity or an obligation of the United States government.
In an assigned case, the defendant or property/casualty company does not wish to retain the long-term periodic payment obligation on its books. Accordingly, the defendant or property/casualty insurer transfers the obligation, through a legal device called a qualified assignment, to a third party. The third party, called an assignment company, will require the defendant or property/casualty company to pay it an amount sufficient to enable it to buy an annuity that will fund its newly accepted periodic payment obligation. If the claimant consents to the transfer of the periodic payment obligation (either in the settlement agreement or, failing that, in a special form of qualified assignment known as a qualified assignment and release), the defendant and/or its property/casualty company has no further liability to make the periodic payments. This method of substituting the obligor is desirable for defendants or property/casualty companies that do not want to retain the periodic payment obligation on their books. A qualified assignment is also advantageous for the claimant as it will not have to rely on the continued credit of the defendant or property/casualty company as a general creditor. Typically, an assignment company is an affiliate of the life insurance company from which the annuity is purchased.
In the less common unassigned case, the defendant or property/casualty insurer retains the periodic payment obligation and funds it by purchasing an annuity from a life insurance company, thereby offsetting its obligation with a matching asset. The payment stream purchased under the annuity matches exactly, in timing and amounts, the periodic payments agreed to in the settlement agreement. The defendant or property/casualty company owns the annuity and names the claimant as the payee under the annuity, thereby directing the annuity issuer to send payments directly to the claimant. One of the reasons an unassigned case is less popular is that the obligation is not truly off the books, and the defendant or casualty insurer retains a contingent liability. While a default is a rare occurrence, contingent liability did come into play with the liquidation of Executive Life Insurance Company of New York. Some annuitants suffered shortfalls, and a number of obligors at the wrong end of unassigned cases made up the difference.
In 1982, Congress adopted special tax rules to encourage the use of structured settlements to provide long-term financial security to seriously injured victims and their families. These structured settlement rules, as codified in the enactment of the Periodic Payment Settlement Act of 1982, which established Section 130 of the Internal Revenue Code of 1986 (IRC) and in amendments to section 104(a)(2) of the Code, have been in place working effectively since then. In the Taxpayer Relief Act of 1997, Congress extended the structured settlements to worker's compensation to cover physical injuries suffered in the workplace. A "structured settlement" under the tax code's terms is an "arrangement" that meets the following requirements.
Damages on the account of personal physical injury, physical sickness and workers compensation are income tax free due to exclusions provided in IRC section 104. The structured settlement tax rules enacted by Congress lay down a bright line path for a structured settlement. Once the plaintiff and defense have settled the tort claim in exchange for periodic payments to be made by the defendant (or the defendant's insurer), the full amount of the periodic payments constitutes tax-free damages to the victim. The defendant, or its insurer, may assign its periodic payment obligation to a qualified assignment company (typically a single purpose affiliate of a life insurer) that funds its assumed obligation with an annuity purchased from its affiliated life insurer. The rules also permit the assignee to fund its periodic payment obligation under the structured settlement via U.S. Treasury obligations. However, this U.S. Treasury obligation approach is used much less frequently because of lower returns and the relative inflexibility of payment schedules available under Treasury obligations. In this way, with a qualified assignment, there is a legal novation, the defendant or insurer can close its books on the liability, and the claimant can receive the long-term financial security of an annuity (or annuities) issued by one or more financially strong life insurance companies.
What makes this work is the tax exclusion to the qualified assignment company afforded by IRC section 130. Without the tax exclusion, the cost of assignment would be higher, because the assignment company would need to recognize the premium as income. The resulting net after tax amount would be insufficient to fund the assumed obligation.
To qualify for special tax treatment, a structured settlement must meet the following requirements:
- A structured settlement must be established by:
- A suit or agreement for periodic payment of damages excludable from gross income under Internal Revenue Code Section 104(a)(2) (26 U.S.C. § 104(a)(2)); or
- An agreement for the periodic payment of compensation under any workers’ compensation law excludable under Internal Revenue Code Section 104(a)(1) (26 U.S.C. § 104(a)(1)); and
- The periodic payments must be of the character described in subparagraphs (A) and (B) of Internal Revenue Code Section 130(c)(2) (26 U.S.C. § 130(c)(2))) and must be payable by a person who:
- Is a party to the suit or agreement or to a workers' compensation claim; or
- By a person who has assumed the liability for such periodic payments under a qualified assignment in accordance with Internal Revenue Code Section 130 (26 U.S.C. § 130).
Sales of rights to structured settlement payments
Main article: Structured settlement factoring transaction
A claimant who has agreed to a negotiated structured settlement elects to receive part of their settlement money at the time of settlement, and part of their settlement money in the future through a negotiated, customized schedule of periodic payments that are "fixed and determinable as to amount and time of payment." The life insurance companies who underwrite these periodic payment obligations and the associated qualified assignment companies, must comply with the Internal Revenue Code 130, which, in part, does not allow for acceleration or modification of payments. Options exist for structured settlement annuitants to sell or transfer the rights to future periodic payments to purchasers of structured settlement payment rights, mostly known as structured settlement factoring companies. Some life insurers, such as Berkshire Hathaway Life Insurance Company of Nebraska, and former structured annuity issuers Allstate Life Insurance Company and Symetra, offer to buy part or all of one's structured settlement payment rights in return for a lump sum cash provided such transaction complies with IRC §5891.
Although many beneficiaries of a structured settlement find that the settlement suites their needs, some may experience changed financial circumstances and find themselves unable to obtain funds through conventional financing or other sources. They may want to obtain funds from the structured settlement in order to pay down debt, help pay for a house, help pay for a child's college tuition, or for other significant financial needs. At the same time, companies that buy structured settlements have been known to take advantage of beneficiaries' circumstances in order to obtain the settlements for a relatively small price.
The act of the sale and purchase of structured settlement payment rights is known as a structured settlement factoring transaction. For example, a structured settlement payment stream of 20 years could be transferred in exchange for one discounted payment now.
Any sale of structured settlement payment rights will require the approval of a judge to comply with the local state structured settlement protection act and IRC 5891. Enforcement of structured settlement Approval is not a given. In 2012, a Tennessee Chancery Court issued an order denying a payee's transfer of workers' compensation settlement payments under a structured settlement agreement. Judge William E. Lantrip held that (i) workers' compensation payments are not within the definition of "structured settlement " under the Tennessee Structured Settlement Protection Act, Tenn. Code. Ann. §47-18-2601 
Enforcement of the state system of structured settlement protection acts has come under heavy scrutiny after a highly publicized story of alleged abuse of a cluster of annuitants who received structured settlements as part of lead paint settlements in Baltimore City appeared in the Washington Post on August 25, 2015. leading to rapidly passed reform of the Maryland Structured Settlement Protection Act and lawsuits brought against the Chevy Chase MD company that originated the deals and a number of its executives by the Maryland Attorney General, The Consumer Financial Protection Bureau and a plaintiff's class action.
On September 14, 2017 a class action law suit filed in the Eastern District of Pennsylvania, alleging Portsmouth Virginia Circuit Court judges were complicit in an "Annuity Fraud Enterprise" scheme, in which a Virginia lawyer and 79th District delegate Steve Heretick was the central figure, representing JG Wentworth, Seneca One, 321 Henderson Receivables and other settlement purchasers, that allegedly violated the rights of thousands of structured settlement annuitants. Plaintiffs allege violations of RICO statutes against multiple defendants, violations of right to due process an seek a constructive trust. against all defendants and all nominal defendants which include several life insurers who issue the annuities.
- Structured Settlements, (Prof.) John P. Weir, Carswell Publishing (now, Thomson Reuters), 1984 – 293 pages. ISBN 0-459-35780-8, KE 1237.W44 1984
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- Structured Settlements and Periodic Payment Judgments, Daniel W. Hindert, Joseph Julnes Dehner, Patrick J. Hindert. Published by Law Journal Press, 1986. ISBN 1-58852-037-4
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- ^Bendian, Marc (September 2005). Structured Settlement Payments and Periodic Judgements. Law Journal Press.
- ^ abc"26 U.S. Code § 5891 - Structured settlement factoring transactions". Legal Information Institute. Cornell Law School. Retrieved 5 September 2017.
- ^"Structured Settlements & People with Disabilities". National Structured Settlement Trade Association. 26 March 2016. Retrieved 5 September 2017.
- ^"Congress' Obligation on Structured-Settlement Fraud - Commentary". Roll Call. The Economist Group. 29 August 2014.
- ^Larson, Aaron (14 December 2016). "What is a Structured Settlement". ExpertLaw. Retrieved 5 September 2017.
- ^Wagner, Wayne (July 1999). "Negotiating a Structured Settlement". GPSolo. 15 (3). Retrieved 5 September 2017.
- ^"26 U.S. Code § 130 - Certain personal injury liability assignments". Legal Information Institute. Retrieved 20 May 2015.
- ^Nowotny, Gerald R. (January 2013). "Tax Law: Contingency Fees and Structured Settlement Annuities". GPSolo. 30 (1). Retrieved 5 September 2017.
- ^"Executive Life Insurance Company of New York - Policyholder Information". NOLHGA. The National Organization of Life & Health Insurance Guaranty Associations.
- ^"JCX-58-82". The Joint Committee on Taxation. 22 December 1982. Retrieved 20 May 2015.
- ^Public L. No. 97-473, 96 Stat. 2605 (Jan. 14, 1983).
- ^"26 U.S. Code § 104 - Compensation for injuries or sickness". Legal Information Institute. Cornell Law School. Retrieved 5 September 2017.
- ^ abc"26 U.S. Code § 130 - Certain personal injury liability assignments". Legal Information Institute. Cornell Law School. Retrieved 5 September 2017.
- ^"Maryland attorney general urges structured settlement reforms". The Baltmore Sun. Associated Press. 25 February 2016. Retrieved 5 September 2017.
- ^"Tennessee Court Denies Transfer of Workers' Compensation Payments". The National Law Review. Drinker Biddle & Reath LLP. 2012-07-05. Retrieved 2012-07-12.
- ^McCoy, Terrence (25 August 2015). "How companies make millions off lead-poisoned, poor blacks". Washington Post. Retrieved 13 June 2017.
- ^"Maryland Senate Bill 734"(PDF). General Assembly of Maryland. Retrieved 13 June 2017.
- ^Wells, Carrie (24 July 2017). "Attorney General's office and attorneys spar over settlement for lead paint victims". The Baltimore Sun. Retrieved 5 September 2017.
- ^"CFPB Sues Access Funding for Scamming Lead-Paint Poisoning Victims Out of Settlement Money". CFPB. Consumer Financial Protection Bureau. 21 November 2016. Retrieved 5 September 2017.
- ^Larry G. Dockery, On behalf of himself and all others similarly situated, Plaintiffs v Stephen E. Heretick, 321 Henderson Receivables, LLC, JG Wentworth Receivables, LLC, Seneca One Finance, Inc., Structured Settlement Investments, LP, Structured Settlement Purchaser John Doe Inc. Purchaser Defendants 1-100 and John Doe Individual Defendants 1-100 and New York Life Insurance Company, Metropolitan Life Insurance Company, Symetra et al*. United States District Court Eastern District of Pennsylvania Case 2:2017:cv-04114-MMB
A Structured Settlement Agreement Sample
Several of my clients have asked me to show them a Structured Settlement Agreement sample. I thought it was a good idea for them to familiarize themselves with what they may be confronted with. Keeping in mind that these agreements will vary, it is still an eye-opener to actually peruse one and see what details are covered, and in what way.
It goes without saying that you will need a qualified structured settlement attorney to draft one of these agreements, so don’t get any ideas about acting as your own attorney, for if you do, you will have a fool for a client. Ever hear of that old saying? Well it really is true, you will only be harming yourself.
Settlement Agreement and Release
This Settlement Agreement and Release (the "Settlement Agreement") is made and entered into this _____ day of ____________________, 2012, by and between:
A.. Plaintiff filed a Claim against "Insured" in the Court of_________, County of ___________________ , State of_____________________, Civil Action File No.:___________________, (the "Claim"), which Claim arose out of certain alleged negligent acts or omissions by Insured. In the Claim, Plaintiff sought to recover monetary damages as a result of that certain occurrence on or about________________, at____________________, which resulted in physical/personal injuries to__________________.
B. Insurer is the liability insurer of the Insured, and as such, would be obligated to pay any claim made or judgment obtained against Insured which is covered by its policy with Insured.
C. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below.
The parties agree as follows:
1.0 Release and Discharge
1.1 In consideration of the payments set forth in Section 2, Plaintiff hereby completely releases and forever discharges Insured and Insurer from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on tort, contract or other theory of recovery, which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Plaintiff, or any future wrongful death claim of Plaintiff's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Insured.
1.2 This release and discharge shall also apply to Insured's and Insurer's past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated.
1.3 This release, on the part of the Plaintiff, shall be a fully binding and complete settlement among the Plaintiff, the Insured and the Insurer, and their heirs, assigns and successors.
1.4 The Plaintiff acknowledges and agrees that the release and discharge set forth above is a general release. Plaintiff expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Plaintiff does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Plaintiff's decision to enter into this Settlement Agreement. The Plaintiff further agrees that Plaintiff has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Plaintiff assumes the risk that the facts or law may be other than Plaintiff believes. It is understood and agreed to by the parties that this settlement is a compromise of a doubtful and disputed claim, and the payments are not to be construed as an admission of liability on the part of Insured, by whom liability is expressly denied.
In consideration of the release set forth above, the Insurer on behalf of the Insured agrees to pay to the individual(s) named below ("Payee(s)") the sums outlined in Section 2 below:
2.1 Payments due at the time of settlement as follows:
The sum of _______ Dollars ($________) shall be paid to ____________________
2.2 Periodic payments made according to the schedule as follows (the "Periodic Payments"):
All sums set forth herein constitute damages on account of personal injuries and sickness, within the meaning of Section 104 (a)(2) of the Internal Revenue Code of 1986, as amended.
3.0 Modification or Transfer of Payment Rights
Each Plaintiff acknowledges and agrees that neither the Periodic Payments nor any rights thereto or interest therein (collectively" Payment Rights") can be:
(a). accelerated, deferred, increased or decreased by such Plaintiff or any other Payee; or
(b). sold, assigned, pledged, hypothecated or otherwise transferred or encumbered, either directly or indirectly, by such Plaintiff or any other Payee unless such sale, assignment, pledge, hypothecation or other transfer or encumbrance (any such transaction being hereinafter referred to as a "Transfer") has been approved in advance in a "qualified order" as defined in Section 5891(b)(2) of the Internal Revenue Code, as amended (a "Qualified Order"), and otherwise complies with applicable state law, including without limitation any and all applicable state structured settlement protection statutes.
No Plaintiff or other Payee shall have the power to affect any Transfer of Payment Rights except as provided in subparagraph (b) above, and any other purported Transfer of Payment Rights shall be wholly void.
4.0 Plaintiff's Beneficiary
Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by Plaintiff to the Insurer. If no person or entity is so designated by Plaintiff, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to the Insurer or Insurer’s Assignee. The designation must be in a form acceptable to the Insurer or Insurer’s Assignee before such payments are made.
5.0 Consent to Qualified Assignment
5.1 Plaintiff acknowledges and agrees that the Insured and/or the Insurer may make a "qualified assignment", within the meaning of Section 130© of the Internal Revenue Code of 1986, as amended, of the Insured's and/or the Insurer's liability to make the Periodic Payments set forth in Section 2.2 to _____________________________________________(the "Assignee") The Assignee's obligation for payment of the Periodic Payments shall be no greater than that of Insured and/or the Insurer (whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation.
5.2 Any such assignment, if made, shall be accepted by the Plaintiff without right of rejection and shall completely release and discharge the Insured and the Insurer from the Periodic Payments obligation assigned to the Assignee. The Plaintiff recognizes that, in the event of such an assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of the Insured and the Insurer shall thereupon become final, irrevocable and absolute.
6.0 Right to Purchase an Annuity
The Insured and/or the Insurer, itself or through its Assignee, reserve the right to fund the liability to make the Periodic Payments in Section 2.2 through the purchase of an annuity policy from ___________________________________. The Insured, the Insurer or the Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Insured, the Insurer or the Assignee may have ________________________________ mail payments directly to the Payee(s). The Plaintiff shall be responsible for maintaining a current mailing address for Payee(s) with the Assignee.
7.0 Discharge of Obligation
The obligation of the Insured and/or the Insurer to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee(s) named in Section 2 of this Settlement Agreement.
8.0 Attorney's Fees
Each party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with the Complaint, this Settlement Agreement and the matters and documents referred to herein, the filing of a Dismissal of the Complaint, and all related matters.
9.0 Representation of Comprehension of Document
In entering into this Settlement Agreement the Plaintiff represents that Plaintiff has relied upon the advice of his/her attorneys, who are the attorneys of his/her own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Plaintiff by his/her attorneys; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Plaintiff.
10.0 Warranty of Capacity to Execute Agreement
Plaintiff represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement, except as otherwise set forth herein; that Plaintiff has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Plaintiff has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement.
The parties agree that neither they nor their attorneys nor representatives shall reveal to anyone, other than as may be mutually agreed to in writing, any of the terms of this Settlement Agreement or any of the amounts, numbers or terms and conditions of any sums payable to Payee(s) hereunder.
12.0 Governing Law
This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of _____________.
13.0 Additional Documents
All parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement.
14.0 Entire Agreement and Successors in Interest
This Settlement Agreement contains the entire agreement between the Plaintiff, the Insured and the Insurer with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each.
This Settlement Agreement shall become effective immediately following execution by each of the parties.
Now that you are more familiar with an actual structural settlement agreement sample, you will be able to comprehend what will take place at the settlement hearing. Provided by Einstein Structured Settlements