Structured Settlements and Periodic Payment Judgments

PRODUCT DESCRIPTION

Structured Settlements and Periodic Payment Judgments is a complete reference work for attorneys, settlement planners, and insurance and annuity brokers. It contains complete and current coverage of all issues confronting those who resolve personal injury cases through structured settlements or who litigate cases under periodic payment of judgment rules.

Topics include: negotiation strategies; annuity testimony to prove future losses; the responsibilities of plaintiff and defense counsel; IRC Section 468B Settlement Funds; annuity rates; evaluating the financial strength of insurance companies; state insurance guarantee associations; financing alternatives; the interrelationship of periodic payments and entitlement to Social Security, Medicare and other public benefits; evaluating and augmenting damages; expert testimony; mass tort litigation; effects of tax legislation; structured settlement work processes; factoring; structuring worker's compensation cases; and more.

Author's Bio

Daniel W. Hindert

Daniel W. Hindert, a graduate of Williams College and Vanderbilt Law School. He is now a partner in Lewis Hansen in Salt Lake City, where he advises clients on personal injury litigation, both plaintiff and defense.

www.parsonsbehlelaw.com

Joseph J. Dehner

Joseph J. Dehner, an honors graduate of Princeton University and the Harvard Law School, is a member of Frost, Brown & Todd LLC, a Midwestern law firm, with his office in Cincinnati, Ohio.

www.frostbrowntodd.com

Patrick J. Hindert

Patrick Hindert is Managing Director of S2KM Limited. He is member of the Ohio State Bar Association and graduated from Harvard College and the University of Michigan Law School.

Hindert has been a leader within the structured settlement industry since since 1977. He previously served as President of Benefit Designs, Inc. (1977-98) and The National Structured Structured Settlement Trade Association (NSSTA) (1990-91) as well as Executive Director of the Society of Settlement Planners (SSP) (2003).

Hindert authors S2KM's blog "Beyond Structured Settlements" as well as S2KM's wikis. With Daniel Hindert and Joseph Dehner, Hindert authors Structured Settlements and Periodic Payment Judgments published by Law Journal Press® and updated semi-annually.

Additional Information

ISBN
978-1-58852-037-1
Page Count
858
Publication Date
1986
Author
Daniel W. Hindert, Joseph J. Dehner, & Patrick J. Hindert
Edition
looseleaf, one volume, & CD-ROM
SKU #
00598

TABLE OF CONTENTS

CHAPTER 1

Introduction and History

• 1.01 Periodic Payment Defined

[1] Lump Sum v. Periodic Payment

[2] Periodic Payment v. Structured Settlement

[3] Varieties of Periodic Payment Arrangements

• 1.02 History of Periodic Payment

[1] Common Law Reliance on Lump Sum Payment

[2] Single Recovery Rule and Periodic Payment

[3] Precedents for Periodic Payment of Damages

[a] Statutory Exceptions

[i] Alimony and Child Support

[ii] Workers’ Compensation

[iii] No-Fault Automobile Insurance

[iv] Medical Malpractice

[v] Childhood Vaccination Cases

[vi] Personal Injury Claims Generally

[vii] Minors and Incompetents

[b] Judicial Exceptions

[4] Early Use of Structured Settlements

• 1.03 Expanding Use of Periodic Payment

[1] Structured Settlements and Statutory Mandates

[2] Benefits to Parties

[3] Benefits to Society

[4] Guidelines for Use

[a] Particular Claimants

[i] Type of Injury

[ii] Type of Claimant

[b] Predictable Stream of Obligations

[c] Amount of Settlement

[d] Caveat Regarding Workers' Compensation Claims

• 1.04 Advantages and Disadvantages of Periodic Payment

[1] Advantages to Claimant

[a] Lifetime Payment

[b] Financial Management

[c] Tax-Free Income or Tax Deferral

[d] Settlement

[e] Increasing Benefits

[f] Workers Compensation MSAs

[2] Disadvantages to Claimant

[a] Financial Risk

[b] Lack of Liquidity

[c] Misperception of Amount of Award

[3] Advantages and Disadvantages to Plaintiff's Attorney

[4] Advantages and Disadvantages to Defendant and Insurer

[5] Advantages and Disadvantages to Defense

[6] Summary of the U.S, Structured Settlement Experience

• 1.05 Use of Structured Settlements Outside the United States

[1] Canada

[2] United Kingdom

[3] Continental Europe

[4] Australia and New Zealand

[5] Other Countries

• 1.06 Impact on Tort System

CHAPTER 2

Taxation of Damages Received by Claimant

• 2.01 Whether and When Settlements and Judgments Are Taxable


• 2.02 History of the Statutory Exclusion


• 2.03 Scope of the Exclusion

[1] "Damages (Other Than Punitive Damages) Received . . . On Account of Personal Physical Injuries or Physical Sickness”

[2] Damages Received as "Periodic Payments"

[a] "Receipt" of Damages

[i] Actual Receipt

[ii] Constructive Receipt

[b] Statutory History

[i] Tax Definitions for “Periodic Payment” and “Structured Settlements”

[ii] Legislative History of the Periodic Payment Settlement Act of 1982

[iii] Tax Rulings Codified by the Periodic Payment Settlement Act of 1982

[iv] Limited Repeal of the "General Creditor" Rule by the Technical and Miscellaneous Revenue Act of 1988

[v] Conclusions

[3] Nonexclusion of Damages Due to Prior Medical Deductions

[4] Other Exempt Recoveries

[5] Practice Tips for Minimizing the Risk of an IRS Settlement Challenge

• 2.04 Deduction of Expenses

[1] Attorney Fees and Other Costs of Litigation

[2] Medical Expenses

[a] Award Does Not Include Periodic Payments

[b] Award Includes Periodic Payments

• 2.05 Tax Consequences of Damage Awards as to a Decedent’s Estate

[1] Tax Consequences Compared: Proceeds from Wrongful Death and Survival Actions vs. Proceeds from Causes of Action That Arise Before the Injured Person’s Death

[a] Wrongful Death and Survival Actions

[i] Proceeds from Wrongful Death Are Not Subject to Estate Taxation

[ii] Income Tax Consequences of Proceeds from Wrongful Death and Survival Actions Are Determined Pursuant to Code Section 104(a)(2)

[b] Personal Injury Causes of Action in Which the Decedent Had an Interest Prior to Death

[i] Proceeds from Injury Claims Which the Decedent Had Prior to Death Are Subject to Estate Taxation

[ii] Income Tax Consequences of Proceeds from Injury Claims Which the Decedent Had Prior to Death Are Determined Pursuant to Code Sections 104(a)(2) and 691

[2] Statutory Grounds for Estate Tax Inclusion of Periodic Payments

[a] Code Section 2033

[b] Code Section 2039

[c] Code Section 2041

[3] Valuation of the Right to Receive Periodic Payments

[a] Valuation Formulas for Purposes of Code Section 2031

[b] The Right to Receive Periodic Payments Differs from Ownership of a Commercial Annuity

[c] Alternative Valuation Formulas Which May Apply to Periodic Payments

[i] Cost of a Commercial Annuity

[ii] Discounting to Present Value at 120% of the Federal Interest Rate

[iii] Willing Buyer/Willing Seller

[4] Planning Considerations

[a] Estate Planning Generally

[b] A Red Flag—Large Payout with Long Term Certain

[c] Avoiding Estate Tax Inclusion of Periodic Payments

[d] Annuity Commutation Provisions

[e] Liquidations

[5] Payment of an Estate Tax Liability

[a] Life Insurance Proceeds

[b] Liquidating Structured Settlement Rights

• 2.06 Non-Qualified Assignments

CHAPTER 3

Financing Alternatives for Structured Settlements
and Periodic Payment Judgments

• 3.01 Introduction


• 3.02 The Periodic Payment Obligation

[1] No Obligation

[2] Assumption of Obligation

[a] Mortality Risk

[b] Reinvestment Risk

[c] Insolvency Risk

[d] Morbidity Risk

[e] Inflation Risk

[f] Post-Settlement Events Arising from Claimant’s Side

[3] Transfer of Obligation

[a] Transfer of Periodic Payment Obligation Defined

[b] Method Recommended for Transfer of Obligation

[c] Method Not Recommended for Transfers of Obligation

• 3.03 Periodic Payment Financing Alternatives


• 3.04 Internal Financing

[1] Internal Financing of the Duty to Make Periodic Payments Defined

[2] Contractual Rights and Duties

• 3.05 Annuity Financing

[1] Annuity Financing of the Duty to Make Periodic Payments Defined

[2] Contractual Rights and Duties

[3] Legal Interests in the Annuity Contract

[a] Annuitant

[b] Owner

[c] Payee

[d] Beneficiary

[4] Settlement Annuities

[a] Fixed Annuities

[b] Other Types of Settlement Annuities

[c] Immediate v. Deferred Annuity

[d] Life Annuity

[e] Period Certain Annuity

[f] Life Annuity with a Period Certain

[g] Installment Refund Annuity

[h] Increasing Payment Annuity

[i] Step Annuity

[j] Deferred Lump Sums

[k] Survivorship Annuity

[l] Temporary Life Annuity

[m] Cash Refund Annuity

[5] Standard Age Ratings

[6] Substandard Age Ratings

[a] Substandard Age Rating Defined

[b] Medical Conditions Likely to Qualify for a Substandard Age Rating

[c] Information Needed by the Annuity Issuer

[i] Information Necessary for Determination of Life Expectancy (LE)

[ii] Medical Information Necessary for Specific Medical Histories

[7] Annuity Pricing and Price Changes

[a] Pricing is Related to Investment Rating

[b] Changes in Annuity Pricing

[c] Settlement Annuity Mortality

[8] Assessment of Premium Taxes

[a] States Which Levy a Premium Tax

[b] Criteria for Determining Whether a Premium Tax is Levied

[i] States Where Annuitant Resides

[ii] State Where Owner Resides

[iii] State Where Annuity Application is Executed

[9] Life Insurance Insolvencies

[10] Life Insurance Guaranty Associations

[11] First Executive Corporation and the Executive Life Insurance Companies

[12] Executive Life Insurance Company of California Insolvency

[13] Executive Life Insurance Company of New York Insolvency

[14] Other Life Insurance Insolvencies Involving Structured Settlements

• 3.06 Qualified Assignment

[1] Qualified Assignment of the Duty to Make Periodic Payments Defined

[2] Contractual Rights and Duties

[3] Compliance with Statutory Requirements

[a] Underlying Tort Claim Must Involve Physical Injury or Physical Sickness

[b] Periodic Payments Must Be Excludable by the Recipient

[c] Assignor Must Be a Party to the Suit or Agreement which Gives Rise to the Periodic Payment Obligation

[d] Periodic Payments Must Be Fixed and Determined as to Amount and Time of Payment

[e] Periodic Payments Cannot Be Accelerated, Deferred, Increased, or Decreased by the Recipient

[f] Assignee's Obligation Must Be No Greater Than hat of the Assignor

[g] Assignee Must Purchase a Qualified Funding Asset

[4] U.S. Government Bond Funds

[5] Qualified Assignment as a Secured Transaction

[a] Security Interests in Annuity Contracts

[b] Security Interests in U.S. Government Obligations

[6] Qualified Assignment from a Section 468B Fund

[7] Qualified Assignment from Offshore Company

• 3.06A Non-Qualified Assignment


• 3.07 Periodic Payment Reinsurance with Transfer of the Duty to Make Periodic Payments

[1] Indemnity Reinsurance

[a] Indemnity Reinsurance of the Duty to Make Periodic Payments Defined

[b] Contractual Rights and Duties

[2] Periodic Payment Reinsurance with Transfer of the Duty to Make Periodic Payments

[a] Periodic Payment Reinsurance with Transfer of Duty to Make Periodic Payments Defined

[b] Contractual Rights and Duties

[c] Transfer of the Duty to Make Periodic Payments Other Than 104(a)(2) Payments by Assumption Reinsurance

[d] Advantages and Disadvantages of Using Periodic Payment Reinsurance to Transfer the Duty to Make Periodic Payments in Comparison to Using Annuity-funded Qualified Assignments to Achieve Transfer of that Duty

• 3.07A Settlement Trusts

[1] Introduction

[2] Types of Settlement Trusts

[a] Qualified Government Bond Trust

[i] Introduction

[ii] Risk of Misappropriation of Trust Assets—Stanwich and SBU

[b] Reversionary Grantor Trust

[c] Settlement Preservation Trusts

[d] Special Needs Trusts

[e] Medicare Set-Aside Trusts

[f] Section 468B Settlement Funds

[3] Selecting a Settlement Trustee

• 3.08 Reversionary Grantor Trust

[1] Reversionary Grantor Trust Defined

[2] Rights, Duties, and Powers

• 3.08A Supplemental Needs Trust

[1] Supplemental Needs or Special Needs Trust Defined

[2] Characteristics of Supplemental Needs or Special Needs Trusts

[a] Medicaid Payback Trusts

• 3.08B Section 468B Settlement Funds

[1] What Are Section 468B Funds?

[2] Statutory and Regulatory Background

[3] When and Why Are 468B Funds Used?

[4] What Are the Mechanics of Setting Up and Operating a 468B Fund?

[a] Creating the 468B Fund

[i] Motion or Order to Approve Establishing a Fund

[ii] Motion for Order to Appoint Administrator and to Establish Terms of Administration

[iii] Notice of Administrator’s Acceptance of Appointment

[b] Administering the 468B Fund

[i] Motion for Order to Approve Defendants’ Settlement with Fund

[ii] Distribution of Attorney Fees

[iii] Administrator’s Declaration of Supporting Materials

[iv] Administrator Signs Settlement Agreements with All Claimants

[v] Motion for Order to Approve Distributions to Certify Settlement Agreements, and to Authorize Disbursement of Proceeds

[c] Terminating the 468B Fund

[5] Practice Tips for Courts, Litigators and Fund Administrators

[a] Petitions to Establish a 468B Fund

[b] Selection of a Fund Administrator

[i] Choosing the Fund Administrator

[ii] Duties to the Supervising Authority

[iii] Fiduciary Duties

[iv] Investment and Accounting Duties

[v] Negotiating Duties

[vi] Advising as to Forms of Distribution

[c] Terms of Fund Administration

[i] Restrictions on Handling Fund Proceeds

[ii] Compensation of the Fund Administrator

[iii] Subrogation and Reimbursement Claims

[iv] Disagreement as to Allocation of Settlement Shares

[d] Taxation of Funds

[e] Petitions for Distribution of Fund Proceeds

[f] Single Claimant Funds—and Other Issues Requiring Legal Advice

[g] Choice of Forum for 468B Fund When One or More Claimants Against the Fund Is a Protected Person

[i] Consolidate Probate Proceedings in the Court Where the Complaint Is Filed and the 468B Fund Is or Will Be Established

[ii] Maintain Probate Proceedings Separate from the Court Where the Complaint Is Filed and the 468B Fund Is or Will Be Established.

[iii] Establish the 468B Fund in the Court Having Jurisdiction Over the Protected Person’s Affairs

• 3.09 Surety Bonds and Other Financial Guarantees

[1] "Surety" Which is Not a Surety

[2] Surety Within Same Economic Family as Assignee

• 3.10 Other Financing Vehicles

[1] Introduction

[2] Financial Services Modernization Act

[3] State Funds and Statutes

[4] Life Insurance

[5] Retained Asset Accounts

[6] Variable Annuities

[7] Indexed Annuities

[8] Commutation Riders

[9] Medical Cost Products

[10] Recycled Structured Settlement Payment Rights

[11] ABLE Accounts

[12] Conclusion

CHAPTER 4

Role and Responsibilities of Defense Counsel
in Structured Settlements

• 4.01 Why the Nature of the Settlement Matters to the Defense

[1] Effect of Periodic Payments on the Defense

[2] Structured Settlement Participants

[3] Basic Structured Settlement Questions for Defendants

[4] Structured Settlement Value and Metrics

• 4.02 Insurance Policy Issues

[1] Control of Decisions

[2] Policy Limits

• 4.03 Financial Impact on Defense Participants

[1] Taxable Self-Insured Defendants

[2] Nontaxable Self-Insured Defendants

[3] Liability Insurers

[a] Regulation

[b] Accounting

[c] Taxation

[d] Related Party Transactions

• 4.04 Privacy


• 4.04A Structured Settlements or Cashing Out


• 4.05 Defendant Disclosure Issues

[1] Introduction

[2] State Structured Settlement Protection Statutes

[3] Product Disclosures and Representations

[a] Introduction

[b] Cost or Value

[c] NAIC Annuity Disclosure Model Regulation

[d] NAIC Suitability in Annuity Transactions Model Regulations

[e] Compensation

[f] “Guaranteed” Payments

[g] Dissipation Studies

[h] Public Assistance

[i] Annuity Ownership and Rights

[j] Taxation

[k] Financial Condition

[4] Conflicts of Interest

[5] Medicaid/Medicare Disclosures

[6] Securities Issues

[7] Class Action Lawsuits vs. Defendants

[a] Macomber v. Travelers

[b] Spencer v. Hartford

[8] Meeting Professional Responsibilities

• 4.05 Disclosure About the Settlement and the Obligor

[1] Disclosure of Obligor’s Financial Condition

[2] Securities Law Issues

[3] Cost of a Settlement; Affiliated Annuity Issuers

[4] Compensation

[5] A Practical Approach to Meeting a Professional Responsibility

[6] State Mandated Disclosures

[7] Medicare/Medicaid Disclosures

• 4.06 Drafting of Settlement Documents

[1] Ultimate Responsibility for the Settlement Documents

[2] Release for All but the Obligor

[3] Definition of Roles and Obligations

[4] Court Approval

• 4.07 Multiple Defendants

[1] Management by the Defense

[2] Options for Defense Participants

[3] The Importance of Clear Drafting of Settlement Documents

CHAPTER 5

Role and Responsibilities of Plaintiff’s Counsel
in Structured Settlements

• 5.01 Why the Nature of a Settlement Matters to the Plaintiff’s Attorney

[1] Effect of Structured Settlements on the Role of the Plaintiff’s Attorney

[2] Assistance Available to Plaintiffs and Their Attorneys

• 5.02 Comparing Lump Sum and Structured Settlements

[1] Many Different Criteria Are Appropriate for Decision-Making

[2] Financial Criteria

[a] Cost to the Defense

[b] Benefit to the Claimant

[i] Net Yield

[ii] Equivalent Yield

[3] Comparing Settlement Alternatives

[4] Interrelationship with Government Benefits

[a] Social Security Disability Payments

[b] Supplemental Security Income

[c] Aid to Families with Dependent Children

[d] Medicare and Medicaid

[e] ABLE Accounts

[f] Planning a Strategy

[5] Ability to Liquidate a Structured Settlement

[6] The Special Case of Minors and Incompetents

[7] Efforts to Get a Lump Sum and Then Structure It

• 5.03 Using a Qualified Assignment to Make the Plaintiff a Secured Creditor

[1] Deciding Whether and How to Grant Secured Creditor Rights

[2] Impact of Article 9 of Uniform Commercial Code

[a] Article 9 Prior to Its 1999 Revision

[b] 1999 Revision of Article 9

[3] Methods of Securing the Transaction

[a] Methods to Avoid

[b] Methods to Use

[i] Pledges

[ii] Guarantees

[iii] Surety Bonds

[iv] Other Methods

[4] Security Interests in Annuity Contracts

[5] Security Interests in U.S. Government Obligations

• 5.04 Addressing the Risk of Nonpayment to a Claimant

[1] Protecting the Claimant

[a] Legislative and Regulatory Role

[b] Attorney’s Role

[2] Creditor Rights Against the Obligor

[a] “General Creditor” Rule

[i] Judicial Liens

[ii] Irrevocable Payees

[b] Insolvency of Obligor

[i] Insurance Company as Obligor

[ii] Non-Insurance Company as Obligor

[3] Other Rights and Remedies for Collecting Periodic Payments

[a] Rights Against Additional Obligors, Guarantors, or Sureties

[b] Rights Against the Provider of Structured Settlement Financing

[i] Annuity Issuer

[ii] Liability Reinsurer

[c] Rights Against an Insurance Guaranty Association

[i] Guaranty Associations Covering Liability Insurers

[ii] Guaranty Associations Covering Life Insurers

[4] Evaluating the Obligor and Others Involved in Making or Providing Payments

[a] Evaluating the Strength of Insurance Companies—Risk-Based Capital Analysis Overview

[b] Evaluating the Strength of Insurance Companies—The Rating Agencies

[i] A.M. Best Company

[ii] Fitch Ratings

[iii] Moody’s Investors Service

[iv] Standard & Poor’s Corporation

[v] Weiss Research, Inc.

[vi] Summary

[c] Evaluating the Strength of Non-Insurance Companies

[5] Obtaining Representations from the Defense

• 5.05 Controlling Decision Making About Structured Settlements

[1] Control Issues

[a] Settlement or Trial

[b] The Type of Settlement

[c] Qualified Assignments

[d] Funding

[e] Payments and Payees

[2] How Plaintiffs Can Increase Control

[a] Involving a Plaintiff’s Consultant

[b] Section 468B Funds

[c] Trusts

[3] Privacy

• 5.06 Drafting Settlement Documents

[1] Ultimate Responsibility for Certain Aspects of Settlement Documents

[2] Definitions of Payees

[3] Other Matters of Plaintiff’s Concern

[4] Addressing Subrogation Rights

• 5.07 Attorney Compensation

[1] Determining the Amount of a Contingent Fee

[a] The Requirement of a Communication

[b] Amount of the Fee

[i] Obstacles to Establishing Present Value

[ii] Methods of Establishing Present Value

[A] Cost Method

[B] Discount Method

[iii] Sample Language for Fee Agreement

[iv] Disclosure of Cost

[v] Avoiding Conflicts

[vi] Avoiding Jail

[c] Timing of the Fee

[2] Taxation of Deferred Compensation

CHAPTER 6

Case Preparation

• 6.01 Increased Need for Information About the Claimant


• 6.02 Structured Settlement Consultants

[1] Roles and Responsibilities of Consultants

[a] Product Sales

[b] Other Services

[i] Cost and Benefit Analysis

[ii] Evaluation of Damages

[iii] Negotiation Assistance

[iv] Government Benefits

[v] Expert Testimony

[vi] Verdict Analysis

[vii] Sample Closing Documentation

[viii] Settlement Transfers

[c] Product Suitability

[2] Selecting Structured Settlement Consultants

[a] Introduction

[b] Professional Trade Associations

[i] National Structured Settlement Trade Association (NSSTA)

[ii] The Society of Settlement Planners (SSP)

[iii] The National Association of Settlement Purchasers (NASP)

[iv] Other Professional Associations

[c] Selection Criteria

[3] Business Practices of Consultants

[a] Introduction

[b] Laws and Regulations

[c] Industry Standards

[d] Issues

[i] Anti-Competitive Practices

[ii] Commission Disputes

[iii] Privacy

[iv] Representations and Disclosures

• 6.03 Evaluation and Argumentation of Damages

[1] Determinants of Future Loss

[a] Future Medical Expenses

[i] Duration of Loss

[ii] Medical Expense Base

[iii] Medical Expense Growth Rate

[b] Future Lost Earnings

[i] Duration of Loss

[ii] Lost Earnings Base

[iii] Earnings Growth Rate

[c] Future Expenses—All Components

[2] Present Value of Future Loss

[a] Discount Rate

[b] Inflation

[c] Income Tax

• 6.04 Sample Evaluation of Damages

[1] Hypothetical Claim for Brain-Damaged Child

[2] Purpose of Evaluation

[3] Findings of Economic Loss

[4] Comparison of Key Assumptions

[5] Effect of Alternative Assumptions

[6] Application of Periodic Payment

[a] Schedule of Benefits

[b] Cost of Benefits

• 6.05 Discovery Issues

[1] Scope of Discovery

[2] Potential Bars to Discovery

[a] Work Product Protection

[i] Protection is Qualified

[ii] Protection Does Not Include Facts

[iii] Protection is Strengthened by Involvement of Counsel

[iv] Protection May Be Weakened by Involvement of a Testifying Expert

[b] Consulting Expert Protection

[3] Direct Discovery from a Structured Settlement Consultant

[a] Discovery of the Consulting Expert's Identity

[b] Subpoena Duces Tecum

• 6.06 Using a Checklist

[1] Contents of Checklist

[2] Checklist of Documents

CHAPTER 7

Case Negotiation

• 7.01 Introduction


• 7.02 Guidelines for Negotiating Structured Settlements

[1] Initial Case Review

[a] Statutory Requirements and Limitations

[b] Reviewing Information Checklists

[c] Obtaining Preliminary Quotes

[2] Assemble Supporting Materials

[a] Tax Materials

[b] Financial Materials

[c] Offer Materials

[d] Economic Materials

[e] Settlement Documentation Forms

[3] Determine Each Participant's Position on Use of Periodic Payment

[a] Inquiries by Plaintiff's Attorney

[b] Inquiries by Defense Counsel

[4] Identify Specific Objectives for Each Negotiating Session

[5] Making an Offer

[a] Describe a Rationale

[b] State Terms with Precision

[i] Timing of Periodic Payments

[ii] Certain v. Life Contingent Payments

[iii] Increase Factors

[iv] Choice of Obligor

[v] Expiration of Offer

[c] Reduce All Offers to Writing

[6] Analyzing an Offer

[a] Wait for a Complete Response to Each Prior Offer

[b] Determine the Cost of Each Element

[c] Compare Price Differentials

[d] Set-Offs, Public Benefits and Other Matters

[7] Concluding a Negotiation

[a] Provide a Written Confirmation

[b] Review Documentation

[c] Review Tax and Financing Issues

[d] Obtain Third-Party Approvals

• 7.03 Defense Strategies

[1] Evaluate and Confirm the Role of Structured Settlements

[2] Define a Negotiation Strategy

[3] Establish Value by Reference to Claimant's Economic Needs

[4] Negotiate Benefits, Not Cost

[5] Make Only One Offer at a Time

[6] Condition Any Structured Settlement Offer or Counter Offer on the Client's Preferred Method of Financing

[7] Condition the Offer on Confidentiality from Third Parties

[8] Make All Mandatory Disclosures

• 7.04 Claimant's Strategies

[1] Determine Whether Structured Settlement is Appropriate

[2] Determine Defendants’ Structured Settlement Policy and Strategy

[3] Identify and Retain Structured Settlement Experts

[4] Use a Period Certain that Approximates the Claimant's Life Expectancy

[5] Negotiate Benefits Separately for Each Claimant

[6] Consider Alternatives to Big Balloon Payments with Long Deferrals

[7] Evaluate Attendance by a Claimant

[8] Ask the Defense to Unbundle the Financing

• 7.05 Other Issues

[1] Liens on Amounts Recoverable by Claimant

[2] Bad Faith

[3] Offer of Judgments

[4] Post-Judgment Settlements

[5] Disclosure of Cost

[6] Attorney Fees

[a] Sequence of Negotiation of the Fee

[b] Amount of the Fee

[c] Timing of the Fee

[7] Structured Settlement Compensation

[8] Representations Regarding Taxation and Financing

[9] Complex Litigation

[a] Treatment of Partial Periodic Payment Settlements

[b] Settlement Funds

[10] The Court's Role

• 7.06 Negotiation Checklist

CHAPTER 8

Case Closing

• 8.01 Introduction


• 8.02 Administrative Steps in Closing

[1] Defense Counsel Gives Notification of Settlement or Judgment

[2] Consultant Confirms a Financing Commitment

[3] Obtaining Court Approval

[4] Defense Team Submits All Closing Materials to Consultant

[5] Consultant Obtains Financing and Sends Evidence to Defense Team

• 8.03 Closing Documentation

[1] Need for Careful Drafting

[2] Settlement Agreement

[3] Supplemental Schedule

[4] Annuity Contract

[5] Qualified Assignment

[6] Advisory Disclosure

[7] Surety Bond and Guarantees

[8] Commutation Rider

[9] Indemnity Reinsurance

[10] Assumption Reinsurance

[11] Reversionary Grantor Trust

[12] Special Needs Trust

• 8.04 Issues Arising After Closing of the Case

[1] Claimant's Divorce

[a] Periodic Payments as Marital Property

[b] Periodic Payments as Separate Property

[c] Periodic Payments as a Mix of Marital and Separate Property

[d] Child Support

[2] Claimant's Indebtedness

[a] Bankruptcy

[b] Assignment of Future Payment Rights

[c] Garnishment of Damage Payments

[3] Claimant's Death

[4] Attempts to Set Aside Settlement Agreement Because of Adverse Tax Impact

• 8.05 Settlement Hearing

CHAPTER 9

Uniform Periodic Payment of Judgments Act

• 9.01 History of the Uniform Act

[1] The National Conference of Commissioners on Uniform State Laws

[2] The Model Act

[3] The Uniform Act

• 9.02 Summary of the Uniform Act

[1] Scope of the Act

[2] Election for the Act to Apply

[3] Required Damages Findings

[4] Determining the Form of the Judgment

[a] Step One: Apply Any Rules of Law, Other Than Setoff or Credit, That Increase or Reduce the Recovery

[b] Step Two: Account for Any Lump-Sum Setoff or Credit

[c] Step Three: Account for Any Periodic-Payment Setoff or Credit

[d] Step Four: Specify Attorney's Fees and Litigation Expenses

[e] Step Five: Adjust the Periodic Payments as Necessary to Provide Funds to Pay Any Attorney's Fees and Litigation Expenses Owed in Lump Sum

[f] Step Six: Adjust the Periodic Payments as Necessary to Pay Anything Else Owed in Lump Sum

[g] Step Seven: Specify All Lump Sums and Periodic Payments in the Judgment

[h] No Interest on Periodic Payments

[i] Step Eight: Describe the Qualified Funding Plan in the Judgment

[5] Effect of Death

[6] Funding the Judgment

[a] Qualified Funding Plans

[i] Defendant is the Obligor

[ii] Defendant's Liability Insurer is the Obligor

[iii] Assignee is the Obligor

[iv] Reinsurer is the Obligor

[v] Agreement of the Parties

[b] Time Limit for Providing Funding

[c] More Than One Defendant Liable

[d] Liability Insurer's Obligation

[e] Inability to Fund

[7] Bonding the Judgment on Appeal

[8] Satisfaction of Judgment

[9] Assignment and Exemption of Periodic Payments

[10] Arbitrations and Settlement Agreements

[11] Duties of the Insurance Commissioner

[12] Effective Date of the Act

• 9.03 Analysis and Evaluation of the Uniform Act

[1] Scope of the Act

[a] Limited to Bodily Injury

[b] Limited to Future Economic Damages

[2] Election for the Act to Apply

[a] $100,000 Threshold

[b] Essentially Mandatory

[3] Required Damages Findings

[a] Inflation is Key

[b] Special Verdict Defines the Periodic-Payment Schedule

[c] Special Verdict Increases the Complexity of the Jury's Task

[d] No Need to Determine Life Expectancy for Lifetime Medical Expenses

[4] Determining the Form of the Judgment

[a] For Any Given Verdict There is But One Possible Periodic-Payment Judgment

[b] Present Value Equals the Cost of Funding

[c] No Interest on Periodic Payments

[5] Effect of Death

[6] Funding the Judgment

[a] Regulation of Participants in Funding Plans

[b] Provision for Secured-Creditor Status

[c] Permits Flexibility in Funding

[d] Future Insolvency Not Addressed

[7] Liability Insurer's Obligation

[8] Assignment and Garnishment

[9] Judicial Receptivity to the Uniform Act

• 9.04 Hypothetical Applications of the Uniform Act

[1] Assumptions Underlying Three Hypothetical Cases

[2] First Scenario: Adjustment of Verdict for One-Third Lump-Sum Attorney's Fee

[a] Case 1

[i] Calculation of Fee

[ii] Source of Funds to Pay Fee

[iii] Judgment

[b] Case 2

[i] Calculation of Fee

[ii] Source of Funds to Pay Fee

[iii] Judgment

[c] Case 3

[i] Calculation of Fee

[ii] Source of Funds to Pay Fee

[iii] Judgment

[3] Second Scenario: Adjustment of Verdict for
(1) Prior Settlement of $300,000 in Cash and
(2) One-Third Attorney's Fee

[a] Case 1

[i] Settlement Setoff

[ii] Calculation of Fee

[iii] Source of Funds to Pay Fee

[iv] Judgment

[b] Case 2

[i] Settlement Setoff

[ii] Calculation of Fee

[iii] Source of Funds to Pay Fee

[iv] Judgment

[c] Case 3

[i] Settlement Setoff

[ii] Calculation of Fee

[iii] Source of Funds to Pay Fee

[iv] Judgment

[4] Third Scenario: Adjustment of Verdict for
(1) Prior Settlement of $300,000 in Cash and Periodic Payments That Cost $400,000 and
(2) One-Third Attorney's Fee

[a] Case 1

[i] Settlement Setoff for $300,000 in Cash

[ii] Settlement Setoff for Periodic Payments That Cost $400,000

[iii] Calculation of Fee

[iv] Source of Funds to Pay Fee

[v] Judgment

[b] Case 2

[i] Settlement Setoff for $300,000 in Cash

[ii] Settlement Setoff for Periodic Payments That Cost $400,000

[iii] Calculation of Fee

[iv] Source of Funds to Pay Fee

[v] Judgment

[c] Case 3

[i] Settlement Setoff for $300,000 in Cash

[ii] Settlement Setoff for Periodic Payments That Cost $400,000

[iii] Calculation of Fee

[iv] Source of Funds to Pay Fee

[v] Judgment

[5] Hypothetical Case in the Commissioners' Comment to the Uniform Act

CHAPTER 10

Survey of State Statutes on
Periodic Payment of Judgments

• 10.01 Introduction


• 10.02 Damages Subject to Periodic Payment

[1] Injuries Covered by State Statutes

[2] Threshold Amounts

[3] Damages Which May Be Paid Periodically

[4] Applicability to Torts Prior to Statutes Passage

• 10.03 Roles of Parties, Judge and Jury

[1] Optional Periodic Payments

[2] Judge's Discretion to Order Periodic Payments

[3] Role of the Jury

[4] Determination of Damages

• 10.04 Form of the Periodic Payment Judgment

[1] Essential Terms of the Judgment

[2] Assurance of Payment

[3] Availability of Adjustments

[4] Reversions and Beneficiaries

• 10.05 Treatment of Attorney Fees


• 10.06 Constitutionality of State Statutes Authorizing Periodic Payment Judgments

[1] Constitutionality of Statutes Singling Out Medical Malpractice Cases

[2] Constitutionality of Statutes Generally Authorizing Periodic Payment of Judgments

CHAPTER 11

Procedure for Fashioning
a Periodic Payment Judgment

• 11.01 The Request for a Periodic Payment Judgment

[1] Initial Pleadings

[2] Pre-Trial Motion

[3] Post-Verdict Motion

• 11.02 Discovery


• 11.03 Itemized Verdicts

[1] Needed Elements

[2] Alternatives

• 11.04 Presentation of Damages

[1] Generally

[2] Plaintiff's Presentation

[3] Defense Presentation

[4] Annuity Testimony

• 11.05 Post-Verdict Events

[1] Translating the Verdict's Numbers into a Judgment

[2] Offsets and Other Reductions

[3] Attorney Fees

[a] Amount of the Fee

[b] Allocating Fees Among Portions of the Judgment

[c] Timing of Fee Receipt

[4] The Periodic Payment Plan

[a] Who Will Pay?

[b] Assurances that Future Payments Will Be Made

[c] Modifications and Reversionary Rights

[5] Post-Verdict Hearing

[6] An Example of a Verdict Translated into a Periodic Payment Judgment

[7] Interest

• 11.06 Appeals


• 11.07 Conclusions

CHAPTER 12

Annuity Testimony

• 12.01 Introduction


• 12.02 Use of Annuity Testimony

[1] The Economics of Present Cash Value

[2] Annuity Testimony as an Alternative Method of Present Value Calculation

[3] “Annuitist” Defined

• 12.03 Standards of Review

[1] Trial Court Discretion

[2] Misleading, Confusing, or Prejudicial Nature of Evidence v. Its Probative Value

[3] Statutes or Rules Requiring or Permitting Use of Annuity Testimony

[a] Specific Evidentiary Rules

[b] Periodic Payment Judgment Statutes

• 12.04 Distinguishing Types of Annuity Testimony

[1] Annuity Tables or Neutral Figures

[2] Single v. Multiple Quotes as Indication of Market Rate

[3] Economist Testifying About Annuity Prices

• 12.05 Objections to Annuity Testimony

[1] Hearsay

[2] Quote Expiration

[3] Rated Age v. Life Expectancy

[4] Risk Allocation

[a] Tort Victim is Entitled to Risk-Free Discount Rate

[b] Risk of Default

[c] Risks of Inflation and Consumption

[5] Future Medical Expenses

[6] Possible Affiliation with Defendant’s Insurer

[7] Double Discounting

[8] Failure to Identify the Annuitist as an Expert

• 12.06 Strengths of Annuity Testimony

[1] Present Value Calculation in Real World Terms

[2] Risk of Life Expectancy is Transferred to the Annuity Issuer

CHAPTER 13

Periodic Payments in Environmental Cases

• 13.01 Introduction


• 13.02 Environmental Personal Injury Claims


• 13.03 Superfund Cases


• 13.04 Resolving Environmental Claims with Section 468B Qualified Settlement Funds


• 13.05 Caveat on Use of Section 468B in Environmental Settlements with a Remote Obligation

CHAPTER 14

Structuring Workers' Compensation Claims

• 14.01 Nature of Workers' Compensation Laws


• 14.02 Statutory Benefits


• 14.03 Funding Workers' Compensation Benefits


• 14.04 Tax Treatment of Benefits


• 14.05 Claim Financing Techniques

[1] Compromise Settlements and Redemptions

[2] Financing of Statutory Obligations

[a] Accounting Issues

[b] Economic Results

[3] Post-Settlement Treatment of Benefits

• 14.06 Workers Compensation Medicare Set-Aside Arrangements

[1] Introduction

[2] CMS WCMSA Reference Guide

[3] WCMSA Self-Administration Toolkit

[4] CMS Policy Memoranda

CHAPTER 15

Government Benefits and Structured Settlements

• 15.01 Introduction


• 15.02 Social Security

[1] History of Disability Programs

[a] Traditional Sources of Economic Security

[b] Formal Systems of Economic Security

[i] English Poor Laws

[ii] Colonial America

[iii] Civil War Pensions

[iv] Corporate Pensions

[v] State Old-Age Pensions

[vi] Demographic Changes

[vii] Social Insurance Movement

[2] The Social Security Act

[a] Original Enactment and Expansion

[b] Major Provisions

[c] Program Growth

[3] The Social Security Administration

[4] Social Security Benefits for People with Disabilities

[a] Definition of “Disability”

[b] Social Security Disability Insurance (SSD)

[i] Introduction

[ii] Eligibility

[iii] Benefits

[iv] SSD, Medicare and Workers Compensation

[v] Disabled Adult Children’s Benefits

[c] Supplemental Security Income (SSI)

[i] Introduction

[ii] Eligibility Requirements

[A] General Requirements

[B] Income Requirements

[C] Resource Requirements

[D] Transfer of Assets

[iii] Benefits

[iv] SSI and Structured Settlements

• 15.03 Medicare

[1] Introduction

[2] Medicare Secondary Payer Rules

[3] Conditional Payment Process

[4] Medicare, Medicaid and SCHIP Extension Act of 2007

[5] Medicare Set-Aside Arrangements

[a] Introduction

[b] Workers Compensation MSAs

[c] Liability MSAs

[6] SMART Act of 2012

[a] Section 201: Requirement that CMS Maintain a Secure Website

[b] Section 202: Reimbursement and Reporting Thresholds

[c] Section 203: Reporting Requirement

[d] Section 204: Use of Social Security Numbers and Other Identifying Information Is Optional

[e] Section 205: Three-Year Statute of Limitations

• 15.04 Medicaid

[1] Introduction

[2] Medicaid Omnibus Reconciliation Budget Act

[3] Deficit Reduction Act of 2005

[a] Disclosure

[b] State as Remainder Beneficiary

[c] Annuity Design

[d] Pre-DRA Annuity Purchases

[4] Structured Settlement DRA Issues

[5] Regulation

[a] Social Security Administration (SSA)

[b] Centers for Medicare and Medicaid Services (CMS)

[c] State Medicaid Agencies

[6] Medicaid Liens

[7] Special Needs Trusts

[a] Introduction

[b] Self-Settled Special Needs Trusts

[i] Definition and General Requirements

[ii] Availability of Assets

[iii] Transfer Rules

[iv] Disbursement Rules

[v] Payback Rules

[vi] Pooled Trusts

[8] Structured Settlement Rules for Special Needs Trusts

[a] Definitions

[b] Social Security Administration Rules

[c] Centers for Medicare and Medicaid Services Rules

[i] Deficit Reduction Act

[ii] Secondary Market

• 15.05 Veterans Benefits


• 15.06 Federally Assisted Housing

[1] Section 202 Program

[2] Section 8 Rental Assistance

• 15.07 Patients Protection and Affordable Care Act

CHAPTER 16

Transfers of Structured Settlement Payment Rights

• 16.01 Introduction

[1] Background

[2] Definitions

[3] Public Policy

[4] Purpose of Chapter

• 16.02 History of Structured Settlement Transfers

[1] Origin and Participants

[2] Business Practices and Issues

[a] In General

[b] Contract Rights vs. Annuity Rights

[c] Anti-Assignment Language

[d] Validity of Assignments

[e] UCC Article 9

[f] Restatement (Second) of Contracts

[g] Taxation Issues

[h] Fixed vs. Life Contingent Payments

[i] Purchase vs. Loan

• 16.03 IRC § 5891

[1] Introduction

[2] Summary of Act

[a] Imposition of Tax

[b] Exception for Certain Approved Transactions

[i] In General

[ii] Qualified Order

[iii] Applicable State Statute

[iv] Applicable State Court

[v] Qualified Order as Dispositive

[c] Definitions

[i] Structured Settlement

[ii] Structured Settlement Payment Rights

[iii] Structured Settlement Factoring Transaction

[iv] Factoring Discount

[v] Responsible Administrative Authority

[vi] State

[d] Coordination with Other Provisions

[i] In General

[ii] No Withholding of Tax

[iii] Effective Dates

[A] In General

[B] Clarification of Existing Law

[C] Transition Rule

[3] Analysis of IRC § 5891

[a] In General

[i] Public Policy

[ii] Effect on Structured Settlement Industry

[iii] Structured Settlement Factoring Transactions

[b] Imposition of Tax

[c] Approved Transactions

[d] Definitions

[i] Structured Settlement

[ii] Structured Settlement Payment Rights

[iii] Structured Settlement Factoring Transaction

[iv] Factoring Discount

[v] Responsible Administrative Authority

[e] Related Tax Provisions

[f] Impact of IRC § 5891

[i] Claimants and Their Attorneys

[ii] State Legislatures

[iii] State Judges

[iv] Transfer Companies

[v] Defendants and Their Attorneys

[vi] Structured Settlement Industry

• 16.04 Structured Settlement Protection Acts (SSPAs)

[1] Legislative Recognition of the Need for SSPAs

[2] Model Legislation

[3] How the SSPAs Work

[a] Required Disclosures

[b] Court Approval

[c] Procedural Requirements

[d] Supplemental Protections

[4] Procedure for Seeking Court Approval

[a] Where to File the Transfer Application

[b] Contents of the Transfer Application

[i] Application for Approval of Transfer

[ii] Transfer Agreement

[iii] Disclosure Statement

[iv] Notice to Interested Parties

[v] Listing of the Payee’s Dependents

[vi] Full Details of Underlying Structured Settlement Documentation

[5] Opposed vs. Unopposed Applications

[a] Unopposed Applications

[b] Objections Based on Contractual Anti-Assignment Provisions

[c] Objections Based on Other Grounds

[6] Transfers vs. Commutations

[7] Proceedings

• 16.05 Judicial Review of Transfer Applications

[1] Role of the Court as Gatekeeper

[2] Identifying the Applicable SSPA(s)

[3] Conduct of Proceedings

[a] Importance of Conducting a Hearing

[b] Importance of Questioning the Payee

[c] Importance of Questioning the Applicant’s Counsel

[d] Burden of Proof

[4] Issues the Court is Required to Address

[a] Payee’s Best Interest

[b] Compliance With SSPA Requirements

[i] Notice Requirements

[ii] Other Objective Requirements

[c] Noncontravention of Applicable Law

[i] Workers’ Compensation Laws

[ii] Tort Reform Statutes

[iii] Court Orders Approving Settlements

[iv] Contractual Anti-Assignment Restrictions

[v] Arbitration Clauses

[vi] Sovereign Immunity

[d] Independent Professional Advice

[5] Conflicting Interests in Payment Rights

[6] Legal Effects of An Approved Transfer

• 16.06 Determining Whether the Excise Tax on Transferee Applies Under IRC § 5891


• 16.07 Securitization of Structured Settlement Payment Rights

APPENDICES

(ON ACCOMPANYING CD-ROM)

 

Appendix A: Federal Tax Materials

Appendix A(1): Internal Revenue Code § 104

Appendix A(2): Treasury Regulation § 1.104-1

Appendix A(3): Internal Revenue Code § 130

Appendix A(4): Internal Revenue Code § 468B

Appendix A(5): Treasury Regulations §§ 1.468B and 1.468B-1 through B-5

Appendix A(6): Revenue Procedure 93-34

Appendix A(7): Internal Revenue Code Section 5891

Appendix A(8): Technical Explanation of the Victims of Terrorism Tax Relief Act of 2001 (Code Section 5891), prepared by Joint Committee on Taxation

Appendix B: Uniform Periodic Payment of Judgments Act

Appendix C: State Periodic Payment of Judgments Act

Appendix C(1): State Periodic Payment Acts

Appendix C(2): Summary of Provisions of State Periodic Payment Acts

Appendix C(3): Text of Selected State Periodic Payment Acts

Appendix C(4): Sample Jury Verdict Forms and Special Interrogatories

Appendix C(4) Form 1: Short Form of Itemized Verdict

Appendix C(4) Form 2: Long Form of Itemized Verdict

Appendix C(4) Form 3: Special Verdict Form (Devised by Florida Legislative Panel)

Appendix C(4) Form 4: Special Verdict Form (Returned by Jury IN National Bank of Commerce v. HCA Health Services of Midwest)

Appendix C(4) Form 5: Special Interrogatories for Use in Applicable Cases

Appendix D: State Structured Settlement Protection Acts (SSPAs)

Appendix D(1): Model SSPA

Appendix D(2): Listing of SSPAs

Appendix E: Structured Settlement-Related Amendments to Revised UCC Article 9

Appendix E(1): Listing of State Amendments

Appendix F: Structured Settlement Forms

Appendix F(1): Qualified Assignment with Annuity Funding

Appendix F(1)(a): Qualified Assignment

Appendix F(1)(a)(i): Notes on Use of Qualified Assignment Agreement

Appendix F(1)(a)(ii): (NSSTA) Model Qualified Assignment Agreement

Appendix F(1)(a)(iii): (NSSTA) Annotated Model Qualified Assignment Agreement

Appendix F(1)(b): Qualified Assignment and Release

Appendix F(1)(b)(i): Notes on Use of Qualified Assignment Agreement and Release Agreement

Appendix F(1)(b)(ii): (NSSTA) Model Qualified Assignment and Release Agreement

Appendix F(1)(b)(iii): (NSSTA) Annotated Model Qualified Assignment and Release Agreement

Appendix F(1)(c): Qualified Assignment, Release and Pledge

Appendix F(1)(c)(i): Notes on Use of Pledge Agreement

Appendix F(1)(d): Supplemental Forms and Materials

Appendix F(1)(d)(i): Commutation Rider and Related Language for Settlement Agreement and Qualified Assignment

Appendix F(2)(a): Settlement Agreement and Release

Appendix F(2)(b): Annuity Contract

Appendix F(2)(c): For Settlement Agreement—Alternative Language for Qualified Assignment

Appendix F(2)(d): Advisory Disclosure

Appendix F(3): Irrevocable Reversionary Inter Vivos Medical Trust

Appendix F(4): Assumption Reinsurance:

Appendix F(4)(a): Notes on Use of Assumption Reinsurance

Appendix G: Individual Special Needs Trust (Intended to Qualify for the Medicaid Exclusion Under 42 U.S.C. § 1396p(d)(4)(A))

Appendix G(1): Notes on Use of (d)(4)(A) Trusts

Appendix G(2): Sample Utah-Specific (d)(4)(A) Trust

Appendix H: Pooled Income Special Needs Trust (Intended to Qualify for the Medicaid Exclusion Under 42 U.S.C. § 1396(d)(4)(C))

Appendix H(1): Notes on Use of (d)(4)(C) Pooled Trusts

Appendix H(3): Utah-Specific (d)(4)(C) Pooled Trust

Appendix H(3)(a): Master Pooled Trust

Appendix H(3)(b): Joinder Agreement for Master Pooled Trust

Appendix H(3)(c): Addendum to Joinder Agreement (Determines Third-Party or Self-Settled Option)

Appendix I: Ethics and Professional Responsibility Standards

Appendix I(1): National Structured Settlement Trade Association Statement of Ethics and Professional Responsibility

Appendix I(2): Society of Settlement Planners Standards of Professional Conduct for Settlement Planners

Appendix J: Transfer of Structured Settlement Payment Rights

Appendix J(1): Transfer Application

Appendix J(2): Transfer Agreement

Appendix J(3): Disclosure Statement

Appendix J(4): Notice to Interested Parties

Appendix J(5): Order Approving Transfer

Appendix K: Life and Health Guaranty Associations

Appendix K(1): Model Act

Appendix K(2): State Positions

Appendix K(3): Legislative History

Appendix K(4): Coverage Limits Under the Enabling Statute for Each U.S. Life & Health Insurance Guaranty Association (“GA”)

Appendix L: Post-Assessment Property and Liability Insurance Guaranty Association

Appendix L(1): Model Act

Appendix L(2): State Positions

Appendix L(3): Legislative History

Appendix L(4): Case Law

Appendix M: Insurers Rehabilitation and Liquidation Model Act

Appendix M(1): Model Act

Appendix M(2): State Positions

Appendix M(3): Legislative History

Appendix N: Risk-Based Capital for Insurers Model Act: State Positions

Appendix O: Workers Compensation

Appendix O(1): Benefits that May be Resolved Under Statute by Lump Sum: State Positions

Appendix O(2): Valuation of Lump Sum Settlements: State Positions

Appendix O(3): Use of Structured Settlements: State Positions

Appendix P: Forms Needed by Plaintiff Attorneys

Appendix P(1): Contingent Fee Agreement

Appendix P(3): Forms for Requesting Medical Records

Appendix P(3)(a): Authorization to Release Health Information (HIPAA Compliant)

Appendix P(3)(b): Authorization to Release Confidential Information (HIPAA Compliant, Including as to Federal Regulations Governing Drug Abuse Patient Records)

Appendix Q: Disclosure Forms

Appendix Q(1): Claimant’s Consultant Sample Structured Settlement Disclosure Statement

Appendix Q(2): Defendant’s Sample Structured Settlement Disclosure Statement

Appendix R: Liability Insurer Structured Settlement Statements

Appendix R(1): Sample Liability Insurer Structured Settlement Mission Statement

Appendix R(2): Sample Liability Insurer Structured Settlement Disclosure Statement

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