Can you reopen a case if you were under pressure to accept a low settlement?
(San Diego, CA )
My daughter and I were rear-ended by a large bobtail truck and knocked unconscious, but we came to before the highway patrol and emergency workers came. My daughter and I had an attorney for about 4 years who refused to put a lien on our medical care and my daughter didn't even have compensation until she finally got SSI in 2010 (the accident was December 2003).
The Judges kept our case open until 2010 but it was forced closed by a guardian ad lidem and then the defense attorney filed an ex-parte in 2010 to have the civil judge dismiss the case (without prejudice). All three judges in the Civil Court knew from our medical records we had permanent brain and body/back injuries and the defense only offered $15,000 each, which all 3 judges said was unreasonable.
My daughter has worse brain and back injuries but she wasn't going to treatment as much as I was because she had no medical coverage until 2010. But even so, we were both diagnosed with severe extensive debilitating brain and body injuries and considered both gravely disabled.
Later we were declared mentally incompetent when the second judge ordered a Conservator of the Person to help us on a day to day basis. They were to help us advocate our legal/medical documentation and help us get an attorney. The Court Investigator goofed big time and instead recommended a guardian over our lawsuit which we didn't want or need.
It stayed that way and even though this guardian knew we were gravely cognitively disabled and we had become "pro per". He said he wasn't going to help us and his only goal was to close the case, which he did against our wishes and best interests.
Now, the case was dismissed in Civil Court without prejudice, but the public guardian took the majority of the money. By this Wednesday or sooner I am being threatened to take $4,100 and sign a receipt or the guardian will take it all away and I may get charged an additional $2,000. Everyone knows we both got severely hurt, just short of being in a coma or paralyzed, but I don't have an attorney to sort this all out.
So, if I am under duress, threat, etc. to sign the release form and take the $4,000 check and I have a diagnosis of severe brain injury, is there some law where I could do this and then reopen the case. All of the judges in civil court said the settlement offer was an unreasonable, unfair, unjust amount?
Please respond quickly as the Public Administrator said she's afraid that the public guardian may take the check any day now. I also just got diagnosed in May with Malignant Melanoma, the spreading type, so I am under extreme stress!
I also have a brain MRI taken after the accident that shows prolongation of the entire brain and slipped or protruding disks all down my back, and I got diagnosed as gravely disabled with memory loss, and severe executive functioning and frontal lobe damage.
My daughter has had some seizure/stroke and cognitive injuries and ended up with type one diabetes from medication that was prescribed to her for depression after the accident. She also has brain and back damage. We desperately need some help with this. Thanks in advance for any guidance you can give.
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ANSWER for "Can you reopen a case if you were under pressure to accept a low settlement?":
Anonymous: (San Diego, CA):
The first and most important issue is recognizing the applicable Statute of Limitation period in the State of California. For personal injuries it is 2 years.
If the accident occured in 2003 the lawsuit must have been filed before 2005, the end of the Statute of Lmitations period.
You ask "So, if I am under duress, threat, etc. to sign the release form and take the $4,000 check and I have a diagnosis of severe brain injury, is there some law where I could do this and then reopen the case. All of the judges in civil court said the settlement offer was an unreasonable, unfair, unjust amount?".
If you take the $4,000.00 dollars and sign a release it is highly probable the case will be dismissed with prejudice. Once that happens it is highly improbable you will be able to reopen the case.
You will probably not receive the $400.00 dollars unless you agree to sign a full release. Once you do for all intents and purposes the case will be over.
If you are mentally disabled or have suffered some debilitating brain injury it is probable the money won't be offered to you until such time as those offering the money are convinced you are mentally competent enough to make an informed decision to accept the money, knowing full-well the case will be dismissed thereafter.
If you don't think the amount you are being offered is fair you should consult with a personal injury attorney, or call your original attorney.
Regrettably with the multitude of issues you present it is impossible for us to give you the answers you are seeking.
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.
Best of luck,
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