A recent Second Department decision in Avissato v McDaniel reminds defense practitioners the best time to settle a case may in fact be after an apparent victory.  The underlying fact pattern is a common one:  plaintiff was stopped at a red light when defendant driver rear-ended plaintiff’s vehicle.  Unsurprisingly, plaintiff prevailed on a summary judgment as to liability and the case proceeded to a trial as to damages.  2019 NY Slip Op 00084 (2d Dep’t. 2019).

The jury found the accident was the proximate cause of plaintiff’s injuries and resulted in a permanent consequential limitation of use of a body organ or member as a result of the accident—in other words, they found plaintiff’s injuries qualified as a serious injury under the Insurance Law, and that plaintiff would have symptoms moving forward into the future.

However, the jury award was for $12,500 for past pain and suffering and $12,500 for past medical expenses with no award for future damages.  Although plaintiff’s motion to set aside the verdict as against the weight of the evidence was initially denied, on appeal, the Second Department reversed and remanded for a new trial on the issues of damages for past and future pain and suffering.  The Second Department reasoned the verdict was inconsistent in awarding no damages for future pain, given their conclusion plaintiff had sustained a permanent injury, and that the award for past damages was too low.

We do not know the details of any settlement negotiations.  However, one suspects defendants were pleased with the jury verdict, despite the obvious inconsistencies it contained.  Instead of reaching an economical settlement at that point with the leverage of the verdict in their pocket, defendants are now faced with the costs of a second trial and opposing plaintiff’s successful appeal.  Even in a moment of victory, defendants should evaluate whether a settlement is the best option anyway.

Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions.