An offer of final discharge in a personal injury case may seem attractive because an insurer proposes a sum and closure. The legal consequences, however, depend on the wording of the agreement, the known and uncertain heads of damage and the reservations made. Have any offer reviewed carefully before you sign.
In this article we explain in detail what final discharge in personal injury means, what risks are attached to it and why many lawyers and legal advisers fall short on this point. We also show how we intervene when insurers apply pressure.
What is final discharge in personal injury?
Final discharge means that the parties agree that, after payment of a certain amount, there are no further claims. In practice this usually takes place by means of a settlement agreement.
A final-discharge clause often forms part of a settlement agreement. Article 7:900 BW is the definition of the settlement agreement as an agreement by which the parties terminate or prevent uncertainty or a dispute. See article 7:900 BW (Book 7 of the Dutch Civil Code).
A final-discharge clause can stipulate that after payment no further claims may exist. Which claims are precisely covered follows from the wording of the agreement and any reservations.
- which current heads of damage are included in the settlement;
- whether future damage or medical developments have been expressly included;
- which reservations or exceptions the parties have included in the agreement.
Also in the event of new or aggravated complaints, the wording of the agreement and the question which risks the parties have dealt with are important. A final-discharge clause therefore deserves extra attention when recovery or the prognosis is still uncertain.
Why do insurers propose final discharge?
Insurers have a clear interest in final discharge. It prevents future claims and limits financial risks. For that reason we see insurers:
- pushing for closure early in the process;
- applying pressure with terms such as “final offer”;
- emphasising uncertainty about causation;
- threatening lengthy proceedings.
For victims it is often difficult to resist this pressure, especially when complaints have lasted a long time.
Final discharge in personal injury where there is medical uncertainty
A major risk arises when final discharge is proposed while:
- recovery is not yet complete;
- the prognosis is uncertain;
- medical causation is disputed;
- future limitations are not yet established.
At this stage a careful assessment of the proposal, the medical information, the prognosis and possible reservations is important. Whether final discharge is appropriate depends on the specific file and the agreements the parties can reach.
Why other lawyers agree too quickly
We regularly see files in which clients were earlier advised to be “realistic” and to sign for final discharge. The reason is often that the file has become complex or that the insurer continues to delay.
At Arslan Advocaten we do not do that. We do not accept final discharge as long as the damage has not been fully and carefully inventoried.
Final discharge and loss of earning capacity
An important underestimated risk with final discharge in personal injury is loss of earning capacity. This is often a future head of damage that only becomes apparent later.
Those who sign too early regularly overlook this head of damage entirely. You can read more about this on our page loss of earning capacity.
Final discharge and non-pecuniary damage
Non-pecuniary damage (pain and suffering, “smartengeld”) is also often underestimated in final discharge settlements. Insurers focus on the medical end state and downplay psychological consequences.
You can read more about this on our page non-pecuniary damage.
What if you have already signed for final discharge?
If you have already signed, an assessment of the agreement, its formation and the concrete circumstances is necessary. The possibilities to revisit a settlement depend on the file and require an individual legal assessment.
This, however, requires specialised knowledge and litigation experience.
Final discharge in personal injury and insurance law
Final discharge not only affects personal injury law, but also insurance law. This is precisely where our added value lies.
We have extensive experience with proceedings against insurers, including when clients are confronted with unilateral settlement agreements or unreasonable settlements.
Where others give up, we intervene
Many firms see final discharge as the end point. Once an insurer puts a sum on the table, the focus shifts to closure.
We do things differently. We assess not only the amount, but especially:
- the medical substantiation;
- the future risks;
- the client’s legal position;
- the prospects in litigation.
Out-of-court where possible
When a case lends itself to a careful settlement without final discharge, we try that. Think of:
- partial agreements;
- reservations for future damage;
- periodic reassessment;
- open medical trajectories.
Litigate if necessary
If an insurer continues to insist on final discharge without a sound basis, we litigate. Among other measures we deploy:
- partial dispute procedures;
- main proceedings;
- preliminary expert reports;
- procedures on medical causation.
It is precisely our willingness to litigate that often makes movement possible after all.
Final discharge and medical causation
Insurers often link final discharge to doubts about causation. The message then is: “sign or litigate”.
We do not let ourselves be pressured by this framing. You can read more about this on our page medical causation in personal injury.
Outgoing links (insurance context)
In settlement agreements and final discharge, insurance practices and expertise also play a role, as discussed within the sector by the Verbond van Verzekeraars and expert organisations such as the NIVRE.
Will litigation cost me money?
The costs of legal assistance and any proceedings depend on liability, arrangements with the legal expenses insurer, any insurance coverage and the circumstances of the file. Have clear agreements recorded in advance about which costs and recovery options are relevant.
Why choose Arslan Advocaten?
We combine in-depth knowledge of personal injury with extensive experience in insurance law. That combination is essential in final discharge cases.
Where other lawyers and legal advisers allow clients to sign too quickly, we intervene. Out of court where possible. Through the courts if necessary.
Have you received an offer of final discharge or are you unsure what to do? Feel free to contact us for a substantive assessment before you sign.
Also read
- Personal injury in an e-scooter or scooter accident: who is liable and what can you claim?
- Personal injury and household help
- The Letselschade Raad: what does this mean for your personal injury case?
Frequently asked questions
What does final discharge in personal injury mean?
A final-discharge clause can provide that after payment no further claims exist. Which heads of damage, future risks and reservations are included depends on the wording of the settlement agreement.
Why do insurers often propose final discharge?
Insurers want to prevent future claims and limit their financial risk. They often push for closure and use pressure tactics such as ‘final offer’ or threaten lengthy proceedings.
What are the risks of signing for final discharge before the damage is fully established?
When recovery, prognosis or future damage is still uncertain, a settlement can affect heads of damage that are not yet foreseeable. The effect of this depends on the agreement and any reservations.
How do you avoid agreeing to final discharge too quickly?
Read the proposal carefully, identify the known and uncertain heads of damage and check which reservations are included. Seek advice if necessary before you sign.