(a) As used in this rule,
"defendant" means a party released from a claim
of liability pursuant to an agreement of settlement;
"plaintiff" means a party who, by execution of
a release pursuant to an agreement of settlement, has agreed to forego a claim
of liability against a defendant. The term includes a defendant who asserts a
counterclaim;
"settlement funds" means any form of monetary
exchange to a plaintiff pursuant to an agreement of settlement, but not
including the annuity or future installment portion of a structured
settlement.
(b) The parties may agree in writing to
modify or waive any of the provisions of this rule.
(c) If a plaintiff and a
defendant have entered into an agreement of settlement, the defendant shall
deliver the settlement funds to the attorney for the plaintiff, or to the
plaintiff if unrepresented, within twenty calendar days from receipt of an
executed release.
(d)
If settlement funds are not delivered to the plaintiff within the time required
by subdivision (c), the plaintiff may seek to
(1) invalidate the agreement of
settlement as permitted by law, or
(2) impose sanctions on the defendant as
provided in subdivision (e) of this rule.
(e) A plaintiff seeking to
impose sanctions on the defendant shall file an affidavit with the court
attesting to non-payment. The affidavit shall be executed by the plaintiff's
attorney and be accompanied by
(1) a copy of any document evidencing
the terms of the settlement agreement,
(2) a copy of the executed
release,
(3) a copy
of a receipt reflecting delivery of the executed release more than twenty days
prior to the date of filing of the affidavit,
(4) a certification by the attorney of
the applicable interest rate,
(5) the form of order prescribed by
subdivision (h), and
(6) a certification by the attorney that
the affidavit and accompanying documents have been served on the attorneys for
all interested parties.
(f) Upon receipt of the affidavit and
supporting documentation required by subdivision (e), the defendant shall have
twenty days to file a response.
(g) If the court finds that the
defendant violated subdivision (c) of this rule and that there is no material
dispute as to the terms of the settlement or the terms of the release, the
court shall impose sanctions in the form of interest calculated at the rate
equal to the prime rate as listed in the first edition of the Wall
Street Journal published for each calendar year for which the interest
is awarded, plus one percent, not compounded, running from the twenty-first day
to the date of delivery of the settlement funds, together with reasonable
attorneys' fees incurred in the preparation of the affidavit.
(h) The affidavit shall be
accompanied by an order in substantially the following form:
(Caption)
ORDER
AND NOW,
____________
, upon consideration of the affidavit
of
____________
, attorney for
____________
, and the (Plaintiff) exhibits thereto, and
upon a finding that payment was not made within twenty days of receipt of the
executed release in the above captioned action, it is ORDERED that, in addition
to the settlement funds of $
___
,
___
pay forthwith interest at the rate of
____________
%
(Defendant)
on the aforementioned settlement funds from
the twenty-first day to the date of delivery of the settlement funds, together
with $
___
in attorneys' fees.
____________
Judge
