See Trimble v. Denver, 697 P.2d 716 (Colo. 1985). The Minnesota Supreme Court has created a five-step test that must be satisfied for a party to claim fraud: (1) there was a false representation by a party of a past or existing material fact susceptible of knowledge; (2) made with knowledge of the falsity of the representation or made as of the partys own knowledge without knowing whether it was true or false; (3) with the intention to induce another to act in reliance thereon; (4) that the representation caused the other party to act in reliance thereon; and (5) that the party suffer[ed] pecuniary damage as a result of the reliance.Hoyt Properties, Inc. v. Prod. An indispensable party is a party whose interest in the litigation is significant enough that, if a judgment is entered in the case, it will injuriously affect the rights of that party. (c) Affirmative Defenses. Res Judicata is an affirmative defense enumerated in Minnesota Rules of Civil Procedure 8.03. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Notably, courts can toll the limitations time period out of principles of equity if appropriate circumstances exist, such as where the defendants own actions have prevented a lawsuit from being timely filed. See Crawford Rehabilitation Services, Inc. v. Weissman, 938 P.2d 540 (Colo. 1997). This rule supersedes the methods of pleading prescribed in U.S.C., Title 19, 508 (Persons making seizures pleading general issue and providing special matter); U.S.C., Title 35, [former] 40d (Providing under general issue, upon notice, that a statement in application for an extended patent is not true), 69 [now 282] (Pleading and proof in actions for infringement) and similar statutes. Unpub. The Restatement has defined the doctrine of laches as [i]n proceedings in equity, a person otherwise entitled to restitution is barred from recovery if he has failed to bring or, having brought has failed to prosecute, a suit for so long a time and under such circumstances that it would be inequitable to permit him now to prosecute the suit. Restatement, First of Restitution 148(1). TheLindquistcourt further narrowed circumstances where a defendant can claim the affirmative defense of laches when a party delayed because of mistake, [b]ut where it is sought to rescind a contract or deed on the ground of mistake, a party is not guilty of laches until he discovers the mistake, or until he is chargeable with knowledge of facts from which, in the exercise of proper diligence, he ought to have discovered it.Id. A statutory or common law privilege to detain for investigation defense is applicable where a defendant was a peace officer, an owner, or employee of a business; the defendant detained the plaintiff for suspected theft but acted in good faith and with probable cause in doing so; and the detention and investigation of the defendant was done in a reasonable manner. See Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011); Colo. Land & Res., Inc. v. Credithrift of Am., Inc., 778 P.2d 320 (Colo. App. The most common use of an affirmative defense is in a defendants Answer to a Complaint. The Supreme Court of Minnesota has defined the doctrine of res judicata as a final judgment on the merits bars a second suit for the same claim by parties or their privies.Kaiser v. N. States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). 20:11, 22:22 (CLE ed. This follows substantially English Rules Under the Judicature Act (The Annual Practice, 1937) O. Fraud. (a) The JAMS Comprehensive Arbitration Rules and Procedures ("Rules") govern binding Arbitrations of disputes or claims that are administered by JAMS and in which the Parties agree to use these Rules or, in the absence of such agreement, any disputed claim or counterclaim that exceeds $250,000, not including interest or . See Caldwell v. Armstrong, 642 P.2d 47 (Colo. 1981). Aug. 1, 1987; Apr. Co. v. Utne, 207 F. Supp. (e) Construing Pleadings. The Restatement defines an improper threat to an unfair contract as (a) the threatened act wouldharm the recipientand would not significantly benefit the party making the threat; or (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased byprior unfair dealingby the party making the threat; or(c) what is threatened is otherwise ause of power for illegitimateends. Restatement, Second of Contracts 176(2). 21:8 (CLE ed. Arbitration and award occurs where an agreement between the parties requires that any disputes between the parties be submitted to arbitration before damages . See Overheiser v. Safeway Stores, Inc., 814 P.2d 12 (Colo. App. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; Co., 219 P.3d 324 (Colo. App. Answer, Affirmative Defenses, and Counterclaim - 6 mars 2023 Memorandum in Support . All the defendant must do to invoke this alternative is participate in the litigation and remain silent regarding arbitration. See Ashton Properties, Ltd. v. Overton, 107 P.3d 1014 (Colo. App. Arbitration and award. Thus, after a final award has been issued, one party usually initiates a court proceeding: the prevailing party to confirm the award and enter judgment; the losing party to vacate, modify or correct the award. 12(b). See CJI-Civ. If initiated by a client, fee arbitration is mandatory for an attorney. 1983). at 807. When considering a motion to compel arbitration, the court will look to (1) whether a valid arbitration agreement exists, and (2) whether the dispute falls within the scope of the arbitration agreement.Amdahl, et al., v. Green Giant Company, d/b/a the Pillsbury Company, 497 N.W.2d 319, 322 (Minn. App. Accord and Satisfaction. The principles of merger and bar operate where a subsequent action or suit is predicated on the same cause of action which has been determined by a judgment, no matter what issues were raised or litigated in the original cause of action. SeeSt. Louis Park Inv. Rule 11 applies by its own terms. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. 2023 Memorandum in Support of Motion to Dismiss, Alternative Motion for More Definite Statement, and Motion to Correct Caption and Alignment of Parties - 6 mars 2023 . The force and application of Rule 11 are not diminished by the deletion. 1 0 obj Elecs. Ins. 1993). Each allegation must be simple, concise, and direct. Lack of personal jurisdiction is typically used in scenarios where the defendant is a non-resident of the state and there is an issue as to whether the defendant has sufficient contacts with the forum state to be brought into court in the forum state. 19, r.r. Notably, impossibility does not mean literal impossibility but, instead, includes circumstances where performance of the contract is actually possible but would result in extreme and unreasonable difficulty, expense, injury, or loss. The language of Rule 8 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. For an affirmative defense: This court lacks jurisdiction due to the presence of a mandatory, binding arbitration clause in the Capital One Bank cardholder agreement. Intervening cause most commonly applies to negligence claims and absolves a defendant of liability if an intervening cause that was not reasonably foreseeable cause the plaintiffs injuries. The key to collateral estoppel is that the issue must be the same and the parties to the prior lawsuit must be the same as the parties to the current lawsuit. endobj General affirmative defenses are affirmative defenses that are not specific to the type of claim asserted but, instead, where applicable they can negate or limit liability for almost any type of claim. TheLunderbergcourt was explicit to not extend the injury by fellow doctrine to injuries of third parties. 2003). All affirmative defenses, including laches, must be stated in a pleading. Minority is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. x{w|T;f7d7ldI$:H4Jh)I " 545W "w^ Laches is a specific defense enumerated in C.R.C.P. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. Minn. R. Civ. 682.13; h. The grounds for modifying an arbitration award under Fla. Stat. P. 1.110(d) are: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds . Minn. R. Civ. Where a contract is required to be in writing but it is not, a breach of contract claim will be barred. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. 2004). 12(b). 1982) (Actions taken in violation of the automatic stay are void and without effect). Minn. Stat. Minn. R. Civ. Accordingly, failure of consideration alleges that the consideration forming the basis of the contract has since become worthless, ceased to exist, or otherwise failed to materialize. Former Rule 8(b) required a pleader denying part of an averment to specify so much of it as is true and material and * * * deny only the remainder. [A]nd material is deleted to avoid the implication that it is proper to deny something that the pleader believes to be true but not material. Arbitration is a form of Alternative Dispute Resolution in which the parties work out the disputed issue without going to court. Arbitration and Award. accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy Singelman v. St. Francis Med. 8(c) indicates any avoidance or affirmative defense must be affirmatively plead, what qualifies as an affirmative defense in civil cases is broader than the strict interpretation of what qualifies as an affirmative defense in criminal cases. /]Yo)9D=v0-}j7;]0epoA{Yh%/\di6?/\p6h[cKi#L]Z=5~n$tadCI!NhBm$z[CK4KD:FFZ(dlj rl}UL %f~pN2aT*}{ik;h\M^#%!;H=Xok>PE[ T{uo%jzb8=_zdw6j8uq,{c8!SQL{Gm0d0mK4e _1H-?^}_(wH}(N6$ei]&ch0FM%v6Z)%d8 :2 T\9T!M={_^AU*3- [~Gt,(@(t,;zV?$?Z1{iINkv]:z}C2]$-jROsgq)/vPhW>CcG):(J1c~kuLjl9gSwu3dNKJ4O(F'r-Pyj'm/'>#F\wnr)(tgM$^o3u8)70J Bc+[1fE@GB\'o !k/p`Iv/ztgI8+W5xWnT>N*Du? J>JU5j(A`10p \(OzMUPN:KM#TM6 `0KfhuN__SQ_8CXyF(Rr7'4E* 4Y. Examples of affirmative defenses include: Contributory negligence . However, the Minnesota Court of Appeals inBankCherokeelimited when a party can plead fraud even when the other party was in fact fraudulent: one partys misrepresentation as to the nature of a proposed contract does not amount to fraud . Note to Subdivision (f). P. 8.03. 1991). For example, if consent was obtained under circumstances of fraud or duress, or while the plaintiff was intoxicated, any consent given will be deemed ineffective. The Minnesota Supreme Court outlined collateral estoppel as once an issue is determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.Kaiser v. N. States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). Insufficiency of service of process is a specific defense enumerated under C.R.C.P. See People v. Foos, 2016 COA 139 (Colo. App. What are Some Examples of Affirmative Defenses that the Defendant can assert? 521, 524 (D. Minn. 1962). See also C.R.C.P. P. 8.03. LEXIS 171 (Minn. App. (A) California law entitles a client to arbitration of a dispute regarding an attorney's fees for legal services. Res judicata is a specific defense enumerated in C.R.C.P. Among them is the newsworthy or of public concern privilege where, if information is important enough to the public that it should be disclosed, its disclosure is immune from an invasion of privacy claim. Affirmative Defense: Arbitration and Award Arbitration is the process where a third party looks at the evidence shown by the parties and makes a decision. That is, an affirmative defense is not assumed to be valid thereby requiring a plaintiff to disprove it; instead, the burden of proof rests with the defendant. Examples of affirmative defenses in Colorado specific to tort and personal injury claims include: Absolute privilege in relation to a defamation claim is an affirmative defense specific to defamation claims and, where applicable, should be alleged in an answer in order to be preserved. 1988); Prutch Bros. TV v. Crow Watson No. Notably, cancellation by agreement is not a valid defense where one party has already performed under the contract. 393 F.Supp.2d at 833-836. A plaintiffs use of a defective product or product not in compliance with its warranty negates a product liability claim where the plaintiff had knowledge of the product defect or warranty noncompliance, proceeded to voluntarily and unreasonably use the product, and the use of the product resulted in injuries to the plaintiff. See Note to Rule 1, supra. Posted November 12, 2020. Collateral estoppel, commonly referred to as issue preclusion, is a very different doctrine from promissory estoppel. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Notes of Advisory Committee on Rules1987 Amendment. & Entmt Corp. West St. Paul Federation of Teachers v. Independent School District No. Affirmative defenseArbitration and award [Fed. Ty doesn't think the third party awarded large enough money damages and files a lawsuit against Danny. Unclean hands is an affirmative defense specific to equitable claims and defenses and, where applicable, should be alleged in an answer in order to be preserved. That is, the parties were in agreement about entering into a contract, however, they were both mistaken about material facts pertaining to the contract. P. 8.03. When any type of legal action is being taken against you - whether it be that you are being formally sued (i.e. assert an accord and satisfaction affirmative defense. Additionally, asserting a defense of failure to state a claim in an answer or responsive pleading is sufficient to preserve the specific defense of failure to join an indispensable party. Once all avenues for relief are exhausted within an administrative agency, the plaintiff typically may then file a lawsuit and seek relief from a court of law. 2. Example: A company is being sued by a former employee for wrongful termination.The company responds with an arbitration and award defense, stating that the employee had signed an agreement to resolve any . The Restatement defines an improper threat to a fair contract as if (a) what is threatened is acrimeor atort, or the threat itself would be a crime or a tort if it resulted in obtaining property; or (b) what is threatened is acriminal prosecution; or (c) what is threatened is theuse ofcivil processand the threat is made in bad faith; or the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient. Restatement, Second of Contracts 176(1). All affirmative defenses, including assumption of risk, must be stated in a pleading. Under Colorado law, affirmative defenses must be asserted during the lawsuit or otherwise they will be deemed waived. P. 8.03. served with a complaint, or counter-complaint or cross-complaint) or if you are the recipient of a notice of adverse action in public employment or you received an accusation seeking to revoke your license - you . In denying the high schools affirmative defense of assumption of risk, the court held the high school was not free from liability because of enhancement of risk, negligent maintenance of a facility, or negligent supervision of a sporting activity.Id. All affirmative defenses, including arbitration and award, must be stated in a pleading. The principle is applicable to a variety of different claims, examples of which include a landlords obligation to mitigate damages when a tenant has breached the contract, an injured partys duty to mitigate pain and suffering by seeking medical attention in personal injury cases, setoffs to damages attributable from other settlements or payments under insurance policies, or payments received from a collateral source that reduce the amount of recoverable damages. From a practical perspective, the injury by fellow servant affirmative defense is rarely used today as workers compensation laws have effectively nullified the rule. (1) In General. (1933), 10472, 10491. (3) Inconsistent Claims or Defenses. In Florida, under Rule 1.110 (d) of the Florida Rules of Civil Procedure, the following affirmative defenses to breach of contact must be raised when pleading to a preceding pleading: accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, payment release . These best practices can help your team write more successful arbitration contentions than . New material was added to provide a reminder of the means to determine whether a debt was in fact discharged. Minn. R. Civ. See Welsch v. Smith, 113 P.3d 1284 (Colo. App. An arbitral award is analogous to a judgment in a court of law. Eric Storms is the Chief Deputy. See Colorado Jury Instruction-Civil 30:19 (CLE ed. Inducing a breach by words or conduct excuses a defendants obligation to perform under a contract where the plaintiffs words or conduct caused the defendant to breach the contract and the plaintiff knew her actions would cause or were likely to cause the breach. SeeBorg-Warner Acceptance Corp. v. Hall,685 F.2d 1306, 1308 (11th Cir. 2010). RULE 8. 2009). Restatement, Second of Contracts 167. Additionally, failure to state a claim for relief may be alleged at any stage in the proceeding prior to the entry of judgment. State by Head v. AAMCO Automatic Transmissions, Inc. Minneapolis Business Lawyer - Business Attorneys in Minneapolis, Antitrust and Trade Actions - Minneapolis, MN, Breach of Fiduciary Duty - Minneapolis Business Law, Dissolutions and Shareholder and Partnership Disputes, Civil RICO (Racketeer Influenced and Corrupt Organization) Actions, Fraud, Fraudulent Nondisclosure, Negligent Misrepresentation, Contract Law and Contract Disputes in Minnesota, Good Faith and Fair Dealing - Minnesota Business Law, Franchise and Distributor Disputes Under Minnesota Law, Tortious Interference With Contracts or Prospective Business Relationships, Unjust Enrichment, Quasi Contract, and/or Quantum Meruit, Minnesota law on duty of loyalty, tortious interference with client, conspiracy, misappropriation of trade secret, unjust enrichment and unfair competition. Commonly, affirmative defense asserted at the time a defendant files an answer to claims alleged him in the lawsuit. 30, 2007, eff. Under Colorado law, the time period required for bringing a claim varies between 1 and 6 years depending on the type of claim being asserted. A denial must fairly respond to the substance of the allegation. Arbitration, a form of alternative dispute resolution (ADR), is a process where two parties make their arguments to an arbitrator, who is a neutral third party, instead of litigating the matter in court.The arbitrator, typically a lawyer or retired judge, makes a decision following the arbitration hearing. Statute of frauds is a specific affirmative defense enumerated in C.R.C.P. 21:10, 21:11 (CLE ed. Res. 55.08. 2016). Notably, the amount of force used by the defendant must be reasonable in relation to the perceived threat. Compare 2 Ind.Stat.Ann. Commn, 952 P.2d 359 (Colo. 1998). (1) In General. Co. v. R.L. 12(h)(2). Minnesota courts address promissory estoppel frequently. In general, a party asserting an affirmative defense has the burden of proving it. The issue whether a claim was excepted from discharge may be determined either in the court that entered the discharge or in most instances in another court with jurisdiction over the creditors claim. Failure to state a claim for relief assets that even if the facts as pleaded are true, the facts would not support the claim for relief alleged against the defendant. in writing to submit their fee disputes to mandatory fee arbitration. 1975). This rule is, in part, [former] Equity Rule 30 (AnswerContentsCounterclaim), with the matter on denials largely from the Connecticut practice. All affirmative defenses, including failure of consideration, must be stated in a pleading. The most common use of an affirmative defense is in a defendants Answer to a Complaint. 13-21-111.6; Ochoa v. Vered, 212 P.3d 963 (Colo. App. All of the abovementioned elements will prove the aggrieved party in factdidhave a reasonable alternative. Fraud in the factum is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. The case will proceed in court and the arbitration agreement will have been waived. On the other hand, the principle of collateral estoppel operates as to matters which were actually litigated and determined by, and essential to, a previous judgment, irrespective of whether the subsequent action is predicated upon the same or a different cause of action. Enumerated Affirmative Defenses. When a defendant pleads the affirmative defense of failure of consideration, the burden is on the defendant to prove the contract was lacking consideration. See Belle Bonfils Memorial Blood Bank v. Hansen, 665 P.2d 118 (Colo. 1983). Release is an affirmative defense enumerated in Minnesota Rules of Civil Procedure 8.03. It is essential to bear this distinction in mind in determining the issue in this case.Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978). A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. The Minnesota Supreme Court defined assumption of risk as the defendant owes alimitedduty of care to the plaintiff with respect to the risk incident to their relationship.Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974). Where these circumstances apply and the defendant has disaffirmed the contract, a minority defense will bar a breach of contract claim. The most complete list of affirmative defenses available in one place: currently 230 separate affirmative defenses. The change here is consistent with the broad purposes of unification. TheOlsoncourt explained primary assumption of risk is available only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.Id. The Supreme Court of Minnesota compared a release to a contract, stating [a]s with any contract, a release requires consideration, voluntariness, and contractual capacity.Karnes v. Quality Pork Processors, 532 N.W.2d 560, 562 (Minn. 1995). Merger is now successfully accomplished. The Supreme Court of Minnesota has defined the injury by fellow servant (injury by fellow) defense as a rule that absolves the employer from liability to one in his employ for injuries incurred or suffered solely as the result of the negligence, carelessness, or misconduct of others who are in the service of the employer and who are engaged in the same common or general employment as the injured employee.Lunderberg v. Bierman, 241 Minn. 349, 356, (1954). Minn. R. Civ. In pleading to a preceding pleading, a party shall set forth affirmatively (1) accord and satisfaction, (2) arbitration and award, (3) assumption of risk, (4) contributory negligence, (5) discharge in bankruptcy, (6) duress, (7) estoppel, (8) failure of consideration, (9) fraud, (10) illegality, (11) injury by fellow servant, (12) laches, (13) license, (14) payment, (15) release, (16) res judicata, (17) statute of frauds, (18) statute of limitations, (19) waiver, and (20) any other matter constituting an avoidance or affirmative defense. In short, one stands for claim preclusion, the other for issue preclusion. 13, 18; and to the practice in the States. A defense based on facts other than those that support the plaintiff's or government's claim. The Supreme Court of Minnesota stated the injury by fellow servant doctrine in an 1880 opinion, holding as a general rule the master is not liable to one servant for an injury caused by the negligence of another servant in the same common employment.Brown v. Winona & St. P.R. 2016). Accord and satisfaction occurs where the plaintiff and defendant have entered into a contract and then subsequently enter into a later contract that cancels or changes the remaining rights and duties under the original contract. Ctr., 777 N.W.2d 540, 543 (Minn. App. Examples of circumstances where an absolute privilege applies include judges making statements in their judicial capacity; statements made by witnesses, attorneys, or parties in a judicial proceeding; legislators or other people giving testimony in relation to a legislative manner; and certain executive and administrative officers giving statements in relation to the official duties. It can be asserted in an answer as well by filing a motion to dismiss before filing an answer. Safety, 333 N.W.2d 619, 621 (Minn. 1983). An advice of attorney defense applies where a defendant caused a criminal case to be brought against the plaintiff but, in doing so, the defendant made a full, fair, and honest disclosure to a prosecuting attorney concerning the facts relating to the criminal case or to another attorney who advised the defendant there were reasonable grounds to believe the plaintiff had committed a crime. 3. Consent occurs where the plaintiff, by words or conduct, agrees to the actions, contact, or threatened contact by the defendant. 19, r. 15 and N.Y.C.P.A. The fact that the aggrieved party had knowledge of the facts that he now alleges caused him harm, had advice from an attorney, and time to reflect on the terms of the contract will cause Minnesota courts to reject a claim of duress. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. 2 Fee arbitration is voluntary for a client unless the parties have agreed . See also C.R.C.P. A provision of like import is of frequent occurrence in the codes. 1987). For the second sentence see [former] Equity Rule 31 (ReplyWhen RequiredWhen Cause at Issue). Fraud in the inducement is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. 2017 J.D. The validity of the electronic signatures under Fla. Stat. Res judicata, also known as claim preclusion, is defined as [a]n affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit.Blacks Law Dictionary, 1425 (9th Ed. However, you should check the list of suggested affirmative defenses set forth in FRCP 8(c)(1), which reads: (c) Affirmative Defenses. RULE 4:5-4 - Affirmative Defenses; Misdesignation of Defense and Counterclaim. An affirmative defense of negligence per se relieves a defendant of liability where the plaintiff violated a regulation pertaining to the defendants conduct and that violation caused the plaintiffs injuries. . 113, . See C.R.S. 15. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; A defendant who has initiated a bankruptcy proceeding can successfully claim discharge in bankruptcy as an affirmative defense to any breach of contract lawsuit. (1937) 242, with surprise omitted in this rule. Assumption of the risk is typically applied to negligence claims where allegations are made that a party failed to do an act which a reasonably careful person would otherwise have done and that failure resulted in injury to the plaintiff. An arbitral award can be of a non-monetary nature where the entire claimant's claims fail and no money needs to be paid . (emphasisadded). Changes Made After Publication and Comment. View on Westlaw or start a FREE TRIAL today, 1A:271. In determining the validity of a release, Minnesota courts consider the following factors: (a) The length of period between the injury and the settlement; (b) the amount of time elapsed between the settlement and the attempt to avoid the settlement; (c) the presence or absence of independent medical advice of plaintiffs own choice before and at the time of the settlement; (d) the presence or absence of legal counsel of plaintiffs own choice before and at the time of the settlement; (e) the language of the release itself; (f) the adequacy of consideration; (g) the competence of the releasor; and (h) whether the injury complained of by the releasor was an unknown injury at the time of the signing of the release or merely a consequence flowing from a known injury.Id.