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the easiest way to prove a payor’s awareness. However, if a
payor’s awareness can be shown by other means, then the lack of a
formal complaint does not bar either the existence of that claim
or its ability to be the basis of a settlement. Id.
Petitioner argues that PayLess and its attorneys did know
about her claim for the intentional and/or negligent infliction
of emotional distress. Petitioner claims that she told the class
action attorneys about her physical injury and sickness and that
this information was conveyed to PayLess’ attorneys during the
settlement negotiations.
Petitioner argues that language in the settlement documents,
such as the release, reflects the attorneys’ knowledge of her
injuries. In that regard, the release (a) acknowledges that the
“Lawsuit * * * [was] not fully plead” and (b) discharges PayLess
of any other claims “including, but not limited to, claims for
personal injuries, intentional infliction of emotional distress,
[and] negligent infliction of emotional distress.” Petitioner
argues that because the discharge of the tort claims follows the
acknowledgment that the lawsuit was not fully pleaded, it proves
that PayLess and its attorneys knew and were admitting that the
tort claims existed and could still be pleaded.
We acknowledge that this statement may indicate a
generalized knowledge of PayLess’ attorneys that injuries existed
within a broad class of claimants. However, from looking at the
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