March 1, 2017
When a child is injured in an automobile accident the child is allowed to claim damages for his or her injuries, as a skilled car accident lawyer Milwaukee WI relies on might explain. In most cases the issue is resolved by negotiations with the responsible party’s insurance carrier and a settlement is reached that covers the child’s injuries and associated expenses. If the settlement amount offered is felt to be inadequate in relation to the child’s damages, it may be necessary to file a personal injury lawsuit on behalf of the injured child.
In most states a parent can sue on behalf of the injured minor, but this will usually require some degree of supervision by the court that will hear the lawsuit. The purpose of this supervision is to insure that the injured minor’s best interests are protected and that any damages awarded will be used to directly benefit the child. As an example, the court may require that any settlement awarded be placed in trust that will require the court’s approval for any disbursements from the trust over a certain amount.
Filing a Lawsuit On Behalf of the Minor Child
If it becomes necessary to file a personal injury lawsuit on behalf of minor child, the first issue that must be addressed is that of who will file the suit on the child’s behalf. Depending on the laws of the state where the lawsuit will be filed, the options available are:
- A parent can file on behalf of a minor child
- An adoptive parent can file on behalf of a legally adopted child
- A court-approved guardian ad litem can file on behalf of a child
In addition to the above, and again depending on state law regarding statutes of limitations and the tolling of a civil case, it may be possible for a child to wait until he or she reaches the age of 18 and then sue on their own. This is usually impracticable unless the accident occurred a few months prior to the child’s 18th birthday. It is also possible, but unlikely, that a minor could petition the court for emancipation and then proceed with a lawsuit on their own behalf.
Accepting a Settlement
Regardless of who files the lawsuit on behalf of a minor, the courts of most states are required to approve any out-of-court settlement and to take steps to insure that the settlement is used solely for the benefit of the injured child. In most cases, a court will order that a settlement be held in a trust until the child is no longer a minor or reaches a specified age. However, if the child’s injuries were such that the child will be incapable of taking responsibility for his or her affairs even after reaching the age of 18, the court may be asked to approve a permanent guardian who will manage the trust until such time the injured child is deemed capable of self-management or until death.
In summary, since a minor is unable to legally enter into a binding contract it is necessary that an adult represent a child who is seeking damages following an automobile accident. In most cases the minor is represented by a parent who files on behalf of his or her natural or adopted child, although it is sometimes necessary that a court-approved guardian be appointed to handle such matters. In any case, the courts will usually require the establishment of a trust to receive any settlement awarded until such time the minor reaches adulthood.
Thanks to our friends and contributors from Hickey & Turim SC for their insight into auto accident and personal injury cases.