Filing a Personal Injury Claim For Your Child
If you are under 18 years old you cannot file your own personal injury claim – you need your parent or legal guardian to file a lawsuit in your name. While some states require pre-approval from the court before parents can file a personal injury claim on behalf of their child, Florida does not.
What is unique about a case involving a child is that children aren’t held to the same standard as adult plaintiffs. If an adult was partially to blame, it would be hard to recover. Children cannot be held to the same standard because they are not fully developed human beings.
A child’s negligence is determined based on how a child of that age could reasonably be expected to behave. Children under the age of 6 cannot be found to be even partially negligent.
Court approval is an issue when it comes to settlements in cases involving kids.
In the following situations, a personal injury claim can usually be settled without court approval by the parents or natural guardians of the injured child:
- If the gross settlement amount of a personal injury claim is $15,000.00 or less, and the settlement is reached before a lawsuit has been filed on behalf of the child; and
- If the gross settlement amount of a personal injury claim is in excess of $15,000.00, but the net proceeds to the child are less than $15,000.00, and the settlement is reached before a lawsuit has been filed on behalf of the child.
Court approval is necessary in these situations:
- If a personal injury lawsuit has been filed on behalf of the child regardless of the amount of the gross settlement;
- If a personal injury lawsuit is filed on behalf of the child and if the gross settlement is greater than $15,000.00, but the net recovery to the child is less than $15,000.00, (a minor guardianship will not be required);
If a personal injury lawsuit is filed on behalf of the child and if the gross settlement is greater than $15,000.00, and the net recovery to the child is greater than $15,000.00, a minor guardianship will also be required.
The guardian of the settlement funds is also known as the legal guardian. This person collects the amount of the minor’s net judgment and executes the requisite releases. However, the court keeps control of the allocation and use of the minor’s settlement.
The court usually instructs that the money be put into a conservative account until the minor reaches the age of majority. Until that time, the legal guardian must get approval to use the minor’s funds. The Courts’ decisions will always be based on the prevailing standard – the best interests of the child.
The court may also require a guardian ad litem, an independent lawyer not affiliated with the case, to review the settlement and attest it is in the best interests of the injured child (the prevailing standard in cases where children are involved).
Finally, a parent may also be entitled to legal recourse if the child has suffered a “significant injury resulting in the child’s permanent total disability,” such that the parent has suffered the loss of “companionship, society, love, affection, and solace” from the injured child. This claim of filial consortium is limited, meaning, a parent only can bring this claim, in most instances, when a child has been permanently disabled by the negligence in question.
Parents do have the right to compensation for medical expenses that were paid on the child’s behalf.
Call , Goldman, Babboni, Fernandez & Walsh for all your personal injury questions. Our attorneys believe that more experience equals better results.
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