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When a child is injured in an accident …

When the victim of an accident is a minor, the personal injury case is different in several important ways. It is important to understand the differences so that you make good decisions in choosing an attorney and letting the legal process play out.

 

How is a personal injury case different for minors?

California statute specifically addresses personal injury claims on behalf of minors under the age of 18. These laws protect the child from unscrupulous insurance companies and even unscrupulous family members.

  1. The court appoints a guardian ad litem to make decisions on the child’s behalf, such as authorizing a settlement. One of the parents can serve as the guardian unless there is a conflict of interest (such as a child injured by the parent’s negligence).

  2. For adults, a personal injury lawsuit must be filed within two years of the injury. For minors, the two-year statute of limitations does not start until the child turns 18. However, injury claims can be resolved (and usually are) at any time before that 18th birthday.

  3. Personal injury claims on behalf of a child are subject to the Minors Compromise. This basically means that the court must approve any settlement to ensure that it is in the child’s best interest and that the child’s interests will be protected.

  4. If the settlement is greater than $5,000, the money is typically placed in a trust. This guarantees that the proceeds benefit only the child and cannot be misspent by the parents. The child gains control of the trust funds at age 18 (or other agreed upon age). Prior to age 18, the designated trustee must approve expenditures.

  5. When the victim is a minor, attorney fees and expenses must be approved by the court. At one time, California capped attorney fees at 25 percent for cases involving children. The unintended consequence was that many good attorneys stopped taking such cases. That law has since been repealed.

One more important difference: time

A serious injury -- such as broken bones, nerve damage or brain trauma – raises unique issues for a baby, young child or teenager. Will they heal completely? Will the injury inhibit their growth and development? Will they need future surgeries or special care? Will they be able to resume sports and favorite activities?

A good attorney will take the long view of a personal injury case involving a minor. A quick settlement is tempting when the medical bills are piling up, but it may not be in the child’s or the family’s best interests, especially when the future is still unknown.

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