When it comes to personal injury lawsuits, there are different rules for children compared to adults. How the lawsuit is filed, and how settlements and judgments are handled, will be vastly different from the way such matters are dealt with for adults. If your child has been injured because of another person’s negligence, you need a personal injury attorney who is specifically experienced with cases involving children.
Lawsuits, Settlements, and Judgments
In Virginia, any individual under age 18 is considered to be an infant (minor) for purposes of personal injury law. Minors do not have the legal capacity to bring lawsuits on their own behalf. This means they cannot sue another party or engage in litigation activities without the assistance of an adult, usually the parent or legal guardian. The latter individual is called the child’s “next friend” and will play a critical role in the lawsuit.
The adult next friend generally has two years from the date of injury to file a personal injury lawsuit on behalf of the injured child. This is called the statute of limitations, and is essentially a deadline. If a lawsuit is filed after the expiration of this deadline, it will be dismissed and the injured victim will have no legal recourse. But for injured children in Virginia, the statute of limitations is extended. Since the minor cannot sue prior to age 18, the two-year clock doesn’t start to run until the child reaches that age. That effectively allows the child to sue for the injury up until age 20, although it is strongly recommended that legal action is taken long before then.
Most personal injury cases settle out of court, and this is no less true for child victims. However, the settlement and money are not handled the same way as for adults. The judge in the case has to approve any settlement reached on behalf of the minor. A hearing will be required in which the judge will review the settlement terms and, if deemed acceptable, sign off ton it. The settlement is not valid without this court approval.
A guardian ad litem, who is often (but not necessarily) an attorney, will be appointed to represent the interests of the child. This individual will review the terms of settlement to determine if they are fair to the child. As necessary, the guardian ad litem will recommend changes to the settlement for the judge to consider.
The money, whether from a settlement or court judgment, is usually not paid directly to the victim as with adults. Instead, it is held in an interest-bearing account maintained by the clerk of court until the child turns 18. Depending on the circumstances of the case, and with the approval of the judge, the money may also be held in trust by a fiduciary who can pay out funds solely for the use and benefit of the child.
In some cases, the money may be placed in a structured settlement. With this arrangement, money is paid annually to the child once he or she turns 18. If the funds are less than $25,000, the court may distribute the money immediately to the child even if he or she is still a minor. The judge would have to be convinced that the child will be responsible enough to manage the money.
Contact Koonz McKenney Johnson & DePaolis LLP Today
Child injury cases are especially complex, for these reasons and more. Has your child been hurt? Koonz McKenney Johnson & DePaolis LLP may be able to help. Call us today to schedule a consultation.