Representing Children: What's Best for the Child?

Janssen Malloy LLP has extensive experience in representing children who have been injured through the careless conduct of others. There are special considerations unique to representing children (minors under the age of 18, or legal majority).   First of all, the Statute of Limitations (S/L) for a minor is different than that for an adult. Generally, the S/L for an adult in a personal injury matter is two (2) years from the date of injury, which means that a lawsuit against responsible defendants must be filed within two years from the date of the injury. For minors, that S/L is “tolled” (suspended) during the time the minor is under the age of legal majority (their 18th birthday). This means minors have longer to file an action (lawsuit) for personal injury. Further, because the child is not yet an adult, a responsible adult must be appointed by the court to act on behalf of the minor.  This individual is designated as the “Guardian ad Litem” (GAL). The GAL is usually one of the child’s parents (or a grandparent). In order to properly file a personal injury lawsuit on behalf of a minor, an appropriate GAL must be appointed by the court, and then the complaint must be filed in Superior Court.

A settlement of a minor’s case typically involves court approval of the settlement to insure that the settlement is on the best interests of the minor. The trial court is looking over the shoulder of both the GAL and the lawyer for the minor. The court monitors the result of the case, advising the GAL that the funds belong to and are for the benefit of the child, not the parents.

A recent policy limits recovery obtained by partner Michael Crowley of Janssen Malloy LLP on behalf of a minor plaintiff illustrates that court approval process. Mr. Crowley represented a teenaged client who was injured on school premises, sustaining a serious fracture requiring air ambulance transport for orthopedic surgery to repair the injury. After intensive investigation uncovered homeowners’ insurance coverage for the occurrence, Janssen Malloy LLP proceeded with a petition to the Superior Court to have the child’s mother appointed the GAL for the litigation, and filed the needed complaint. After providing a settlement demand proving liability and confirming the extent of the boy’s injuries and need for surgical intervention, the insurance carrier agreed to pay the available policy limits.

Janssen Malloy LLP then filed the necessary court documents to obtain court approval of the settlement, which included a structured settlement (an annuity investment providing guaranteed payments at specified years to assist with college tuition, etc.) Such a structured settlement provision allowed that annuity to grow tax-free for the benefit of the minor. Such a procedure also protects the funds, ensuring that any payouts are only after the child reaches the age of 18.  Structured settlement provisions also allow the GAL to plan ahead, to protect a not yet financially mature teenager from unwisely spending all of a settlement all at once.

Minors’ cases present unique challenges, and require experienced counsel to navigate successfully through the court system. The attorneys at Janssen Malloy LLP have handled many such cases, and stand ready to assist when the need arises.

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