Settling a Case with a Minor
In cases involving a minor child that is injured, resolving a case can become much more complicated. In many car accident injury cases, a lawsuit is never filed and the case is settled without the need for the sides to spend a great deal of time and money getting a case ready for trial. However, when the case involves a minor child any settlement agreement must be approved by the court. This is in order to protect the interests of minor children from any conflicts of interests.
In these cases, the parties will file a “friendly suit” in order to have a Guardian Ad Litem appointed by the trial judge. A friendly suit is a lawsuit filed for the purpose of obtaining an agreed judgment by the court. An agreed judgment is one that takes the form of a court order, but it is agreed upon by all parties to the lawsuit. After the lawsuit is filed the parties will then file a Motion to Appoint Guardian Ad Litem. Upon an motion by the parties, the court will appoint a certified Guardian Ad Litem to represent the minors interest.
A Guardian Ad Litem is actually an officer of the court and not the child’s attorney. They are appointed by the court and charged with the duty of informing the court as to the minor’s best interest. Guardian Ad Litems can best be characterized as advisors to the trial judge and are allowed to talk to the trial judge without other attorneys or parties present. Often the Guardian Ad Litem who is appointed is someone that the trial judge respects and trusts to represent the minor’s best interest. It is customary for the Guardian Ad Litem to charge an hourly fee for their services and typically, thier fees are paid by the Defendant (or their insurance company) and do not in any way affect the value of the settlement.
During the settlement of a lawsuit, the Guardian Ad Litem will meet with the child, be present during settlement negotiations and review the settlement to ensure that the child’s best interest are represented in the final product. When the final settlement of the case is presented to the court, the trial judge will ask the Guardian if they approve or disapprove of the settlement. If the settlement agreement appears to be in the best interest of the minor and everything else is in order the court will approve the settlement and discharge the Guardian Ad Litem.
Guardian Ad Litems are a valuable addition during settlement negotiations because of the unique interest they represent. Unlike attorneys who represent the desires of the parties involved, Guardian Ad Litems are required to stay objective and look toward the long term interest of the minor. The effect is to balance the interest of the parties and often gives depth to otherwise shortsighted conflict resolution.
The final step in obtaining approval of the settlement from the court involves having a hearing before the Judge. This is sometimes referred to a Minor Settlement Conference. A Minor Settlement Conference is a formal hearing which is conducted on the record, with a court reporter present. It is the responsibility of the attorneys to question the Minor’s parents or legal guardian in order to “prove up” the settlement. The Guardian Ad Litem will also question the minor’s parents or guardians. For this reason, it is critical that the child’s legal guardians to have an attorney present and they should not attempt to perform such a hearing on their own.
Lastly, in most cases, the Court will not give the minor’s parents or legal guardians money from the settlement. Instead, the Court will usually direct that the funds are placed into the registry of the court or in an investment annuity that the minor cannot access until they reach the age of 18 years old. This is because Texas law states that parents and guardians are financially responsible for their minors and minors are not financially responsible for themselves. So, even if the parent contends that 100% of the settlement will be spent on the child, the Court will usually refuse to let the parent have any of the money because the money is for the child, and they are financially responsible, not the child.
In larger cases, the attorneys and the court will arrange for the settlement funds to be deposited into an annuity that will pay the child over a number of years in a variety of payments, beginning at age 18. This is referred to as a structured settlement. The careful attorney will closely examine a structured settlement in order to ensure that the investment vehicle is safe and reasonable. Many insurance companies settling cases want to handle the structured settlement because they can make money from it. While this is not necessarily a bad situation since someone will have to underwrite the structured settlement, careful attention must be paid to what exactly the investment vehicle is that makes up the annuity. Familiarization with rating systems is a must. Again, these issues may require the assistance of an experienced personal injury lawyer, and we recommend that non-lawyers should consult with a lawyer before an agreement is made regarding a structured settlement.
More Auto Accident Information
- Property Damage in Auto Accidents
- Admissibility of Seat Belt Evidence
- The Rules of the Road
- Settling a Case with a Minor
- How Accident Claims Work
- Insurance Claims Dos & Don'ts
- Auto Accident Injuries & Compensation
- Dealing with Insurance Carriers
- Do you need an attorney after a car accident?
- Mercury Insurance Claims
- State Farm Insurance Claims
- Allstate Insurance Claims
- Farmers Insurance Claims
- Geico Insurance Claims