Major Differences in Handling Minors’ Claims

Navigating the tricky legal landscape when adolescents suffer serious injuries.

By Howard L. Huntington , Karen Swafford

Handling a claim that arises from a serious injury to a minor requires a distinct approach. From altered timelines to unique negligence standards to special settlement considerations, following are some essential issues to consider when navigating these types of claims.

Statute of Limitations

The ordinary statute of limitations will not apply because minors do not have the capacity to sue in their own right. Generally, if persons are under the age of 18 at the time a cause of action arises, statutes of limitations for minors provide that they may bring action within a certain period after attaining the age of 18. Some states have exceptions that may shorten or lengthen the time during which claims may be filed, such as claims concerning sexual abuse or medical malpractice.

Even though minors’ claims have longer (and sometimes significantly longer) deadlines than those for adults, there are practical incentives for these claims to be pursued with haste. For example, aside from the purely financial motivations of the families and attorneys to receive compensation quickly, younger plaintiffs likely will get more sympathy from juries than older plaintiffs, and evidence becomes more difficult to secure the longer claims age.

Pre-Suit Handling

Parents are understandably emotional when it comes to injuries to their children. Insurance professionals should maintain an empathetic tone during all communications with the child’s parents. Death and severe injuries to minors can trigger unfavorable publicity for the insured. Therefore, retaining counsel pre-suit can be useful for dealing with media. Additionally, pre-suit attorney involvement eases preservation of evidence and protection of work product. The fact that there is the potential for a prolonged pre-suit period underscores the need to conduct a prompt investigation and preserve evidence before it disappears over time.

Capacity to Sue

Because minors do not have the capacity to sue on their own behalf, a civil lawsuit for a minor must be brought by and in the name of a parent, guardian ad litem, or next friend on behalf of the minor. The representative owes the minor a fiduciary duty. A custodial parent generally is presumed to have the right to prosecute litigation on the minor’s behalf. The defense team should be on guard for any basis there may be to disqualify the representative. If a natural parent has temporarily lost custody, for example, there may be a basis to argue for staying discovery.

Disqualification of the named representative or a related stay may have a disruptive effect on the plaintiff’s attorney’s willingness or ability to remain of record.

Comparative Negligence

Unlike adult plaintiffs, it is not always possible to blame minor plaintiffs for their own injuries. Many states follow a three-tiered analysis when determining negligence of a child defendant, which also applies to comparative negligence of a child plaintiff. Generally, children under the age of seven are presumed to be incapable of exercising the standard of care of an adult, whereas children over the age of 14 are chargeable with exercising the standard of care of an adult, absent special circumstances.

When a child is between the ages of seven and 14, many jurisdictions follow Restatement (Second) of Torts § 283A (1965), and the question becomes “whether the child exercised the care under the circumstances of a child of like age, knowledge, judgment, and experience.” Put another way, should the child have known better than to do what they did, given their abilities?

In cases involving children between the ages of seven and 14 where the defendant seeks to pursue a defense of contributory negligence based on the child’s conduct, it is helpful to gather evidence to maximize the child’s apparent intelligence. If school records do not support this, then it can be a good strategy to elicit testimony praising the child’s exceptional intelligence. Of course, such evidence could work against the defense in some cases, such as those involving traumatic brain injuries.

Depending on the facts of the case, there may be grounds for a contribution claim against a parent for negligent supervision. Insurance professionals should confer with defense counsel about the pros and cons of this strategy in the context of the circumstances of the case. Sometimes, the strategy of directly blaming a parent for their child’s injuries can be counterproductive. The deadline for filing a counterclaim or third-party complaint against the parent should be discussed and docketed from the outset.

Competence as a Witness

Competency of a witness is determined as of the time the witness is offered at trial. To be competent to testify, a child must have a capacity for recollection; an ability to understand questions and frame intelligent answers; and an appreciation for speaking the truth. Minors over the age of 14 typically are presumed to be competent to testify. When a child under the age of 14 is called as a witness, the court should first hold a preliminary inquiry into competency by examining the child’s intelligence, understanding, and moral sense. However, an inquiry may be deemed unnecessary when a minor’s deposition demonstrates that they satisfactorily answered questions that typically would have been asked during the course of a competency hearing.

Sensitive Witnesses

It goes without saying that minor plaintiffs must be treated delicately. Defense counsel may consider video recording the deposition to minimize any subsequent suggestions that the child somehow was treated unfairly or was bullied into giving untrue or inaccurate answers. The named representative ordinarily will be allowed to personally attend the minor’s deposition in their capacity as a party. Of course, if there appears to be any coaching or other undue interference, then the questioner should make a clear record of it and consider postponing or terminating the proceeding to seek a ruling on the necessity of the named representative’s attendance. Video recording of the deposition can deter such coaching and also can be used to support a motion to bar the parent from attending the continued deposition.

By the nature of settings in which minors are commonly injured, it is not uncommon for minor siblings, friends, or passersby to be witnesses to the accident. Defense counsel should check jurisdiction rules for subpoenaing minors and also should consider inviting the parents of youthful subpoena witnesses to attend depositions or interviews.

Sensitive Records and Death

Mental health, counseling, juvenile court, and school records may provide a wealth of evidence for the defense. For example, in traumatic brain injury cases, such records can establish a pre-injury baseline of function. However, some states have special statutes governing the privacy of certain records pertaining to minors. Defense counsel should ascertain the existence of and carefully follow any special statutes on the proper procedures for subpoenaing or sharing these records. Some states even require court permission prior to issuance of the subpoena for certain records. Defense counsel should consider filing a motion for a protective order specifically permitting them to show the sensitive records to witnesses in depositions, experts, insureds, and insurers. Due to the possibility of identity theft, some states do not even permit children’s’ full names to appear in court records, requiring instead that only initials be used.

Some states have a wrongful death statute that specifically applies to the death of minor children. Some of those statutes explicitly bar recovery for any parent who has abandoned the child while the child was alive. They may contain a measuring period for calculating damages for loss of a child’s services and expenses. Some states’ child wrongful death statutes also contain a cap on punitive damages.

Settlement Considerations

The youthfulness of a plaintiff is a factor to consider when evaluating verdict potential. There is a clear danger in these cases that the facts will inflame the jury. Injuries that have permanent consequences with regard to a child’s functional capabilities, cosmetic appearance, or career prospects can be especially heart-wrenching. There is no greater sympathetic witness than a child.

When exploring settlement, it is a good idea to recommend a structured settlement with an annuity. This arrangement provides security for the minor and tax advantages over government treasury bonds. In anticipation of this option, defense counsel should consider inviting a certified structured settlement consultant to attend settlement discussions.

It is essential to comply with the jurisdiction’s law regarding approval of settlements on behalf of minors. In some states, settlements on behalf of minors can only be binding if they have court approval, even if the settlements occur pre-suit. As a matter of public policy, minors generally are viewed as wards of the court when they are involved in litigation, and the court has a duty to protect minors’ interests. Therefore, in such jurisdictions, court approval cannot be sidestepped even for settlements of very small dollar amounts. Courts routinely appoint guardians ad litem to oversee the settlement and to ensure minors are treated fairly by all parties, including their own family members or others in positions of power. The guardian ad litem’s recommendation to approve a settlement will typically outweigh a parent’s objections.

The given jurisdiction’s requirements for finalizing a minor’s settlement should be carefully checked because they vary significantly from state to state. In some states, the process of court approval typically starts with a petition for the court to appoint a guardian ad litem filed by the plaintiff’s attorney. After the guardian is appointed, the next step in some jurisdictions is to file a petition for the approval of the settlement. Some states then require a hearing on the petition with notice to all interested parties. Finally, the proceeds of the settlement commonly are disbursed pursuant to the court’s instructions, usually requiring the investment of the proceeds in government treasury bonds, federally insured certificates of deposit, or in a suitably rated annuity pursuant to the terms of an approved structured settlement.

It is important to know and understand the procedures, substantive laws, and strategies that differentiate a minor’s claim from an adult’s claim. Handling these matters with an informed approach will maximize the likelihood of efficiently achieving a favorable result for the defense in terms of time, expense, award, and enforceability.

Howard L. Huntington is a partner at Harrison & Held, LLP. He can be reached at hhuntington@harrisonheld.com.

Karen Swafford is claim manager at CCMSI. She can be reached at kswafford@ccmsi.com.

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