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Children's Injuries FAQ

Your worst nightmare has unfortunately come true - your child has been hurt in an accident. While we know that a lawsuit is the furthest thing from your mind after your child's well-being, but pursing compensation may be the best way to ensure that your child's medical needs now and in the future are taken care of. We have prepared a set of questions and answers pertaining to children's injuries that we hope help you make the best decision.
  • How will the Court handle my child's settlement?

    When settling a case for a child the process is different than settling a case for an adult. In the state of Virginia, a settlement for a person "under disability" must be approved by the Court. A minor, a person under the age of 18, is considered to be under disability by Virginia law. The settlement hearing can be brought in any court in which the case could have been filed. If the court approves the settlement it is binding upon the minor, unless it is set aside for fraud.

    If the Court approves a settlement for a person under disability there are four ways that it can be distributed to that person.

    1. The payment can be made to the Court and held until the child is 18.
    2. The money can be paid to a qualified fiduciary to oversee the settlement for the person under the disability. In order to appoint a fiduciary, the Court must inquire into the nature of the relationship between the fiduciary and the minor.
    3. If the settlement is $25,000 or less, the Court may turn the money over to the minor if they believe the minor is competent enough to handle the funds. The Court may also turn the money over to an administrator to handle they money for the person under the disability. In the case of a child, their parent would most likely be the administrator.
    4. A structured settlement may be set up. Essentially, this is an annuity that gains interest while the child is a minor. The distributions of the funds would start after the child’s 18th birthday, but can come at a later age. If the money is used to purchase an annuity, the annuity must be irrevocably guaranteed by an insurance company that has been rated A+ or better by Best’s Insurance Report. This is an added precaution to make ensure the funds are saved for the child. If the insurance company that provides the annuity is not rated A+ or better, a bond must be posted.

    In very rare cases, the Court will release the money to the parents; however, Courts are extremely cautious of releasing money to the parents due to previous cases of fraud.

    The law in Virginia was written to contain an extra layer of security to protect the child’s settlement from fraud. If you are pursuing a case involving a minor, please contact our office for further information.

  • To whom does the money go in a child's personal injury case?
    Medical bills account for a significant portion of most children's personal injury cases in Virginia. Children are not responsible for paying their own medical bills, and therefore, any out of pocket money the parents apply towards medical expenses is eligible for reimbursement in a claim filed separately from the child's personal injury case. In this instance, the case is separate from the child's and the money goes to the parents.

    If an adult sues on behalf of a Virginia minor, however, any monetary recovery belongs to the child. (A child under the age of 18 cannot sue on his or her own behalf.) The child will not receive any money until he or she is 18 years old. The courts generally hold the money in an account and will only release the funds to the child or the child's parents under extreme circumstances.

    If the amount of the award is significant, structured settlements are recommended. Structured settlements earn interest and allow children to receive money years later after they turn 18.

    More information on Children's Injury Cases in Virginia
  • What is a structured settlement in a child's Virginia personal injury case?
    Compensation for a personal injury case often comes in the form of a lump sum received shortly after a settlement or verdict is reached. In children's cases, however, the money cannot be given to the children until they are 18 years old. The court that approves the settlement (see 9 Ways in Which Your Child's Virginia Injury Law Case is Different from an Adult Virginia Injury Law Case) has money paid into the court where it is placed in a bank account until the child's 18th birthday. The money will earn interest but only at the lower savings account rate.

    A great alternative is a structured settlement. This method takes the money the insurance company would pay to the injured party and has the insurance carrier purchase an annuity in the injured person's name, in this case a child. The annuity pays more interest than the savings account. It also allows more flexibility then just turning the money over to the child at their eighteenth birthday. For example, the payments could be set in four equal installments to help pay for college for the child at age 18, 19, 20 and 21. If the child needs lifetime care, it could pay her monthly for a set number of years.

    Studies have shown that structured settlements do protect a child's money from outside abuse. Structured settlements must be approved by the courts and are typically seen as one of the best options for protecting award money in a Virginia Child's personal injury case.

    This blog has more great information about structured settlements!
  • What is the statute of limitations to file a child's personal injury case in Virginia?
    In Virginia, an adult (defined as a person over the age of 18) must file a personal injury lawsuit within two years of the injury. This time limit is called the statute of limitations. There are different statutes of limitations for different types of cases (e.g. contract, property damage, defamation.) If a child has a personal injury case in Virginia, the statue of limitations does not end until his twentieth birthday. Because Virginia law considers a minor to be "under a disability," the statute of limitations is tolled, or on hold during the child's "disability." Therefore, the statute of limitations does not start running until the child is eighteen and when he is no longer considered to be "under a disability." Virginia Code 8.01-8,8.01-229

    There is one important exception to this rule. If a child has been legally emancipated, a process which requires a Court hearing, then he is no longer under a disability. If the child is emancipated when the injury occurs, he has two years from the date of injury, or the normal statute of limitations for a Virginia personal injury case. If the child became emancipated after the injury, he has two years from the date of emancipation to file his personal injury lawsuit. These rules apply regardless of whether the child's automobile accident case is pending in Charlottesville or any part of Virginia.
  • Who is eligible to file a Virginia child's personal injury lawsuit?
    In Virginia, any child under the age of 18 is classified as an infant. Virginia does not allow children under the age of 18 to file a suit on their own behalf. Instead, an adult over the age of 18 must file on behalf of the child. The adult who files suit is known as the child's "next friend." The child's "next friend" is usually one or both of the child's parents; however, another adult or the child's legal guardian can also file a Virginia child's personal injury claim.

    It is important to note that while the suit is filed by the "next friend" of the child, any monetary recovery belongs to the child and will be held by the Virginia courts until the child reaches the age of 18.

    SEE: To whom does the money go in a child's personal injury case in Virginia?

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