One of the important issues to address in personal injury cases involving minors in Virginia is how the statute of limitations will work for them. This issue is not related to medical malpractice, but to other types of personal injuries. The law treats minors differently from adults in these circumstances, and has provided appropriately for when the personal injury statute of limitations will apply for an injured minor.
A Minor has No Legal Capacity until their Emancipation
Injured adults in Virginia are required to file a personal injury claim within two years from the date of their injury. However, the rule for minors is different. The Virginia Code § 8.01-229 under Section 1 says that a minor has no legal capacity (a minor is considered under disability) to file a personal injury lawsuit.
Therefore, the statute of limitations in case of injured minors is suspended (tolled) until their emancipation, which occurs on their 18th birthday. From the day the minor turns 18 years of age, they will have two years from that date (which is until their 20th birthday) in Virginia to file their personal injury lawsuit. In other words, a minor has until age 18, plus two years to make a personal injury claim if they wish to sue the at-fault party for compensation.
Is it Possible to File a Claim before the Child Turns 18?
The law in Virginia prohibits minors from filing a personal injury claim on their own until they have turned 18. However, the law permits the child’s “next friend” to file a personal injury lawsuit on his or her behalf. In legal parlance, the “next friend” could be any adult whom the Court finds proper. In most cases, the “next friend” is either the parent(s) of the child or a legal guardian.
Who will receive the Compensation on the Child’s Behalf?
Unlike an adult’s personal injury case, the compensation cannot be directly paid to an injured minor until they have attained the age of 18. So, the question arises where will the money go if a settlement or verdict in the case is reached before the minor’s emancipation?
Although the minor’s “next friend” will file the personal injury lawsuit on their behalf, but the compensation obtained, if any, must only be used for the sole benefit of the minor. Upon a settlement or a verdict, if a payment arrangement has been agreed upon between the parties, it can be followed with court’s approval.
In absence of such an approved arrangement, the court clerk will hold the compensation amount in an interest-bearing account for the entire period until the child attains the age of 18. Therefore, a lump sum amount will be released to the victim.
Settlements on Behalf of Minors are Reviewed by the Court
When the compensation in a minor’s personal injury case is obtained through settlement, the court in Virginia will approve the terms of the settlement to ensure that the child’s interests have been fully protected.
Virginia courts usually appoint a “guardian ad litem” in these cases. This legal person has the responsibility to review the terms of the settlement and recommend to the court whether the settlement should be approved or not. Once the court approves the settlement, the distribution of funds will occur as follows:
- The insurance provider or the defendant will pay the settlement amount to the court clerk, who will hold it in an interest-bearing bank account until the minor turns 18.
- If the court approves, the settlement amount may be disbursed to a fiduciary that will then hold the amount in trust, and will pay it over time exclusively for the child’s use and benefit.
- In cases where the compensation amount is very substantial, a structured settlement may be approved by the court where the interest income on the amount can be higher and payout terms can be more flexible.
- In cases where the settlement amount is up to $25,000, the court may decide to hand over the full amount immediately to the minor, even when he or she is below 18 – provided the court is of the opinion that the minor is competent enough to manage the money.
According to a law passed in Virginia in 2013, under specific circumstances, the courts can give the verdict or settlement amount to the parents to be used for the medical care, welfare, and other benefits of the minor before they attain the age of 18.
Talk to an Accomplished Personal Injury Lawyer in Virginia
An injured minor has a right to receive their rightful economic and non-economic damages from the at-fault party in a personal injury case. The committed attorneys at Shapiro, Appleton, Washburn & Sharp have experience in handling these types of cases involving minors. We will help ensure that your child’s rights and their financial future is protected by claiming the maximum possible compensation. For a free consultation, call us at 800-752-0042 today.