You are traveling on Interstate 664 (I-664) headed to Chesapeake, Virginia (VA) with your child in the backseat. Another driver suddenly rear ends your vehicle causing major damage and injuring your child. Can your child file a personal injury claim against the negligent driver?
Answer: most likely, yes.
In general, if a minor (i.e. under the age of 18) is injured as a result of someone else’s negligence, the minor can seek monetary damages through a personal injury claim. However, your child cannot bring a lawsuit on their own. According to Virginia Code § 8.01-8, any minor that sues may do so by their “next friend.” A next friend can be a parent or legal guardian. If a parent or legal guardian is not available, then another adult can file the suit as the minor’s next friend. The next friend is not a party to the lawsuit, but represents the interest of the minor involved. For example, the style of the case must state the minor’s name by his next friend (e.g., “A Minor, John King Who Sues by His Next Friend and Parent, Mary King”). In Virginia, if the minor’s lawsuit is filed only in the parent’s name, the suit could actually be dismissed.
What Happens If the Other Driver's Insurance Company Offers a Reasonable Settlement
If you decide to go forward with your child's personal injury claim (with the assistance of a Chesapeake car accident lawyer) and a settlement is agreed to between the parties, there is a good chance a court will need to approve the settlement. This is because courts want to be able to review the details of the settlement and ensure it is in the best interests of the child (i.e. avoiding the risk that a parent or guardian accepts a settlement that primarily benefits them rather than their child).
A court has the power to appoint an independent attorney known as a Guardian ad litem to review the case, and to help determine whether the settlement is in the best interest of the child. If the court approves the settlement, the court must provide instructions on who should safeguard the minor’s monetary award until they turn 18 years old. Virginia Code § 8.01-424 list several options on what can be done with the settlement funds in this instance. For example, the funds can be paid into the court and held in a savings account or to the general receiver of such court, or to a duly qualified fiduciary of the person under a disability. At the court’s discretion, payments may be made payable to the parent or guardian of the minor to be held in trust for the benefit of the minor. A structured settlement is another option.
Parents’ Right to Recovery for Medical Bills and Related Expenses
Although a parent cannot file a lawsuit in their own name for their child’s personal injuries, § 8.01-36 does permit the parent to seek recovery from the negligent party for their child's medical bills or expenses that the parent paid or owes. If the minor’s personal injury occurred prior to July 1, 2013, the parent can seek reimbursement against the negligent party in the same court where the minor’s case is pending. The parent can file a separate lawsuit or include his/her claim in the minor’s complaint. If the personal injury occurred on or after July 1, 2013, the minor can recover the medical bills and expenses associated with his or her injuries. In that case, the parent or guardian who has paid or is obligated to pay for these expenses would have a lien and a right of reimbursement up to the amount paid or owed against any payment award received by the minor.