QuestionDr. Settlement,
My family I were involved in a car accident with a drunk driver a few weeks ago here in California. My question is how do you measure emotional distress or pain and suffering with children? I have a five year old and a twelve year old, and the little one worries everytime we drive that we will be hit again.
AnswerDear Steve,
Sorry to hear that your family still has fears of driving, and I hope they go away soon.
There is not going to be any award for emotional distress unless there is a record from a doctor. It could be a medical doctor or a Psychologist. But emotional distress is not compensable unless it has been brought to the attention of a doctor and it is in her office notes.
Thus, I would mention the continuing fears to the doctor and thereby get a referral to counseling. That will help your child and also set the foundation for requesting payment for negligent infliction of emotional distress.
Pain and suffering is likewise hard to get a handle on for youngsters. But by age 5 and 12 one can at least articulate where it hurts and what makes it hurt. For example, recess activities may not be impossible for your kids, but if they are asked, I will bet that they do feel some pain at night.
Be sure those instances are recorded in their doctor's notes.
Next is the concern of any physical injury that might make your child more susceptible to future injury from even less trauma. Be sure to get a good handle on that aspect of the injury from your doctor-----and even double check her by research on the Internet.
It is one thing to have your child go through some temporary pain, but something else to know that her body has been weakened and she can expect future problems.
Then, as for valuation, I would not use the "usual" multiple times medical expenses since there may be only small medical billings, but a jury might have award a child more than an adult if the injury is serious.
I would call around and get an attorney consultation for that. Even if you have to pay, that money can be repaid as part of the settlement expense.
Here is how I would do it. In the first place, you do not have the authority to approve a settlement for your children. That is left to the court, and an attorney has to act as the one who will evaluate the claim. Read about that process below, and be thinking of how you could go to an attorney and accomplish two things.
First, have her evaluate the claim and second, have her petition the court for approval. She will ask the insurance company to pay her fees as part of the settlement process, so your children will not have to pay fees out of their settlements.
Here are some observations about how you will go about settling your claims.
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Personal injury insurance claims for minors; GAL and court approval process
A parent may NOT SETTLE his child's personal injury claim UNLESS it is small, or until a court approves the settlement AND the investment protection for the funds. The reasons for that are sound, and if you want you can read an exposition on the entire process to settle minor insurance claims http://www.settlementcentral.com/page8017.htm Guardian ad Litem (GAL) will interview you and your children, investigate the accident facts, review the medical records and talk to doctors, write what is called a "GAL report", and present it to the court. The order will be entered and filed with the clerk. Thereafter, the GAL may become involved in setting up the "blocked accounts" in their names, or verifying that the funds were disbursed as ordered by the court.
But to summarize here in my answer, if your child does have a very small claim (possibly the younger child you mentioned), it can be worked out with the insurance company to settle the claim yourself, to sign the release yourself, and to guarantee the settlement for the security of the insurance company.
The insurance company will forego the court approval process only on SMALL insurance settlements, and ONLY if the parent gives it a hold harmless agreement in exchange (i.e. to protect the insurance company should the minor later try to repudiate the insurance settlement agreement and release). But this is unusual, inasmuch as the insurance adjuster is instructed to get a full and effective release of the claim.
Since there are examples of former minor settlements being reopened when done without court approval, most adjusters do not have authority to let a parent sign a release on behalf of her child unless the claim is very small.
Plus, who is to guarantee that the parent will invest the proceeds in a blocked account for the minor instead of using the money herself to buy things that she would like her child to have but cannot afford on her own? Hence, most companies will want a court approval process.
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2. Can parents settle children's insurance claims? What about the process for court approval for minor's insurance injury claims?
We believe that in many cases, parents CAN AND DO make good settlements of their child's insurance injury claim. There is no reason that a parent cannot negotiate a fine settlement for his minor children. The only catch is that the insurance settlement and the investment of the insurance proceeds MUST BE APPROVED by a court of general jurisdiction in your state.
It is possible for the parent, with guidance and proper forms, to present the case yourself for approval. However, in most jurisdictions, an independent Guardian ad Litem (guardian for the litigation—most often an attorney) will be appointed to review the settlement and report to the court whether the terms and conditions are satisfactory. THE GAL REPORT will NOT RECOMMEND approval of settlements if it does not include consideration of long term consequences to the child. The court will then give approve the settlement, issuing a formal order approving the settlement and requiring investment of the proceeds in a safe and prudent manner.
A common question from parents is whether or not the money can be used to buy something that the child really wants, but which the parent cannot afford. All the cases I have seen the parent's request to use the child's money is refused, excepting in two instances: first, where the child wants a car and has a job that is so far that he requires a car to get to and from the job; and second, where the child is in poor physical and mental condition and the expenditure would, according to the child's doctors, go a long way in cheering him up and thus promoting his healing.
Other than those two kinds of examples, the court is not going to allow any parent to use the child's money for any other purpose.
Read about Guardian ad Litem for the minor, his attorney's fees, procedures for court approval of minor insurance settlements, paying fees and court costs, and asking for insurance company payment of all fees and costs http://www.settlementcentral.com/page8017.htm
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3. Do NOT settle your children’s soft tissue personal injury claims too soon; MORE TIME to live with injuries; better doctor workup of medical aspects of claims.
You are not even a month after the accident, and what is the rush to settle the claims? I am worried that if your children are having fears, then there might have been a good hard crash, in which case there could have been sufficient trauma to give some significant soft tissue injury.
I would like to see them go through some time for the kind of active living that kids do and see how they fare. What if you settled now and in a couple of months they started complaining about pains after physical activities?
And, of course, once you settle, that is it: no one will be there to pay for your kids' future medical care; nor will you or they ever see another dime in pain and suffering money. By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
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Where do you go from here? I would follow up on the doctor’s appointments for the fear factor right soon. I would think that you make sure that the children have healed pretty well before contacting an attorney.
Remember: you are asking the attorney to bill by the hour, NOT FOR REPRESENTING the children in the settlement. Also, tell her that although you will make good on her hourly fees if need be (your money will be repaid out of the children’s awards), you intend to ask the insurance company to put in the extra money to pay for her to draft the petition and the order of disbursement and to invest the money per the court order. Tell her that you will arrange the settlement, but you intend to make the settlement conditioned upon the insurance company paying for the approval process, AND NO MONEY WILL BE PAID BY THE KIDS FOR THE APPROVAL PROCESS.
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FINAL TOPIC: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
