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Settlement of Personal Injury Claims of Minors

To be enforceable, the court must approve a settlement with an infant claimant (one under the age of 18). A settlement of an infant’s claim without court approval is not binding on the infant, and the infant may sue again even though he has received money. Court approval must be obtained even if no lawsuit has been filed.

The court must also consider and approve the reasonableness of the amount of attorney’s fees claimed, the expenses of the litigation, the medical expenses, the claims of the parents or guardians and the administrator of the funds until the infant reaches majority.

The definition of an infant is any living person under the age of 18 years. The critical time is the infant’s age at the time of the settlement. For example, if a sixteen year old was injured in an automobile accident, he would need court approval of a settlement until his eighteenth birthday. After he turned eighteen, he would not need court approval of the settlement even though the accident happened when he was sixteen.

The infant can recover for pain and suffering, permanent injury, and impairment of earning capacity after attaining majority. In most circumstances, the infant cannot recover medical expenses. This element of damages belongs to the parents as a separate claim unless the parents have waived this right over to the infant.

The parents can recover the expenses of curing or attempting to cure the infant and the loss of the infant’s services while the infant was a minor.

Usually, the court will order the disbursement of the settlement proceeds. First, the courts typically want to ensure that the health care providers are paid for their services. Any ERISA lien (e.g., if the infant’s parent worked for an employer with an ERISA health care plan which paid for his medical bills) must also be satisfied. The remaining sums are for the infant and the attorney who brought the claim.

Most courts deposit the money with the clerk of the court, where it earns interest, until the infant reaches age eighteen. This is another reason that plaintiffs consider structured settlements.