Can I pursue a claim on behalf of my son against my husband?
- October 5, 2017
When a child is harmed, they are entitled to the same injury compensations as an adult. This includes compensation for their pain and suffering and medical expenses. In addition, the child’s adult caregivers or guardians are entitled to compensation for any expenses related to the child’s care, such as medical bills, additional child care, medications or expenses for ongoing therapy or rehabilitation. The child’s right to compensation does not change even if the person at fault for the child’s injuries is their own parent or family member.
When a Family Member is at Fault
While it can be emotionally conflicting, it is in the family’s best interest to file a claim even if another family member is the at-fault party. This is because personal injury lawsuits are rarely targeting the individual at fault. Instead, the claim, and subsequent lawsuit if necessary, is really targeting the insurance company. On the court documents, it may look like a family member is being sued, but ultimately the insurance company covers the cost of the lawsuit and damages. That insurance coverage applies to all members of a family, even if a family member is the cause of the injury.
This is most often the case in car accidents. A family member accidentally hurts a minor child with their vehicle, perhaps by striking them with the vehicle or injuring them as a passenger in the car during an accident.
Injuries to minors are also common in the home. Similar rules apply to that situation. Instead of auto insurance, home insurance can be used to cover the damages and injuries to the minor child.
Minor’s Ability to File a Claim
A person under the age of 18, unless certain conditions apply, is not considered to have the capacity to file their own claim or lawsuit. Instead, the statute of limitations on their ability to file is extended until one year after the day they are capable of filing. For most minors, this means they could legally file their own claim for damages once they turn 18 and until they turn 19, no matter when the accident or injuries occurred.
It may be tempting to simply wait until that time and let the child determine whether they wish to pursue the lawsuit. There are many practical problems with this. All personal injury claims and lawsuits require evidence, and the older that evidence is by the time it’s presented in court the harder it will be to accurately determine damages and make a case. Even if the at-fault family member does not disagree or attempt to defend themselves, their insurance company will do so for them. Remember, insurance companies do not want to pay claims and damages. It is still important to make a strong case and provide clear evidence of damages.
This means the best course of action is usually for the parent to step in and file the claim on behalf of the child. This is possible for most parents and legal guardians to do, and it is not too complicated. The parent must first petition the court for the ability to act on behalf of the child. This petition is almost always approved. The parent can then move forward with the case as normal, and it will work just like any other personal injury case.
The amount of potential damages and the defendant’s ability to pay those damages is an important aspect of any personal injury claim. This is where accidents involving family members get a little tricky. Since the entire family is covered by the same policy, each family member shares the pool of money provided by that policy. This could potentially affect the damages award in the claim.
For example, if multiple family members were injured a car accident, then each family member would have to take a portion of the liability coverage for that accident. This could max out the policy coverage very quickly for serious injuries. Before filing a claim, it would be important to compare the damages against the insurance policy’s ability to pay. A family may have to draw upon other types of coverage to cover the cost of a very expensive accident. This is an important discussion to have with an attorney prior to filing the claim.
Despite the mixed emotions surrounding claims and lawsuits against family members, it is usually in everyone’s best interest to file that claim. It is better to make the insurance company pay for injuries than to pay for those injuries out of pocket. A parent may discuss the particulars with an attorney to ensure they are making the right decision financially and personally.