Filing a Car Accident Claim on Behalf of Your Child in Georgia

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- D. Lo

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Key Points:

  • If a child is injured in a car accident, there are two options to recover compensation: the victim can file a claim themselves once they turn 18, or their parent or legal guardian can file a claim on their behalf while the child is still a minor.
  • Under Georgia law, any settlement over $15,000 must be approved by the court and held in trust for the child until they reach 18 years of age. The parents can receive compensation for medical costs they incur, subject to the court’s approval.
  • As in any injury claim, a child has the right to recover all economic and noneconomic losses caused by the at-fault driver as well as any applicable punitive damages.
  • When a parent or guardian files an accident claim on behalf of their child, the burden of proving liability and damages for the child’s costs lies with the plaintiff/claimant and their attorney.

Despite safety laws and recommendations aimed at protecting children in car accidents, motor vehicle crashes remain a leading cause of death and injury for children. According to the CDC, more than 91,000 children age 12 and under were injured and 608 died in motor vehicle accidents in 2019.

Under Georgia law, children 8 and under must be properly restrained in an age-appropriate car seat or booster seat and must ride in the back seat of the vehicle (an exception is made for certain types of vehicles or vehicles with no rear seating). The Georgia Governor’s Office of Highway Safety also recommends that children 12 and under ride in the back seat whenever possible because rear seating helps protect them from airbags and other impacts that can cause serious injury to small bodies.

Even when parents follow every law and recommendation designed to keep their kids safe, however, children can still experience severe, life-changing injuries in a car accident. Often, children are more vulnerable to long-term negative effects than adults because their bodies are still growing and developing. Special medical care and treatment may be needed to ensure a full recovery or the best possible outcome for a child.

If your child has been hurt because of someone else’s negligence, they have a legal right to recover full compensation—just like an adult. However, because minors (those under 18) cannot file an injury claim themselves, a parent or guardian must typically file on their behalf. When you file a claim against the at-fault driver’s insurance company on behalf of your child, your child has the same chance of success as an adult, though the process can be more complicated. An experienced car accident attorney can help you with the process of filing a pursuing a claim,

Who Can Sue or File a Claim on Behalf of an Injured Child in Georgia?

Under Georgia law, only adults can file an insurance claim or lawsuit for an injury, and anyone under the age of 18 years is considered a minor. However, just because minors can’t pursue a claim themselves doesn’t mean they can’t receive compensation.

In Georgia, there is a two-year statute of limitations on filing an injury lawsuit that starts to run at the time of the accident. O.C.G.A. § 9-3-33. But if the injury victim is a minor, the two-year period can be paused and restarted on the day they turn 18 to allow them to file a lawsuit on their own behalf. In most cases, however, it doesn’t make sense to wait years to file a claim for the injury because the child’s parents need to recover medical costs after treatment. In addition, valuable supporting evidence may be lost or destroyed if too much time passes before the claim is filed.

Fortunately, the law also allows parents and guardians to pursue compensation on their child’s behalf while their child is still a minor. If a minor is injured because of someone else’s negligence, O.C.G.A. § 9-11-17(c) provides the method for filing a lawsuit. O.C.G.A. states “[i]f an infant or incompetent person does not have a duly appointed representative, he may bring an action by his next friend or by a guardian ad litem.”

Under this statute, “next friend” is interpreted to mean a custodial parent or other legal guardian of the child. For example, if the child has been legally adopted, the adoptive parent is considered the “next friend.” Relatives other than a parent or legal guardian (e.g., aunt, uncle, or grandparents) may not bring suit on the child’s behalf unless they have been appointed as a representative by the court.

Note that if a legal claim for damages is brought on the minor child’s behalf, the two-year statute of limitations will not be paused and restarted later (meaning, the child cannot file an additional claim after turning 18).

Also note that while parents and legal guardians have the right to file a lawsuit on the minor child’s behalf, they don’t have the right to accept a settlement when negotiating with the insurance company if the amount is over $15,000. In Georgia, all child injury settlements over $15,000 must be approved by a judge in a special hearing. O.C.G.A. § 29-3-3. The judge may also appoint a guardian ad litem to accept the settlement.

What Expenses Should Be Compensated in a Children’s Car Accident Claim?

A parent or legal guardian filing a claim for their child’s injuries should know that a minor is entitled to recover all expenses related to the accident as well as future economic and noneconomic losses. In other words, the at-fault driver’s insurance company is required to make the victim whole, or be left in the same condition as they were before the accident.

Economic losses include medical expenses, such as ambulance rides, emergency room care, surgery, follow-up doctor’s appointments, and prescription drugs. Medical costs also include future treatment, such as physical therapy and ongoing care, and medical appliances, such as crutches and wheelchairs. In the case of a permanent serious injury, a child may also recover damages for diminished earning capacity, which limits the child’s ability to work and earn a living as an adult.

In addition to economic costs, a minor can also recover noneconomic losses, including pain and suffering, trauma, and diminished quality of life. Damages for past and future pain and suffering can be substantial in the case of a catastrophic or lasting injury to a child (e.g., burns, spinal cord injuries, or traumatic brain injuries), but temporary injuries, such as whiplash and broken bones, also require compensation.

When calculating the value of future losses, keep in mind that the more years the victim will be affected, the greater the loss. If the victim is a young child, for example, they will suffer the effects of a car accident for far longer than an older adult—their damages should reflect that.

In certain situations, a child may be entitled to punitive as well as compensatory damages. For example, if the child’s injuries were caused by a drunk driver, Georgia law allows the jury to award punitive damages to punish and deter the driver.

You should know that a punitive damages claim is often worth much more than a compensatory claim, and the at-fault driver’s insurance company is required to pay both, up to the liability limit in the policy, to settle the case. If the insurance company refuses to exhaust the policy to settle a valid demand, a jury is not limited by the terms of the policy when awarding damages at trial.

Effective Evidence That Can Strengthen a Child’s Car Accident Claim

As with any car accident claim, the burden of proving liability and damages for a child’s injury lies with the plaintiff/claimant and their attorney. That means you and your attorney must collect strong evidence proving who was at fault and gather documentation showing the full cost of the accident—regardless of whether you’re pursuing an insurance settlement or a lawsuit on behalf of your child.

Unless the evidence proves liability, the child won’t receive full compensation from the insurance company if the claim is disputed. To prove liability, your attorney needs to investigate the accident to determine what happened. Police accident reports, traffic citations, 911 calls, photos, videos, and eyewitness statements can all be used to prove which driver caused the crash.

Even if the evidence proves liability, you and your attorney must still gather and submit documentation showing the total cost of the accident, which includes all economic and noneconomic losses. When it comes to medical costs, certain expenses can be easily proven while others are harder to show.

For example, you can document past medical treatment and injuries with bills, records, and photos, but you may need to provide expert opinions or video evidence to demonstrate how the injury has changed the child’s life, either by preventing them from doing activities or limiting their future ability to work.

To ensure your child receives all the compensation they deserve, you and your attorney should take the time to assess how the accident has impacted them, collect all supporting evidence, and submit the evidence to the at-fault driver’s insurance company with the settlement demand.

How to Know Whether the Insurance Company is Paying the Full Cost of the Child’s Accident

Parents often incur significant medical expenses after their child is injured in a car accident. In some cases, a parent may be responsible for providing ongoing care for an injured child long after the crash and even after the child reaches adulthood. Fair compensation from the at-fault driver’s insurance company must cover all losses from the accident—the full cost to the child and the expenses paid by the parent on the child’s behalf.

In certain situations, it may be obvious that the insurance carrier has made an unreasonably low settlement offer. For example, if the payment fails to cover the child’s medical bills, it’s clear that the cost of the accident exceeds the offer. However, many times the carrier is willing to pay

expenses supported by bills but ignores or underestimates other types of costs, such as pain and suffering or diminished earning capacity.

These costs can be harder to calculate and prove but they must be included for the victim to be made whole. Also, even if the insurance company offers full compensatory damages, your child may still have a claim for punitive damages. Without the expertise of an experienced injury attorney, parents may not realize how much compensation their child should receive and end up paying for expenses out of their own pocket or leaving money on the table. Who Receives Compensation in Child Injury Claims in Georgia?

When an adult receives compensation for a car accident claim, the payment process is straightforward—the funds go directly to the victim. However, when a parent files a claim on behalf of their child, the process works differently. In a child injury claim, the parent who filed is not entitled to simply collect the money and use it as they see fit.

First, remember that any injury settlement over $15,000 must be approved by the court. Parents are not given access to the settlement unless they are appointed by the court to act as the child’s conservator (i.e., someone who manages their finances). O.C.G.A. § 29-3-3. Any decisions the parent makes as conservator must be for the child’s benefit rather than their own.

Generally, parents are allowed to receive enough money to cover medical bills and related expenses they have paid, but the rest of the funds are held in trust (in a separate bank account) for the child until they turn 18. Sometimes exceptions are made for other expenses, but it is the judge—not the parents—who makes this decision.

Challenges That May Arise in Child Car Accident Claims

Filing a car accident claim on behalf of a child can be complex, but certain facts and circumstances can make compensation recovery even more challenging. For example, sometimes children are injured in accidents while riding as passengers in their parents’ cars, and their parents are completely or partially at fault. If their parent is liable for the accident, the child may not be able to recover compensation from the other driver’s insurance carrier.

As a passenger, however, a child can file a legal claim against any driver who was at fault, even if it was their own parent who caused the crash. Note that car accident claims are filed against the driver’s insurance policy, not against the driver themselves—which means that if the parent was at fault, their insurance carrier is obligated to pay the child’s costs of the accident. In that situation, the parent who was the at-fault driver can file a claim on their child’s behalf against their own liability policy.

Keep in mind that Georgia is a comparative negligence state, so sometimes both drivers may be found responsible and required to pay compensation based on their percentage of fault. That means if the parent was at least 50 percent at fault, the child can’t recover any compensation from the other driver’s insurance carrier; if the parent was partially at fault, the compensation from the other driver’s insurance company would be reduced by that percentage. When the facts indicate comparative negligence, both insurance carriers will fight hard to reduce the amount of compensation they must pay to the child.

Another challenge that can arise is when the child is injured by a driver who has no auto insurance. In that case, the parent can file a lawsuit against the driver personally on behalf of the child, but often drivers who have no insurance also have no assets to pay a judgment.

If the parent has auto insurance, however, the child can recover from their parent’s uninsured or underinsured motorist policy. If the parent also has no auto insurance, they may be able to recover compensation by filing against their homeowner’s policy.

Our Team of Car Accident Lawyers Can Help

If your child has been hurt in a car accident, make sure you seek the advice of an experienced personal injury lawyer. When deciding who to hire, remember that our firm has been helping child victims since 1993 and know how to help you recover maximum compensation on their behalf. Call The Millar Law Firm today at (770) 400-0000 or contact us online to set up a free consultation with one of our attorneys.