Pleadings and Filings in Your Child’s Minor Settlement – North Carolina Personal Injury Lawyers
This article has been written to provide you with information about how to successfully handle your child’s minor settlement without having to hire a North Carolina Personal Injury Lawyer.
This article should act as an overview and a guide through the specifics related to filing and handling the various aspects of a minor settlement hearing in district or superior court. The information related to minor settlement hearings, documents and pleadings contained herein are simply a guide and should not be considered a substitute for experienced legal counsel. The law is nuanced and vast. Please consider consulting with a personal injury lawyer before the final hearing so that your documents and settlement numbers may be reviewed.
The most misunderstood fact about personal injury is that a larger personal injury settlement is actually not the ultimate goal. Don’t be surprised! The goal of any personal injury settlement is and always should be to ensure that the client gets to keep more of his or her own money.
If you plan on handling your child’s minor settlement alone, it’s important that you understand that medical bills and subrogation interests are the biggest and most significant barrier to ensuring that your child keeps more of their own settlement, especially when there is no attorney handling or advising on those issues. After all, what is the point of settling a $50,000 claim if your child gets to keep $5,000 because their medical liens were never properly considered?
Additionally, if you are looking to get more information about minor settlement, or if you are looking to handle your child’s settlement hearing yourself, consider consulting with a personal injury lawyer. Meeting and talking to a lawyer does not require you to hire them. In fact, you could hire the lawyer to simply give you detailed advice as opposed to hiring them to handle the case, which may be significantly cheaper than traditional representation.
Before You Proceed
This article assumes that your minor child has been injured as a result of a motor vehicle accident and that you have successfully brought the claim before the at-fault insurance company and reached an agreeable settlement.
Presenting Accident Claims for Minors
As you are likely aware, presenting a child’s claim for injuries and damages after an accident is very similar to that of an adult. While there are some distinctions, the most significant to remember is that minor children do not typically possess their own claim for medical expenses incurred as a result of the accident. More simply, a parent’s claim for damages related to medical expenses and loss of services is not the same as a minor’s claim for damages.
This means that you should consider how you are going to present the parent’s claim for medical expenses and the minor’s claims for damages before you present any claims to the insurance company for compensation.
Additionally, if you have reached an agreeable settlement with the insurance company but are waiting on judicial approval, consider speaking with the insurance company or the Guardian ad Litem, if he or she is an attorney, and ensuring that the claim for medical expenses has been included appropriately.
Pleadings and Documents
There will be several documents you will need to familiarize yourself with before attending your minor settlement hearing. This section contains an overview of the documents that are likely to be a part of your minor personal injury settlement hearing.
While it is typical for the opposing attorney to draft the minor settlement pleadings and documents, it is not uncommon for the defense attorney or the insurance company to request that you, as the plaintiff, provide a first draft of the petitions, orders and complaint. However, it is worth noting that most claims involving an insurance company will have the opposing party proposing the first draft of all relevant documents.
To aid you in better understanding what documents you will likely encounter when handling a minor settlement hearing, we will list out each document, describe it in detail and then provide you with an example of the same. Please remember that each claim is different and that the documents contained herein are provided for illustrative purposes only.
Below is a list and description of each document you will need. You can also find a basic template of each document attached to this article.
Civil Action Cover Sheet. A Civil Action Cover Sheet gives the court notice of the basic background of the case. It includes the county, court division, parties and contact information, as well as the type of case being brought before the court.
Make sure to list the county the case is being heard in, as well as the appropriate court. Minor settlements are generally heard in either the district court or superior court, depending upon the settlement amount. If the settlement amount is more than $10,000 but less than $25,000, the case should be heard in the district Court. However, if the settlement amount exceeds $25,000, the case should be heard in superior court.
Under the “Type of Pleading” section, make sure that you check the boxes next to “Complaint (COMP)” on page 1 and “Minor Settlement (MSTL)” on page 2. Don’t forget to sign and date the document.
Complaint. The Civil Complaint is what most people think of when they hear the word “lawsuit.” A complaint is the legal document that asserts allegations against the at-fault party. More importantly, a complaint is the document that commences the legal action against the at-fault party or defendant.
When lawyers draft lawsuits, they follow a set of defined rules and guidelines set forth in the North Carolina Rules of Civil Procedure. The Rules of Civil Procedure act as a general guide for what should and should not go into a lawsuit.
Rule 8 of the North Carolina Rules of Civil Procedure requires a plaintiff to give a “short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief[.]” This rule was created to ensure that parties do not have to endlessly ramble about the facts and allegations in their complaint in order for the parties to know what they are arguing about. When drafting or reviewing a draft of a complaint, be sure that the facts and allegations are short and plainly written.
The attached complaint template contemplates a minor settlement arising out of a car accident. If your case arises out of a different set of facts, complete paragraphs 5 and 6 accordingly.
In paragraphs 9 and 10 under the “Prayer for Relief” section, do not list the actual amount of the proposed settlement. Insert “$10,000” if your case is before the district court and “$25,000” if your case is before the superior court.
Civil Summons. The Civil Summons gives the at-fault parties notice of your claims against them and instructs them to appear and defend against your allegations before the court. It is always advisable to issue or file your civil summons with a court at the same time as the complaint.
Since most minor settlement hearings are “friendly” lawsuits, we will not go into a discussion of process and service of process under the North Carolina Rules of Civil Procedure. Typically, the summons is served upon the defendant along with a copy of the complaint. Considering that your minor settlement hearing is “friendly,” the attorney for the defendant will likely accept service of process so you don’t actually have to formally serve it. It is advisable to email or write to the attorney for the defendant and confirm that they would be willing to accept service on behalf of their client.
Notice of Hearing. The Notice of Hearing lets the defendant(s) know where and when the case will be heard. Contact the trial court administrator in your county for information on scheduling a hearing. More information about this can be found on the NC Administrative Office of Courts website.
Petition for Appointment of Guardian ad Litem. The Petition for Appointment of Guardian ad Litem is the first of two petitions you will be bringing before the court. This document asks the court to approve the Guardian ad Litem appointee to serve as the representative for the minor plaintiff in the minor settlement. It is worth noting that a petition for appointment of a Guardian ad Litem should be brought before the clerk of court and not the judge. Complete the county, division and caption on the form as you did for the complaint. Have the Guardian ad Litem appointee sign and date before a notary public.
Order Appointing Guardian ad Litem. The Order Appointing Guardian ad Litem serves as the court’s approval of your petition to appoint your chosen Guardian ad Litem for the minor settlement hearing. Complete the county, division and caption as you did for the complaint. Have the clerk or a properly authorized deputy clerk sign and date.
Petition for Court Approval of Minor Settlement. The Petition for Court Approval of Minor Settlement is the second petition you will present to the court. It simply asks the court to approve of the settlement that has been reached with respect to the minor plaintiff, while setting forth the facts giving rise to the claim(s) asserted. Remember that the sample documents contemplate a car accident; if your case involves a different set of facts, update them the same way you did in the complaint. Complete the county, division and caption as you did for the complaint, and don’t forget to sign and date.
Order Approving Minor Settlement and Dismissal with Prejudice. The Order Approving Minor Settlement & Dismissal with Prejudice is to be signed by the judge. It includes the court’s findings of fact, as well as a breakdown of how the settlement funds are to be disbursed. This order will also dismiss your case with prejudice, meaning that you will not be able to refile your claim in the future. Make sure to amend the pleadings as needed to reflect the facts of your particular case, as well as the manner in which the settlement funds will be disbursed. Complete the county, division, and caption as you did for the complaint, and don’t forget to sign and date the consent page at the end of the document after the judge signs the order. Have the defendant’s attorney and the Guardian ad Litem do the same.
Settlement and Release. The Settlement and Release is a contract between you as the minor’s parent, the Guardian ad Litem, and the defendant or his insurance company. It will set forth the facts of the case, the agreement to settle for the given amount, and a release of your right to allege liability against the defendant or his insurance company once the settlement funds have been paid out. For more general information about settlements, visit our Settlement and Release page.
Technically, this document is not necessary because the order approving the minor settlement will also function to dismiss your case with prejudice, but you will almost certainly be required to sign this a Release before any checks will be issued.