Accidents Involving Children

The law assumes that children don’t have the same well-formed judgment as adults do, & has fashioned special rules for compensation & liability in accidents involving children.

Injuries to Children

                Although the procedures for collecting compensation for a minor in most states, a person under age 18 vary somewhat from state to state, in general a child has a right to compensation for pain & suffering, permanent injury, or disability in the same manner & for the same amounts as an adult. Also, parent has a separate right to be compensated for medical bills paid on behalf of a child. Obviously, a child can’t negotiate a claim, so a parent is permitted to negotiate on behalf of the child. In some states, the parent must get the approval of a judge before the child’s claim can be finally settled. This process is usually short & straightforward, & involves nothing more than the filling out a simple form & filing it with the court for approval. An insurance company you reach a settlement with can help by providing you with the proper form & giving you instructions on where to file it. It is in the insurer’s interest as well as yours to see that the settlement is properly approved so that a lawyer for the child doesn’t go to court months or years later & claim more money for the child. The form will also be available from the court clerk’s office.

Accident Caused by Children

                Legal liability for accidents caused by minors is based on the same notion of care & carelessness as accident caused by adults. But the same standards of care that are expected of an adult can’t be applied to minors. Carefulness implies understanding risks, & minor’s particular young children don’t understand risks the way adults do. The law applies different standards to different age groups when deciding whether a minor is liable for causing injuries to another person. Very young children are generally not held liable for accidental injuries they cause. They are too young to understand that they have been careless. This doesn’t mean, however that parents or legal guardians might not be liable for their negligence in failing to control a child. Once a child is old enough to know right from wrong, the child can be held responsible for intentional injuries he or she causes. Thus, if a child intentionally injures another child, for example or intentionally throws a rock at a car & causes an accident, the child who commits the intentional act & the child’s parents may be held liable. Older children are generally held liable for negligent conduct if they didn’t behave carefully as measured by what other children of the same age would understand is reasonably careful & once children become middle teenagers, they are held to pretty much the same standard as adults. When driving a care, a minor is held to exactly the same standards as adults. Children don’t normally have much money of their own, but if a minor can be held legally responsible there are several ways for a person injured by the minor to collect compensation. First, the actions of minors are very often covered by insurance. If a minor is driving a car, insurance or the insurance of the car owner should cover the accident. If the accident doesn’t involve a vehicle, a homeowner’s or renter’s insurance policy may cover the conduct of a minor who lives in the home. So the injured person may be able to deal directly with the parent’s insurance company. If you are seriously injured in an accident caused by a minor & there is no insurance covering the minor’s conduct, it may be worth pursuing a lawsuit against the minor. If you obtain a legal judgment from a court stating how much the minor owes, the minor will have to pay it upon coming of age 18years old in most states & starting to earn money. Because this process can be long & cumbersome & is usually worth pursuing only in cases of serious injury, however, it probably requires the assistance of an attorney.

Your Own Health Coverage & Accident Claims

                 Normally, when you are ill or injured, you look to your own health coverage through health insurance or a health maintenance organization, Medicare or Medicaid to take care or your medical bills. When you have been injured in an accident, however, you may also eventually receive compensation from another person’s insurance company or from your own vehicle insurance company if you had an accident with an uninsured motorist.

                If you do receive compensation for your injuries but your medical bills have already been paid through your health coverage. You may be obligated to repay some or the entire amount to the health plan. Whether & how much you have to repay varies with the type of plan & is determined by the terms of your policy or membership agreement with the health plan & by how the plan enforces those terms. Many health plans pay no attention to whether accident insurance compensates you for the same injuries that the health plan covers, & you get to keep your whole settlement. Other health plans, however specify that you must reimburse them out of any accident insurance award you receive.

                Following an auto accident you may have the option to pay medical bills through either your health the  option to pay medical bills through either your health plan or through the medical payments provision of your auto insurance policy. As discussed of your health plan or your vehicle insurance medical payments coverage requires you to reimburse it fully if you collect later from another source. If one requires reimbursement & the other doesn’t, you are usually better off using the one you don’t have to repay.

                Health Coverage with Insurance Company

                Whether you must reimburse your private health insurance company depends on the terms of your health insurance policy. Read your policy to see if there is a section entitled “Right to Reimbursement”. If so, & if the policy states that a right to reimbursement applies to third party claims, then the insurance company has a right to ask you to repay it any amount that it paid related to your injuries from the accident.

                Even if a health insurance company has a right under the policy to seek reimbursement from you, whether it actually does so depends on whether it knows you have filed an accident claim, it may ask whether the injuries were the results of an accident. It may ask whether or not you have filed a claim for damages against the liable party. But if your claim form doesn’t pose such questions, the insurance company may have no idea that you have filed & settled a claim for damages. Even if the company does file a request for reimbursement, you don’t necessarily have to repay the full amount it claims.

When You Might Need a Lawyer

             Sometimes, the skills of an experienced personal injury lawyer, or at least the threat that such a lawyer presents to an insurance company, are worth the money you have to pay that lawyer to represent you. You may need a lawyer because your injuries are so serious that the potential amount of your compensation might vary greatly, or because an insurance company refuses to settle the matter with you in good faith.

               

*Hiring a lawyer later in the process

If, after you have presented your claim & negotiated with an insurance company, you don’t feel the insurer is offering a fair settlement, you can retain an attorney to finish the process for you or you may be able to consult an attorney on an hourly basis to see if he or she can spot a particular legal argument that might help you to move the insurance company toward a more reasonable offer.

There are no hard fast rules about when you do & don’t need to hire a lawyer. Much of the decision has to do with how you feel things are going as you attempt to settle your claim on your own. At some point, you may feel overwhelmed by too much work, or by some obscure legal rule the insurance company decides to throw at your you may be stonewalled by an insurance adjuster who blusters that the company doesn’t have to honor your claim at all, or who offers you only a piddling amount to settle it. In these situations, you may want to consult an attorney for advice, & perhaps have him or her take over handling the claim. There are a few types of injuries & accidents that almost certainly require that you hire a lawyer.  

Injuries Caused by Animals

               Pets most commonly, dogs cause injuries in a variety of ways, biting, clawing, jumping & knocking people down, running & barking at people & making them lose their balance running into the street & causing vehicle accidents. A few states have laws making dog owners liable for any injuries their dogs cause away from the dog only if the owner knew or should have known that the dog was likely to cause the type of injury that occurred. A dog owner is usually covered by home owner’s or renter’s insurance for injuries caused by the dog & business owner is covered by business liability insurance for any injury caused by animal kept on the premises by the owner or any employee.

                In a claim for injuries caused by a dog, you & the insurance company will discuss whether the dog owner knew or should have known of a danger presented by the dog. The answer usually lies with the dogs’ past behavior. If the injury is a bite, & you can find any evidence that without provocation the dog had bitten, snapped, or lunged at anyone before, then you have gone a long way toward establishing a good claim. If the dog is of a “fighting breed”, you may be able to recover compensation even though you can’t prove any prior incidents of actual biting or snapping at humans. If your injury was caused by a dog jumping up & knocking you over, evidence that the dog frequently jumps up is enough, whether or not anyone has been knocked down before. If the dog is large, that too should make the owner aware of the danger, especially to small or unsteady people & if an accident was caused by an animal running into street, the fact that it has run out into the street before but the owner still lets the animal loose is good evidence of liability by the owner. Accidents also occur when vehicles run into farm or ranch animals that have wandered onto a road. Generally, an owner is liable for accidents caused by an animal that stays beyond the confines of the farm or ranch property.

              However, if the animal is being herded along or across a road that has signs warning that animals are lawfully present, it may be the driver who is responsible for an accident. If the animal is part of a working farm or ranch, the owner’s business liability insurance will deal with the accident. If the animal is not part of a business, then the property owner’s home insurance should handle the claim. 

Liability in Specific Types of Accidents

            There are no magic formulas or special language you have to master to show why someone was at fault in any particular kind of accident. All you have to bear in mind are the general rules of liability discussed in the first section of this post. You need only make a reasonable, commonsense argument about why a person or business was careless in acting or failing to act, and how that negligence caused the accident that injured you. And in accidents caused by defective products, you need not show any negligence on the part of the product’s maker or seller. Instead, you need to show only that you used the product in a normal way and that the defective or dangerous part of the product caused your injuries. The rest of this chapter discusses how these general rules are applied in specific types of accidents.

Remember, though, that an insurance adjuster might claim that you, too, were negligent, or that you were using a product improperly. So, when you think about the facts of your accident consider how the insurance company will view your actions and begin to plan your responses.

Car Accidents

Anyone who drives or rides in a car long enough is likely to be involved in at least a minor fender-bender. And on our crowded streets, pedestrians, too, are often involved in accidents with buses, cars, and bikes. The rules regarding liability for vehicle accidents apply both to injury claims and to claims for damage to your vehicle. Anyone who rides a bicycle or motorcycle knows that the roads are even more dangerous for two-wheelers than for cars. Also, special rules of the road apply only to two-wheelers. If you had an accident riding a two-wheel vehicle, your claim is given special attention below, in “Special Issues for Bicycles and Motorcycles.” But before turning to that section, familiarize yourself with the information in this section about vehicle accidents in general.

Special Rules for No-Fault policyholders

                About a dozen states have some form of no-fault (also called Personal Injury Protection) auto insurance.No-fault insurance is intended to prevent people with minor auto accident injuries from filing claims for any damages other than their property damage and medical bills, like pain and suffering. However, every no-fault plan permits claims for damages beyond medical bills in some circumstances. To see if you’re no-fault policy affects how you can make an auto accident injury claim. If you are covered by a no-fault policy that allows you to file a claim for damages against the person who was at fault for your accident, proceed against that person as explained here, exactly the same as if you did not have no-fault coverage.

Where to find help in showing fault

              Your argument to an insurance company that the other driver was at least partially at fault can be strengthened if you can find some official support that the other driver violated one or more rules of the road.

Vehicle code. One place to look for support for your argument that the other driver was at fault is in the laws that govern driving in your state, usually called the state vehicle code. A simplified version of these laws, sometimes called “The Rules of the Road,” is often available at your local department of motor vehicles office. The complete vehicle code is also available at many local department of motor vehicles offices, most public libraries, and all law libraries, and often online. There is a law library at or near every courthouse and at all law schools. In the index at the end of the last volume of the vehicle code are references to many rules of the road, one or more of which might apply to your accident. A librarian may be willing to help you with your search, so don’t be afraid to ask. If you believe a rule might apply to your accident, copy not only its exact wording but also the vehicle code section number so that you can refer to it when you negotiate a settlement of your claim.

Rule violations that always mean liability. Many rules of the road are subject to debate with insurance companies: Did the other driver really violate the rule? Did the rule really apply in your case? Did the rule violation actually cause the accident? But there are a few situations in which the other driver is almost always found to be at fault, and insurance companies don’t even bother to argue about it.

Rear-end collision. If someone hits you from behind, it is virtually always his or her fault, regardless of the reason you stopped. A basic rule of the road requires that you be able to stop safely if a vehicle stops ahead of you. If you

Cannot stop, you are not driving as safely as the person in front of you. The other surefire part of a rear-end accident

Claim is that the car’s damage proves how the accident happened. If the other car’s front end and your car’s rear end are both damaged, there’s no doubt that you were struck from the rear. In some situations, both you and the car behind you will be stopped when a third car runs into the car behind you and pushes it into the rear of your car. In that case, it is the driver of the third car who is at fault and against whose liability insurance you would file a claim. However, even if you have been rear-ended, in a few circumstances your own carelessness may reduce your compensation under the rule of comparative negligence. A common example is when one or both brake or tail lights were out, especially if the accident happened at night. Another example is when a car had mechanical problems but the driver failed to move it fully to the side of the road.

Left turn accident. A vehicle making a left turn is almost always liable to a vehicle coming straight in the other direction. Exceptions to this near-automatic liability can occur if:

• The vehicle going straight was going much too fast, but that is usually difficult to prove; it would mean only that the other vehicle had some comparative liability, not that the turning vehicle could escape responsibility altogether

• The vehicle going straight went through a red light, but that is also very difficult to prove unless there were witnesses outside two vehicles who saw the accident clearly, and

• The left-turn vehicle began its turn when it was safe but something unexpected happened that made it have to slow down or stop its turn. Nonetheless, the law says the vehicle making the left turn must wait until it can safely complete the turn before moving in front of oncoming traffic. Also, as with a rear-end collision, the location of the damage on the vehicles sometimes makes it difficult for the other driver to argue that the accident happened in some way other than during a left turn. So, if you have had an accident in which you ran into someone who was making a left turn in front of you, almost all other considerations of fault go out the window, and the other driver is nearly always fully liable.