Settlement Of Claims Held By Minors In Missouri
Missouri law requires that any settlement of a claim by or on behalf of a minor be approved by the court. The reason for this, of course, is to protect the interests of the minor and to ensure that the minor is not taken advantage of by unscrupulous or unwise adults. Under Missouri law a minor, or an “infant” in the language of the statute, is a person under 18 years of age. (Mo. Rev. Stat. Sec. 507.115). If a minor has a claim to be asserted, the statute of limitations on the claim is tolled until age 21 (Mo. Rev. Stat. Sec. 516.105). With no hurry to file a lawsuit, therefor, the law imposes a stricter scrutiny on a parent’s decision to settle on behalf of their child.
The procedures for obtaining court approval can appear complicated and obtuse. With repetition, however, the practitioner will find that they follow a distinct pattern or formula that is recognized by both attorneys and judges. As these are usually “Friendly Suits”, furthermore, all of the parties and the judge generally cooperate and have similar interests in seeing the matter concluded in a timely, efficient and legal manner.
In a typical case, a child has a claim against a potential defendant. Let us assume that a child is a passenger in a vehicle being driven by her mother that is rear-ended by another driver. Both mother and child require medical care, but have no permanent injuries. With no dispute over liability and no significant damages being claimed, the pro se mother negotiates with the insurer of the other driver and comes to an agreement on the amounts of both her claim and her child’s claim. Naturally, the mother is free to come to an agreement and execute a release on her own claim without court approval. In order to conclude the claim on behalf of her child, however, the mother will have to file a Petition to institute a lawsuit.
Even if no attorneys have been involved up to this stage, the insurer (and perhaps the plaintiff) will retain an attorney to prepare the necessary pleadings and to guide the suit through the court. The minor plaintiff will file a Petition for Approval of Minor Settlement to begin the friendly suit. This is usually, though not always, drafted by the insurer’s attorney. Missouri law generally requires that a lawsuit for personal injuries be filed in the county where the injury occurred. In these friendly suits, however, the parties often will agree to waive the venue issue so that the matter can be brought in a location that is convenient for all of the parties.
The Petition should be brief and should clearly set out the facts, damages, and the terms of settlement. This should include the terms of any agreement regarding attorney fees and costs if the child is not pro se. It should ask the court to find that the proposed settlement is “fair and reasonable and in the best interests of the minor”, and ask the court to approve the settlement.
In addition to the Petition, the attorney should also prepare the following pleadings:
1. A Petition for Appointment as Next Friend. In our example, the mother will be the Next Friend.
2. A Consent to Serve as Next Friend, to be signed by the mother.
3. A Judgment and Order Approving Minor Settlement, to be signed by the Judge. This should include all of the facts, the terms of the settlement and the findings of the court.
4. A Satisfaction of Judgment, to be signed by the Next Friend and her attorney, if not pro se.
5. A Stipulation for Dismissal, to be signed by the Next Friend and her attorney, if not pro se.
6. A Release and Settlement of Claims, to be executed by the Next Friend and her attorney, if not pro se.
After the suit is filed, a hearing must be scheduled at which time the Next Friend will appear and give sworn testimony. Being a friendly suit, this will not be an adversarial proceeding and the attorney should be prepared with a list of leading questions for the mother to answer. The examination should touch on the facts of the underlying incident, the child’s injuries, medical treatment and recovery, the terms of the settlement and the terms of the attorney fees and costs. The Next Friend should also testify that she believes the settlement to be fair and reasonable and in the best interests of the child, and that she is asking the court for approval. The judge will often examine the Next Friend instead of, or in addition to, the attorney.
Once the judge has ruled on the record to approve the minor settlement, all of the documents should be executed and filed with the clerk of the court. The attorney for the insurer should come to the hearing with the settlement check in hand, and if appropriate with a separate check made to the order of the plaintiff’s attorney. The entire proceeding should take no more than 30 minutes.
The scenario described above is quite typical, but there can of course be a variety of circumstances that complicate the proceedings. Both parents will usually have an equal right to approve of the settlement on the minor child’s behalf. If they are not in agreement, then more evidence will have to be produced on the reasonableness of the settlement. Objections voiced by one of the parents, even if not particularly reasonable, can by themselves be sufficient to scuttle an agreement. The more money that is involved, generally, the more likely it is that such objections will arise.