If my children were involved in a car accident with their dad, canI sue the at fault driver on their behalf?

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If my children were involved in a car accident with their dad, canI sue the at fault driver on their behalf?

We are not married His insurance policy lapsed 4 days prior to the accident. Is there a way I can seek damages on my children’s behalf? The other driver was at fault.

Asked on January 4, 2012 under Accident Law, Louisiana

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

When you say, "His insurance policy lapsed...", Are you referring to the at-fault driver or your childrens' father? 

If the at-fault driver had auto insurance, a personal injury claim for each child can be filed with the at-fault driver's insurance carrier.

If the at-fault driver did not have insurance, but your childrens' father had uninsured motorist coverage on his policy, the personal injury claims of your children can be filed with their father's auto insurance.

If the at-fault driver did not have auto insurance and the childrens' father did not have uninsured motorist coverage, then the recourse would be to sue the at-fault driver for negligence on behalf of your children.  You will need to be appointed guardian ad litem to file a lawsuit on behalf of your children since minors cannot file a lawsuit.

It would be premature to file a lawsuit until your children complete their medical treatment and are released by the doctor or are declared to be permanent and stationary which means reaching a point where no further improvement is anticipated so that you will know each child's total medical bills and have each child's final medical report.  When each child completes his/her medical treatment and is released by the doctor or is declared to be permanent and stationary, obtain the medical bills and medical reports.  Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of each child's injuries and will be used to determine compensation for pain and suffering which is an amount in addition to the medical bills.

If the at-fault driver has auto insurance or if not if the father has uninsured motorist coverage, file each child's personal injury claim with the at-fault driver's insurance or if no insurance with the father's insurance company as an uninsured motorist claim.  The personal injury claims will consist of the medical bills and medical reports.  Each child's claim is handled separately.  If you and the father of your children are dissatisfied with settlement offers from the insurance company, you can reject the settlement offers and sue the at-fault driver for negligence.  If the case(s) is/are settled with the insurance company, NO lawsuit is filed.  If the case(s) is/are NOT settled with the insurance company, your lawsuit for negligence against the at-fault driver and registered owner if the registered owner is someone other than the driver, must be filed prior to the expiration of the applicable statute of limitations or your children will lose their rights forever in the matter.  Your lawsuit would only be on behalf of the children whose cases were not settled with the insurance company.  You would file one lawsuit naming the children as plaintiffs.  Again, you need to be appointed guardian ad litem to file a lawsuit on behalf of your children.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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