What to do if my now 16 year old son had an accident using a defective sporting aid product 13 months ago?

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What to do if my now 16 year old son had an accident using a defective sporting aid product 13 months ago?

When we contacted the company they said they would take full responsibility. When we contacted the insurance company they said we could not submit the billing overtime but had to do a lump sum settlement once the all the medical issues were fixed and billed. Now that we are done and submitted the request to settle letter with all the accompanying bills and documentation the insurance company seems to be stalling. My wife and I started to think there maybe a statute of limitations they are trying to meet by using a stall tactic. Since my son was underage I am not sure if this would qualify for the 2 year limitation here.

Asked on May 22, 2013 under Personal Injury, Virginia

Answers:

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

Answered 9 years ago | Contributor

Your son's personal injury claim should be filed with the insurance carrier of the manufacturer of the product as you have done and with the insurance carrier for the seller (store where the product was purchased).  The seller (store) is liable even if it could not have known that the product was defective.

Since your son is a minor, the two year statute of limitations in VA for a personal injury case doesn't start to run until he is an adult at age 18.  Therefore, he has until age 20 before the statute of limitations expires.

Your son's settlement should include compensation for the medical bills and compensation for pain and suffering.  Compensation for the medical bills is straight reimbursement.  Compensation for pain and suffering is an amount in addition to the medical bills based on the information in the medical reports.

If the case is settled with both insurance carriers (manufacturer and seller), NO lawsuit is filed.

If you are dissatisfied with settlement offers from the insurance carriers, reject the settlement offers and file a lawsuit against both defendants for negligence and strict liability.  Negligence is the failure to exercise due care to produce a product that is not defective.  Strict liability is liability imposed whether or not due care was exercised.  Negligence and strict liability are seperate causes of action (claims) in the lawsuit.  You will need to be appointed guardian ad litem to file a lawsuit on behalf of your son because he is a minor and a minor cannot file a lawsuit himself.

If the case is settled with one of the insurance carriers (manufacturer or seller), but not the other, only name the party with whom the case has not settled as a defendant in the lawsuit.

If you feel that the insurance carrier for the manufacturer is stalling as you mentioned, file the lawsuit; however before doing that see if you can settle your son's claim with the store's insurance carrier.  You still have plenty of time to file the lawsuit since the statute of limitations won't expire until your son is 20.  If the case is NOT settled with both insurance carriers, the lawsuit must be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights forever in the matter.

 

 


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