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Minorsettlementsfinalapril-2012.Pdf Timothy W. Waldeck, Esq. Waldeck Law Firm, P.A. (612) 375-1550 [email protected] Jeffrey V. Hill, Esq. Hill-Lamb LLP (971) 373-8800 [email protected] Frank L. Napolitani Eagle International Associates, Inc. (888) 313-2661 (702) 221-1399 [email protected] David A. Abrams, New Jersey Leland Eugene Backus, Nevada Mario C. Ciano, Ohio Alex J. Hagan, North Carolina Jeffrey V. Hill, Oregon David D. Hudgins, Virginia Pierre Humblet, Belgium Dale Jones, Louisiana David M. Macdonald, Texas Frank L. Napolitani, Nevada M. B. “Burt” Satcher, III, Georgia John W. VanDenburgh, New York Timothy W. Waldeck, Minnesota Immediate Past Chair: John E. Cuttino EAGLE INTERNATIONAL ASSOCIATES, INC. April 2012 Dear Clients: Minor Settlements from Alabama to Wyoming is a compilation of the 50 states and District of Columbia’s statues and rules concerning Minors. Eagle members for all states contributed to this publication. This is an example of the collective efforts of Eagle providing both service and benefits to clients. We hope that you will find this booklet informative and useful in your respective practices and businesses. We invite you to contact any Eagle member with questions or comments. With best wishes! The Members of Eagle International Associates, Inc. IMPORTANT NOTICE: This publication is intended to provide general information and guidance regarding the included subject matter. The content of this publication does not constitute legal advice or opinion and should not be construed or treated as such. Although efforts have been made to provide accurate information, Eagle International Associates, Inc. and its member firms do not assume, and expressly disclaim, responsibility for any person’s reliance on the information contained herein. You should independently verify the information set forth herein before using it for yourself or on behalf of a client. For specific legal questions that you may have concerning matters in a particular jurisdiction, you are advised to consult the Eagle member firm or other attorneys admitted in that jurisdiction or contact Eagle International Associates, Inc. at 888-313-2661 for a referral. TABLE OF CONTENTS Page Page Alabama 1 Missouri 22 Alaska 1 Montana 23 Arizona 2 Nebraska 24 Arkansas 3 Nevada 24 California 3 New Hampshire 27 Colorado 4 New Jersey 27 Connecticut 5 New Mexico 28 Delaware 6 New York 29 District of Columbia 8 North Carolina 32 Florida 8 North Dakota 33 Georgia 10 Ohio 34 Hawaii 11 Oklahoma 35 Idaho 11 Oregon 37 Illinois 12 Pennsylvania 38 Indiana 13 Rhode Island 39 Iowa 14 South Carolina 40 Kansas 14 South Dakota 40 Kentucky 15 Tennessee 41 Louisiana 16 Texas 42 Maine 17 Utah 43 Maryland 17 Vermont 43 Massachusetts 18 Virginia 44 Michigan 19 Washington 44 Minnesota 20 West Virginia 46 Mississippi 21 Wisconsin 49 Wyoming 49 ALABAMA In Alabama, settlements on behalf of minors are commonly referred to as “pro-ami settlements”. Such settlements are governed by Rule 17(c) of the Alabama Rules of Civil Procedure. The minor is not bound by a settlement and release of his claim by the next friend, minor’s parent, minor’s attorney, or a guardian ad litem. The only effective settlement of a minor’s claim is achieved by court approval of the settlement regardless of proposed settlement amount. This is accomplished by notifying the court of the proposed settlement and requesting that the court approve the settlement after a hearing. A minor’s settlement is binding and enforceable, where a court, after hearing the facts, determines that the proposed settlement is in the minor’s best interest. The court enters a judgment approving the settlement. It is not necessary for the court to appoint a guardian ad litem if the minor’ interests are represented by counsel, and if the minor’s representative has no conflict of interest. However, courts routinely appoint guardian ad litems to represent the interests of the minor during the pro ami settlement proceeding. Attorney’s fees are also subject to court approval in a pro-ami settlement. The court, using its discretion, determines a reasonable fee for the guardian ad litem’s representation of the minor. Unless otherwise agreed upon, the courts generally tax the guardian ad litem’s fees on the defendant. Contributed by William Scott (AL) 205-967-9675 ([email protected]) ALASKA In Alaska, the age of majority is eighteen. AS 25.20.010. Minor settlements in Alaska are governed by Alaska Rule of Civil Procedure 90.2. It provides that a parent or guardian of a minor has the power to execute a full release, covenant not to sue, or stipulation of entry of judgment on the minor’s claim; however, the document will only be effective once a court has approved it. Rule 90.2. In order to get court approval, a petition or motion must be filed. Rule 90.2(a)(2). It must state: (1) The minor’s date of birth; (2) the relationship between the moving party and the minor; (3) the circumstances of the claim; (4) the amount of applicable liability insurance; and, (5) the basis for determining that the settlement is fair and reasonable. Further, if the settlement involves a personal injury claim, the motion must also describe the extent of the injuries, the medical treatment provided, and the 1 probable course of future treatment. Where the settlement involves a claim of $25,000 or less (exclusive of attorney fees and costs), the court can approve the settlement without holding a hearing. Rule 90.2(a)(3). Finally, if the minor is represented by counsel, the court must also preapprove the amount of attorney fees and costs payable from the settlement proceeds. Once a court has held the hearing on the reasonableness of the settlement, the court must order that reasonable expenses, costs, and attorney’s fees be paid from the settlement. Reasonable expenses include, but are not limited to, medical expenses and reimbursement to a parent, guardian or conservator. After payment of reasonable expenses, the remaining balance must “be disposed of in a manner which benefits the best interests of the minor.” ARCP 90.2(b)(2). That provision also describes possible appropriate dispositions of the remaining balance (establishment of a trust, appointment of a conservator to hold the proceeds, transfer to a custodian for the benefit of the minor under the Alaska Uniform Transfers to Minors Act.). A master appointed in probate proceedings has authority to conduct the hearing, recommend that the settlement be approved, receive proof of proper disposition of the proceeds, and issue orders approving appropriate withdrawals from the funds; however, a judge must still approve the settlement. Rule 90.2(c). Contributed by Jeff Hill (OR) 503-417-1104 ([email protected]) ARIZONA Ariz. Rev. Stat. §14-5401 et. seq. Court approval is required for settlements of $10,000 or more. (see, Ariz. Rev. Stat. § 14-5103.) For venue requirements, see Ariz. Rev. Stat. § 14-5403. A guardian ad litem is not required but if the court determines that the interests of the minor are or may be inadequately represented, it shall appoint an attorney to represent the minor. (Ariz. Rev. Stat. § 14-5407.) For settlements of $10,000 or more, a conservatorship hearing or court order is required. (See, generally, Ariz. Rev. Stat § 14-5401.) For Notice requirements, see Ariz. Rev. Stat. § 14-5405. Contributed by Jack Storer (AZ) 602-776-5690 ([email protected]) 2 ARKANSAS The age of majority in Arkansas is 18. Ark. Code Ann. § 9-25-101(a). Minor settlements are governed, generally, by Ark. Code Ann. § 28-65-318(a). In order to effectively settle a personal injury claim of a minor, a guardian must be appointed and the probate division of the circuit court petitioned for approval of the settlement. Ark. Code Ann. § 28-65-318(a). Necessary pleadings and orders for probate approval include a petition for appointment of a guardian, an order appointing the guardian, a petition from the guardian to the court for authority to settle the claim, and an order authorizing settlement of the claim. Most probate judges require a hearing at which the petition is considered and evidence is heard regarding whether the settlement is in the best interest of the minor. Ark. Code Ann. § 28-65-502 allows the circuit court to dispense with a guardianship when the minor’s estate does not exceed $5,000. In such cases, the circuit judge may issue an order dispensing with a guardianship and approving the settlement. Contributed by Jason Campbell (AR) 501-372-1887 ([email protected]) CALIFORNIA Under California law, when a minor is a party to an action or proceeding, that minor shall appear either by a guardian or a guardian ad litem appointed by the court in which the action or proceeding is pending. [CCP §372] There is no monetary threshold when a minor’s claim can be settled without approval by the court. To be enforceable in California, the settlement of a minor’s claim can only be consummated with court approval. [Prob.C. §§2504, 3500, 3600 et seq.; CCP §372] For this purpose, a petition for approval must be filed with the court. Until the petition is approved by the court, there is no final settlement. Any settlement agreement is therefore voidable by the minor’s guardian ad litem. [Scruton v. Korean Air Lines Co., Ltd. (1995) 39 CA4th 1596, 1603-1605, 46 CR2d 638, 641-642.] The petition for court approval of a minor’s compromise under CCP §372 must comply with CRC (Probate Rules) 7.950, 7.950.5, 7.951 and 7.952. It is mandatory that the petition be prepared on Judicial Council form MC-350.
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