The question might be more appropriately phrased: “Should a child bring a personal injury claim against a parent for negligence in an auto accident?” It comes up more often than one might think as children are often injured in auto accidents as a result of the negligence of the parents.
Auto Liability Policies Cover All Passengers, Including Family Members
Second, auto liability insurance covers passengers. It doesn’t matter that the passenger is a family member or a complete stranger. It covers injuries to both, including injuries to the negligent driver’s children.
Keep in mind that the parent pays for this coverage and therefore should utilize this where coverage is available.The coverage is intended to protect the family. This is what you pay for. There is no need to feel any guilt whatsoever in bringing a claim against the insurance company.
Coverage is There, Use It!
This brings us to the next point. If the child is seriously injured requiring very expensive medical care, what are the options? The issue comes down to who should bear the costs and damages related to the accident, the family or the insurance company to whom premiums have been paid to cover such situations.
Still, parents are reluctant to initiate such a suit for any number of reasons, all of which seem misguided. Clearly, a child is not typically going to contact a personal injury attorney to bring a suit on his or her own while a minor. Again, this would be reflective of the parent’s reluctance to call upon liability insurance for the benefit of the child.
Statute of Limitations Tolled for Minors
The statute of limitations is tolled or suspended for the benefit of minors by statute due the inability of most minors to bring their own claims. The statute, NMSA §37-1-10, reads as follows:
“The times limited for the bringing of actions by the preceding provisions of this chapter shall, in favor of minors and incapacitated persons, be extended so that they shall have one year from and after the termination of such incapacity within which to commence said actions.”
It should be noted that generally the statute applies to minors and incapacitated persons. Minors have no capacity to sue on their own, which is equivalent to legal incapacity. The language regarding “one year from and after the termination of such incapacity” has been construed to be 19 years of age since 18 years of age is considered the age at which minority ends.
New Mexico Jury Instructions Address the Situation
There is a New Mexico Jury Instruction that actually addresses this very situation, UJI §13-1610 Negligence of parent not imputed to child. The jury instruction is short and to the point:
“If you find that the parent was negligent, any such negligence shall not be attributed to the child.”
This means that a jury cannot refuse compensation to a child following a trial due to the negligence of the parent. Nor can an insurance company make this argument, though some may try.
The notes to the jury instruction are particularly helpful here citing several cases and reading:
“In case of injury only to a child, the parent’s negligence is not imputed to the child who can recover in the child’s own right.”
The Parent or the Child May Bring the Claims
The parent can and should initiate the claim on behalf of the child. In the event that the parent fails to do so, the child can bring the claim on his or her own once reaching 18 years of age. In the interim, there a few other options for the child, which are beyond the scope of this article.
The issues here can be quite complicated. There are special rules and laws related to personal injury claims on behalf of children. it is important to seek legal guidance from an experienced personal injury attorney. Collins & Collins, P.C. can be reached in Albuquerque at (505) 242-5958