Your minor child—under age 18—has been injured in an auto accident because of someone else’s negligence. Your child sustained bodily injuries and obtained medical treatment. And now you want compensation for your child’s bodily injuries, medical expense, pain, and suffering. How much time do you have to file a lawsuit on behalf of your child? Well, the answer depends on several factors. Was the negligent driver adequately insured? Does that driver’s insurance cover only a fraction of your damages? Or was the other driver uninsured? These all affect how long you have to file the lawsuit on behalf of your minor child, and who you may have to sue.
If the Other Driver Has Adequate Insurance to Cover All the Damages
Let’s suppose that the other driver has adequate insurance to cover all your minor child’s damages. In Ohio, an adult has two years from the date of the car accident to file a lawsuit against the person that caused the accident. But this time period is extended when the injured person is a minor because Ohio law effectively doesn’t start the two-year time period until the minor reaches 18 years of age. This is sometimes referred to as the minor tolling statute. So, for a minor, the lawsuit must be filed within two years after he or she turns 18. But it gets more complicated when the blameworthy driver is uninsured or doesn’t have enough insurance to completely cover your minor child’s injuries and damages.
If the Negligent Driver Is Uninsured or Underinsured
Many people drive without insurance every day. Why? Perhaps they can’t afford it. Maybe they just don’t care. Or they don’t want to spend money on insurance. But maybe their insurance lapsed, and they don’t realize they are uninsured. The bottom line, people drive without insurance. And uninsured motorists will no doubt cause car accidents that result in bodily injury to others.
Some insured motorists may have only minimum coverage, and may be underinsured, depending on the extent of damage caused. An underinsured driver has auto insurance, but the limits of the policy aren’t enough to cover damage caused by that driver. And just as uninsured motorists will cause bodily injury to others, so will underinsured drivers.
What recourse do you have if you or your child are injured by an uninsured or underinsured driver? Well, you can still sue—and no doubt should sue—the responsible person. But that person won’t have insurance coverage. You can get a judgment, but will someone without insurance have any assets for you to execute on? Maybe, maybe not. But if you have uninsured/underinsured motorist (UM/UIM) coverage in your own insurance policy, you may have some protection.
What is UM/UIM coverage? Simply put, it protects you if you happen to get in a car accident with an uninsured or underinsured driver. UM coverage provides compensation for bodily injury and damages caused by an uninsured driver. UIM coverage provides compensation for damages caused by an underinsured driver. The amount of available UIM coverage, if any, depends on the limits of your policy and the limits of the other driver’s liability coverage. Your UIM coverage comes into play if your UIM policy limit exceeds the other driver’s liability coverage.
To be clear, UM/UIM is coverage under your own policy and it’s optional. Ohio law doesn’t require you to have that coverage. If you’re injured by an uninsured/underinsured driver and you have UM/UIM coverage, you must make a claim with your insurance company for it. UM/UIM will cover your minor child’s bodily injury. And if you can’t resolve the claim to your satisfaction, you may have to file a lawsuit against your insurance company.
How Long Does a Minor Have to Sue for UM/UIM Coverage?
Is it the same period that he or she has to file a lawsuit against the culpable driver? Probably not. And for a minor, that time period to sue for UM/UIM coverage may be substantially less than the time to sue the responsible driver.
An insurance policy is a contract between the insurance company and the consumer. That policy dictates under what circumstances and how much the insurance company must pay for any given claim. And that insurance policy can dictate how much time the insured has to sue for coverage under the policy, so long as that period is reasonable. An insurance policy that provides a lawsuit for coverage under a UM/UIM policy must be filed within two years after the car accident has been held to be reasonable.
The Minor Tolling Statute Does Not Affect an Insurance Policy’s Limitations Period
How does the minor tolling statute affect a UM/UIM claim under an insurance policy that provides its own time period to file a lawsuit? Simply put, it doesn’t. The Supreme Court of Ohio held that the minor tolling statute doesn’t toll the period in an insurance policy for persons who are minors at the time of the accident. The minor tolling statute doesn’t extend a contractual limitations period.
So, for example, a twelve-year-old child injured in a car accident has two years from his 18th birthday—nearly eight years from the date of the accident—to sue the other driver. But that same child may have as little as two years from the date of the accident to sue the insurance company providing UM/UIM coverage, if any, all depending on the policy’s language.
This means that a minor may have substantially less time to sue the insurance company for UM/UIM coverage than he or she has to sue the responsible driver. And it’s quite possible that the UM/UIM may be the only source for compensation, so it’s critical for you to be familiar with these limitations periods if the situation arises.
What Should You Do if Your Minor Child Is Injured in A Car Accident?
If you’re minor child is injured in a car accident that’s caused by someone else, make sure the police investigate the crash and prepare a crash report. That report will give you information about the other driver, including the identity of that driver’s insurer, if any.
And carefully read your insurance policy. Check your declarations page. That will tell you if have UM/UIM coverage and the limits of that coverage. Determine if the policy identifies a time period to sue for UM/UIM coverage? And if the other driver was insured, make sure you find out that driver’s liability limit, so you can compare it to your UIM limit. It’s important to know the limits of both your insurance and the other driver’s insurance.
The last thing you want for your injured child is to be denied compensation because you didn’t file a timely lawsuit. And don’t be fooled, your insurer will no doubt look for a way to deny coverage. It will have no problem arguing that a lawsuit is untimely even if it means its own insured is denied coverage for serious injury. Your insurance company will show you no sympathy if you don’t comply with the terms of the policy. So, you want to give the insurance company no reason to deny coverage by filing a lawsuit beyond the time period set forth in your policy.
Lastly, if you ever find yourself in the situation where your minor child has been injured in an auto accident, please call an attorney. These cases are complicated, and you don’t want to hinder your ability to get full compensation for your child. And filing a lawsuit is a daunting task. John Brooks Cameron & Associates is here to help.
This article is for only information purposes. It is not and should not be taken as legal advice. Insurance laws and laws about personal injury are complicated. If you or your child has been in an auto accident, you should contact an attorney for legal advice.