Legal Question in Personal Injury in California

Re: Wrongful Death and Supporting Dependent

As you are the custodial parent, your suit is on behalf of the child, as guardian ad litem. When you get a settlement or payment of a judgment, you must put the money in a 'blocked' bank account and file annual reports to the court until the child reaches 18. You can apply to the court for permission to use the money for the benefit of the child, such as school tuition, medical, clothes, cars, even such things as remodeling or expanding the home, vacations, etc.

The value of the case is whatever a jury awards, or what the defendants are willing to pay in settlement. The insurance max limit usually is all you will get, as private parties seldom can contribute much to the recovery, unless they have assets above the level of bankruptcy protection. The driver's parents are only liable for $15k max, but should have been named in the suit to get that. If you need help, contact me to discuss.

Re: Wrongful Death and Supporting Dependent

Let me begin by saying how terribly sorry I am to hear about your loss. I wish I could offer more than my condolensces, but the only other thing I can do is to try to answer your question.

First off, you have no standing to sue the insurance company. The company did not injure you or breach a duty to you, so it is not a proper defendant. It presumably owes the driver the duty to defend and indemnify her up to a point, and that duty is triggered when you sue the driver. The insurer will most likely seek -- and obtain -- a judgment in its favor fairly quickly.

It is also not clear that you have any claim against the father. Merely being the owner of a vehicle involved in an accident does not make a person liable to the victim. If the accident had been caused by a mechanical problem he failed to fix then you might have a case, but you wrote that the girl ran a red light and I don't see how that is her father's fault, unless he gave her permission to drive it when he knew she could not safely do so (for example, because she was drunk or because she did not know how to drive the truck). He could also be liable if she was a minor, in which case he will be responsible for her actions but the insurance is unlikely to apply.

While the amount of damages you can obtain will be measured by the extent of your son's loss -- both emotional and financial -- the same cannot be said of the amount you will collect from the insurance company. The amount of any judgment or settlement you receive from the insurance company will be limited by the amount of the policy limits. If the driver had a $25,000 policy then that is all the insurance will pay, no matter how much loss you can prove. Most likely the insurer will pressure you to settle for an amount within the policy limits. You are not required to do so, but if you don't you will have to go through a long and costly process before you obtain a judgment. Even if the judgment is for more than the policy limits, you may find it difficult to collect depending upon how wealthy the driver is. Since you describe her as a "girl" and since she was driving her father's truck, my guess is that she doesn't have substantial assets of her own. She might, but it doesn't seem probable.

When a judgment is entered in favor of a child, there are rules to ensure that the money is there for the child and is not squandered by the parent. It is true that your son will not be able to control the money himself until he is an adult, but that does not mean it will sit in a bank account that whole time while he suffers for lack of funds. With court approval, the funds may be used for his benefit while he is still a child. The court will decide whether your proposed expenditures really are for the child's benefit or not.

Good luck.

Re: Wrongful Death and Supporting Dependent

Sorry to hear about your loss.

If you are a first level beneficiary of the estate, you might have standing to sue on your own . . . but this is a long shot.

As for your son's award, you will have file a motion with the court which takes jurisdiction over your son's trust account. . . The court and the trustee of the court will work to ensure that your son is taken care of.

If you have any further questions please feel free to contact my office. . .