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38 U. Colo. L. Rev. 377 (1965-1966)
Settling the Personal Injury Claim of a Minor

handle is hein.journals/ucollr38 and id is 409 raw text is: SETTLING THE PERSONAL INJURY CLAIM OF A MINOR The law generally favors the settlement and compromise of litigation. Not only can the parties themselves reach an agreement as satisfactory as the courts could decree, but the private action helps to reduce crowded court dockets. Thus, compromise agreements are upheld as determinative of the rights of the parties unless one of the grounds traditionally held sufficient for the rescission of a contract is present-fraud or mutual mis- take of a material fact. However, when one is dealing with the personal injury claim of a minor, another policy is involved and must be taken into consideration. The law seeks to prevent anyone from taking advantage of a minor be- cause of his immaturity and inexperience. Thus in contract law the rule is well established that the contract of a minor is voidable at his option. When dealing with the personal injury claim of a minor the same policy is reflected in court decisions permitting the minor to set aside any settle- ment produced by methods which the courts feel inadequately protect his interests. It is universally recognized that the execution of a release by the minor himself is insufficient to bind the minor to the terms of the attempted settlement. Not only may the minor be unaware of the monetary value of his injury, but his bargaining ability is inferior to that of the skilled in- surance agent. It is also recognized that the execution of a release by the parent of the minor is insufficient to bind the minor to the terms of the attempted settlement. The basis of the rule is that the rights arising from the injury belong to the minor personally, and the parent as only natural guardian has no legal authority to affect those rights. The law has stated this rule to implement again the policy of protection of the minor's rights. If the minor is to be bound by the settlement of his claim, the law wants to make sure that his claim was adequately asserted. The only method which the courts have been willing to find effective to guarantee the protection of the minor is a judicial proceeding of some kind. Traditionally this has involved either the so-called friendly suit or the establishment of a guardianship estate. Both methods increase the costs of a settlement since the services of an attorney must be obtained and in the case of the guardianship estate there are bonding costs for the guardian, compensation for the guardian, and requirements for periodic accounting. These expenses will, at least theoretically, reduce the ultimate worth of the settlement. Because of the objections to the traditional judicial proceeding, the insurance companies have made wide use of another method of settlement -the parent's release coupled with an indemnity clause. The rationale of this method is that even though the minor can legally set aside the settle- ment on reaching his majority, he will be unlikely to do so since any pay-

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