Child victim could sue insurance company despite earlier settlement

Personal injuries, especially childhood injuries, can have long-lasting effects. The full implications of the injuries may not be immediately apparent at the moment of injury. In addition, more than one party may be responsible for the injury, and it is important to hold every party accountable.

Often, an insurance company will be ultimately responsible for making payment related to the injuries inflicted, but insurance companies will generally look for ways to avoid payment, as seen in the California Court of Appeal case of Barnes v. Western Heritage Insurance Company.

A back injury with lasting impact

The victim was only 11 years old when he was participating in an activity sponsored by an activities council at an elementary school in Shingletown, California. During the activity, a table fell on the child's back. He suffered a back injury, including a contusion and a hematoma on his back. The boy required X-rays, a CT scan, pain medications and physical therapy due to his injuries.

The boy's family submitted a medical expenses claim to the activities council, and the council submitted the claim to their insurance company. The insurance company paid approximately $1,500 to the boy's medical providers.

The family then sued the activities council and Shasta County for the injuries. This lawsuit was settled for approximately another $10,000 and finalized, but did not involve the insurance company.

Several years later, the injury still impacted the way the victim walked or threw a ball in sports activities. He still suffered from pain in his lower back as well. The family had attempted to have a pediatric orthopedic specialist examine the child earlier, but the insurance company had declined the request, stating there was a one-year limit on the insurance policy coverage. The boy, having recently turned 18, brought suit against the insurance company for breach of contract related to his injuries, seeking more than $1 million in damages.

The trial court granted a summary judgment to the insurance company, ending the case before the victim even had his full day in court. The court found that the victim's earlier lawsuit settlement against the county prevented him from bringing the later action against the insurance company for his back injury. The victim appealed.

Could the insurance company still be sued?

The California Court of Appeal held that allowing a separate lawsuit against the insurance company would not lead to an impermissible double recovery for the victim. Although the victim received some payment under the medical payment provision, he was now claiming that the insurance company had wrongly denied him additional coverage.

This was separate from the compensation he had earlier received from the county and other parties for their negligence. Therefore, the victim's lawsuit could proceed against the insurer and he would have his full day in court.

Representing injured children

If your child has suffered a serious injury, you should immediately consult with an experienced child injury lawyer. Often, many of the witnesses will be children, and it is important to take action while recollections are still clear. Seek an attorney who knows how to evaluate the effects of a catastrophic injury and who will pursue the full compensation your child deserves.