Child Day Care Injuries Edited by Kenneth Vercammen, Esq. If your child is injured due to careless or reckless conduct by a child day care facility and suffer a serious or permanent injury, you child may be able to receive a financial settlement. All money will be held until they are age 18 to be used for college, or other uses.
It is the duty of every business to properly and adequately inspect, maintain and keep the outside property and inside premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the child day care facility, be caused to fall down. If the business did not perform their duty to an injured person to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury. Settlements of Minor's Personal Injury Cases If a child is seriously injured in a car accident, fall down, dog bite or other case arising out of the negligence of another, a Complaint must be filed in the Superior Court. If someone is injured, they should consult a personal injury attorney immediately. If Kenneth Vercammen's Law office accepts a Personal Injury case, we must complete the investigation. This will involve the collection of information from your physician, your Family, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and a mandatory medical report. Financial Recovery for minors injured- Kenneth Vercammen Helps Injured persons A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against an opposing party. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a Summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an "Answer" within 35 days. Usually, one of the parents is appointed as the Guardian Ad Litem on behalf of the minor child. In our Complaint, we include the following language that has been approved by the court in many of our prior personal injury cases:
GUARDIAN AD LITEM CERTIFICATE I, __________________________, hereby certify as follows: 1. The plaintiff, **, is an infant of the age of nine years. 2. ** is the Father of the infant plaintiff. 3. ** does not have any interest in this action, contrary to the interest of the said infant plaintiff. 4. The said ** has consented to act as Guardian ad Litem of the said ** in this action. 5. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: ____________________________ If the case is settled prior to trial, the Court must hold a "Friendly hearing." Kenneth Vercammen's Legal fee will be reduced from 33% to 25% if he is able to settle the case prior to trial. The plaintiff's attorney will prepare the following: 1. Order Approving Minor's Settlement 2. Doctor's Certification 3. Release 4. Settlement Statement 5. Child support/ Charles Jones search form 6. Correspondence to Court and defendants' attorneys The following are the Court Rules requiring a family member to act on behalf of the minor: 4:26-2. Minor or Mentally Incapacitated Person (a) Representation by Guardian. Except as otherwise provided by law or R. 4:26-3 (virtual representation), a minor or mentally incapacitated person shall be represented in an action by the guardian of either the person or the property, appointed in this State, or if no such guardian has been appointed or a conflict of interest exists between guardian and ward or for other good cause, by a guardian ad litem appointed by the court in accordance with paragraph (b) of this rule. (b) Appointment of Guardian Ad Litem. (1) Appointment of Parent in Negligence Actions. In negligence actions, unless the court otherwise directs, a parent of a minor or mentally incapacitated person shall be deemed to be appointed guardian ad litem of the child without court order upon the filing of a pleading or certificate signed by an attorney stating the parental relationship, the child's status and, if a minor, the age, the parent's consent to act as guardian ad litem and the absence of a conflict of interest between parent and child. (2) Appointment on Petition. The court may appoint a guardian ad litem for a minor or an alleged mentally incapacitated person, upon the verified petition of a friend on his or her behalf. In an action in which the fiduciary seeks to have the account settled or has a personal interest in the matter, the petition shall state whether or not the guardian ad litem therein nominated was proposed by the fiduciary or the fiduciary's attorney. Each petition shall be accompanied by the sworn consent of the proposed guardian ad litem, stating his or her relationship to the minor or alleged mentally incapacitated person and certifying that he or she has no interest in the litigation, or if such interest exists, setting forth the nature thereof, and that he or she will with undivided fidelity perform the duties of guardian ad litem, if appointed. The court shall appoint the guardian ad litem so proposed unless it finds good cause for not doing so, in which case it shall afford the
petitioner opportunity to file a new petition seeking the appointment of another person within 10 days of the rejection. If such new petition is not filed within such time, or if filed, is not granted, the court, when designating some other person as guardian ad litem, shall state for the record its reasons for rejecting petitioner's nominee. A conflict of interest between the petitioner and the minor or alleged mentally incapacitated person shall be good cause for rejection of the petitioner's nominee. Only one guardian ad litem shall be appointed for all minors or alleged mentally incapacitated persons unless a conflict of interest exists. (3) Appointment on Party's Motion. On motion by a party to the action, the court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person if no petition has been filed and either default has been entered by the clerk or, in a summary action brought pursuant to R. 4:67 or in a probate action, 10 days have elapsed after service of the order. Notice of the motion shall be served at least 10 days before the return date fixed therein upon the appropriate persons designated in R. 4:4-4(a)(1)(2)(3) or (c) either personally, at the time of service of process or thereafter, or by registered or certified mail, return receipt requested. The court on ex parte motion may, in lieu thereof, fix such notice of the motion, given to such persons in such manner as it deems appropriate. (4) Appointment on Court's Motion. The court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person on its own motion. 4:44-1. Venue; Filing Actions brought in the Superior Court on behalf of a minor or mentally incapacitated person, instituted without process, for the purpose of obtaining the court's approval of a settlement shall be brought in any county in which the venue might be laid under R. 4:32, and in such actions in the Superior Court, the papers shall, unless the court otherwise orders, be filed with the deputy clerk of the Superior Court in the county of venue before the hearing on the application for approval. 4:44-2. Medical Testimony at the Friendly hearing is required Medical testimony as to the injuries of a minor or mentally incapacitated person given in proceedings to obtain the approval of a settlement shall be that of the attending or consulting physician and may be submitted by affidavit unless the court, for good cause shown, permits the testimony of other medical experts or in its discretion requires the physician's personal appearance. The following is a portion of a form Kenneth Vercammen's Law office successfully used in a car accident leg fracture case: KENNETH A. VERCAMMEN 2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500 Attorney for Plaintiff _________ , Guardian ad Litem for _________ Plaintiff
vs. _________ Defendants SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MIDDLESEX COUNTY DOCKET NO. MID-L-_________ Civil Action ORDER APPROVING MINOR'S SETTLEMENTS STATE OF NEW JERSEY: SS: COUNTY OF ___________________: I, _________, being duly sworn says: 1. I am a permanent resident of this State and a physician licensed to practice medicine in the State of New Jersey. I am and have been in the actual practice of medicine since __________, which includes my residency training. I graduated from _______________________ and have been licensed in New Jersey for ______ years. 2. I am not a relative either through blood or marriage of the plaintiff. 3. I treated the plaintiff for injuries arising out of an accident on _________ 4. The diagnosis from my records is: _________ 5. The injury has healed well. 6. The plaintiff has been released and is no longer treating. 7. There is no prognosis of permanent injury. 8. A copy of my bill is attached listing the dates I performed services. The bill was submitted to insurance and I have been paid. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. ____________________________ Sworn and subscribed to before me this day of , _____________________________ notary Letter to Doctor Dr. ___________ Re: Name of injured person/ plaintiff: ___________ Name of defendant: ___________ Date of Accident: M___________ Docket No.: ___________ Friendly hearing Affidavit needed. Dear ___________ : Please be advised that I represent ___________ , who was your patient. Pursuant to the Rules of Court, I must obtain the Affidavit of the physician verifying that the minor is finished with treatment. I hereby request that you execute the enclosed Affidavit. Please sign same and have your signature notarized. Please further be advised that I am under Court deadline to submit your Affidavit to the court. Please contact my office to confirm that you will be able to execute the enclosed Affidavit. Very truly yours, KENNETH A. VERCAMMEN KAV/ Enclosure: 4:443. Friendly Hearing; Order; Expenses All proceedings to enter a judgment to consummate a settlement in matters involving minors and mentally incapacitated persons shall be heard by the court without a jury. The court shall determine whether
the settlement is fair and reasonable as to its amount and terms. In the case of a structured settlement providing for deferral of all or part of the proceeds thereof, the court shall also satisfy itself, based on the financial security of the obligor or surety and such other relevant facts as may be adduced, of the reasonable certainty that all future payments will be made as proposed by the settlement. If the court approves the settlement it shall enter an order reciting the action taken and directing the appropriate judgment in accordance with R. 4:48A, whose provisions shall also apply to deferred payments under structured settlements. The court, on the request of the claimant or the claimant's attorney or on its own motion, may approve the expenses incident to the litigation, including attorney's fees. If the fees of the attorney representing the guardian ad litem are to be paid by the defendant, the defendant shall upon the court's request make available to it defendant's complete file in the action. Form letter to court to schedule friendly: Superior Court of New Jersey Law Division PO Box 2633 New Brunswick, NJ 08903 ATTN. Civil Assignment Re: ________ Docket No. MID - L ________ Request for Friendly Dear Civil: I am the attorney for the plaintiff in the above matter. I spoke with _______ on March 4 regarding scheduling a Friendly Hearing. Please schedule a Friendly Hearing for ________ We are settling for the Policy limits, minus the cost of travel and air fair from ________ Very truly yours, KENNETH VERCAMMEN Form of Order submitted to the Court. The Court will make changes to the form of Order: KENNETH VERCAMMEN & ASSOCIATES, PC 2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500 Attorney for Plaintiff ____________ , Guardian ad Litem for ____________ Plaintiff vs. ____________, Defendants SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MIDDLESEX COUNTY DOCKET NO. MID-L-____________ Civil Action ORDER APPROVING MINOR'S SETTLEMENTS This matter having been presented to Court by Kenneth A. Vercammen, Esq., attorney for the plaintiffs, and _______, Esq. attorney for defendants _____________ and ____________ Esq. for defendant ____________, and the Court having read the medical affidavit of ____________, observed the photos of scars on the infant, and having heard testimony regarding the injury and medical treatment, and having heard testimony of the plaintiff's father, ____________, and the Court being satisfied that the consent judgment is proper and appropriate; It is on this _______ day of _____________________, ORDERED that judgment be entered in favor of ____________, an infant, by his Guardian and Litem, ____________, in the amount of $4,000, against defendant ____________, and further ORDERED that judgment be entered in favor of ____________, an infant, by his Guardian and Litem,
____________, in the amount of $96,000 , against defendant, __________. Disbursements in the following amounts: SUPERIOR COURT OF NEW JERSEY- $200 all to be deducted from the infant's portion of the judgment and paid to the Law Office of Kenneth A. Vercammen, Esq., Attorney for Plaintiff, is hereby approved. payment of $__________ shall be delivered to the Law Office of Kenneth A. Vercammen by ___________________ IT IS FURTHER ORDERED that the funds shall be deposited with the Middlesex County Surrogate to be held in that account until ____________ turns the age of eighteen (18) or further ordered by this court. ___________________________ , J.S.C The 2007 case of In NICHOLAS IMPINK, a minor by his parent and natural guardian, SHANNON BALDI and SHANNON BALDI, individually, Plaintiffs-Respondents, v. DAVID REYNES, NEIL B. REYNES and MARIA A. REYNES, explained the procedure for settlement of children’s cases. Defendants-Appellants. November 29, 2007 APPROVED FOR PUBLICATION THE APPELLATE DIVISION WROTE:
With respect to the settlement of matters involving
minors, the courts derive their powers initially from R. 4:44-3. That rule directs courts to "determine whether the settlement is fair and reasonable as to its amount and terms." R. 4:44-3. The courts, therefore, are charged with determining whether a proposed settlement presented to it as the agreement of the parties is fair and reasonable to the infant-plaintiff. The court then is to be presented with an agreement for review and approval or rejection. The rule was developed because the law is solicitous of infants. Riemer v. St. Clare's Riverside Med. Ctr., 300 N.J. Super. 101, 110 (App. Div.), certif. denied, 152 N.J. 188 (1997). "That is the reason underlying the legal requirement of judicial approval of an infant settlement by way of a 'friendly' hearing." Ibid. The reason for the rule is to assure that an infant's interest be protected and that the settling defendant is afforded some measure of repose. Ibid. The judge's role at such a hearing is to assess "whether the proffered settlement is commensurate with the settling
defendant's liability and, if so, whether it adequately compensates the infant for his past, present and future losses attributable to that defendant." Id. at 111. The trial court, after assessing these factors, then must make a determination whether the proposed settlement, as advanced by the parties, is fair and reasonable. If the court is not satisfied with the terms of a settlement, it can reject the settlement or make suggestions to the parties regarding its concerns and how they might be addressed. However, if the parties do not consent to such suggestions, the court's parens patriae jurisdiction, as evidenced in the rule, does not authorize it to require one party to the settlement contract to accept a change in the settlement terms without its consent. Allen v. World Inspection Network Int'l, Inc., 389 N.J. Super. 115, 122 (App. Div. 2006) ("A court of equity cannot abrogate a contract based only on the judge's sense that a provision is unfair."). There is authority for the proposition that the inherent jurisdiction of the court to protect children is more extensive than the grants conferred by statute. See Ivaldi v. Ivaldi, 288 N.J. Super. 575, 588 (App. Div.), rev’d on other grounds, 147 N.J. 190 (1996). However, that broad grant of inherent power does not, in this instance, permit the court to require a nonconsenting party to a contract to accept a different term than the one to which it agreed. A court's parens patriae powers over a minor's estate is embodied in N.J.S.A. 3B:12-49, which states in pertinent part, "The court has, for the benefit of the ward, . . . all the powers over the ward's estate and affairs which he could exercise, if present and not under a disability . . . ." The court's parens patriae powers are to act for the minor with respect to the minor's estate and affairs. It confers only the powers the minor would have, if he were an adult, over his affairs and not authority to affect the vested, legitimate, and enforceable contract rights of third parties. In this case, the infant-plaintiff, if he were not suffering from the legal disability of infancy, would not be permitted by a court to change the terms of a bargained-for contract. Consequently, neither does the court, standing in his shoes, have the power to draft a better settlement. Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 (2005) ("Equitable relief is not available merely because enforcement of the contract causes hardship to one of the parties."); Dunkin' Donuts, supra, 100 N.J. at 183. One term the parties
agreed upon was a "cash" payment to the plaintiffs and not a structure. If the court found that term to be neither fair nor reasonable to the minor, the court's parens patriae prerogative is outlined clearly in R. 4:44-3 -- it may reject the settlement as not adequately addressing and protecting the minor's interest. Friendlies and the Surrogate’s Intermingled Trust Fund Rule 4:44 requires court approval of a settlement on behalf of a minor or mentally incapacitated person (previously referred to as an “incompetent”). The majority of settlements paid on behalf of minors and incapacitated individuals are paid into the Surrogate’s Intermingled Trust Fund (SITF). Whenever the proceeds of such a settlement are to be paid into the SITF, a uniform order for judgment form must be used. Before scheduling a friendly hearing seeking approval of a settlement on behalf of a minor or mentally incapacitated individual, counsel should contact the county surrogate and ensure that the surrogate has reviewed and approved the proposed completed order for judgment form. If you have a personal injury, call KENNETH A. VERCAMMEN, ESQ. 732-572-0500 for a confidential in-office appointment About Kenneth Vercammen: Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges. In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitrations and contested administrative law hearings. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate Thomas Hart in Scranton, PA.