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Father's Suit vs. Mother for Daughter's Auto Accident Injuries Reinstated

August 19, 2005

In Curtis Smith v. Lanetta Smith (No. 4-04-1047), a 6-year-old girl's father filed suit against the girl's mother to recover for the girl's injuries in a traffic accident, an appellate court held that the trial court erred in granting the mother's motion to dismiss on the basis that the mother's insurance company already had settled a claim for the girl's injuries and a release was signed by the parties.

Plaintiff Curtis Smith filed suit on behalf of his daughter, Lacanda. He alleged that on Aug. 1, 2002, Lacanda, then 6 years of age, was a passenger in a vehicle driven by her mother, defendant Lanetta Smith, and that Lacanda was injured in a traffic while her mother was driving. The complaint alleged that the defendant's "careless and negligent acts and/or omissions" were a proximate cause of the accident and the girl's injuries.

In June 2003, the defendant filed a motion to dismiss, alleging that after the accident, the defendant asserted a claim on her daughter's behalf against her own insurance coverage with American Family Mutual Insurance Company. The claim for Lacanda's injuries was submitted for payment under the uninsured-motorist-coverage provision of the policy.

The defendant's motion to dismiss stated that the cause of action was settled, the parties were released and Lacanda was compensated for her injuries. The motion sought dismissal of the complaint because it was barred by the release. The defendant attached a copy of a release and trust agreement signed by the defendant in the amount of $ 1,000, releasing and discharging American Family as to all claims resulting from the accident.

In October 2004, the defendant filed an affidavit stating that she was Lacanda's mother, Lacanda's personal estate did not exceed $ 10,000, no representative had been appointed for Lacanda's estate and the defendant was the parent or person standing in loco parentis to Lacanda. The trial court granted the defendant's motion to dismiss, finding that the defendant and her insurance company had reached a settlement under the insurance policy, she executed an affidavit pursuant to the Probate Act and the cause of action had been released or satisfied.

The appeals court reversed. The court said that under Illinois law, a minor is a ward of the court when he or she is involved in litigation and the court has a duty and broad discretion to protect the minor's interests.

In addition, the appeals court said, a parent has no legal right, by virtue of the parental relationship, to settle a minor's cause of action and that court review and approval of a settlement reached by a parent is mandatory. In this case, the appeals court said, the defendant contended that the trial court approved of her settlement with American Family by virtue of the affidavit filed pursuant to Sec. 25-2 of the Probate Act, which provides: "Upon receiving an affidavit that the personal estate of a ward does not exceed $ 10,000 in value, that no representative has been appointed for his estate and that the affiant is a parent or a person standing in loco parentis to the minor..., any person or corporation indebted to or holding personal estate of the ward may pay the amount of the indebtedness or deliver the personal estate to the affiant."

The appeals court rejected this argument and said that this section of Illinois law applies toward the person or corporation indebted to or holding property of a ward. It does not indicate the filing of an affidavit acts as a bypass to the need for court approval of a minor's claim, the appeals court said. "Sec. 25-2 allows the payor to discharge its obligation pursuant to a properly filed affidavit but it does not obviate the need for the court to approve a minor's settlement," the appeals court said.

The appeals court also said that a trial court, whose duty it is to protect the interest of the minor, should see to it that they are not bargained away by those assuming or appointed to represent him. In this case, the appeals court said, the Sec. 25-2 affidavit did not act as the trial court's "stamp of approval." The trial court's order does not show whether the court approved the terms of the settlement or whether it was in the minor's best interest, the appeals court said.

The appeals court also said that the agreement released American Family from all claims and was signed only by the defendant on behalf of her daughter. The release did not identify the defendant as a party subject to the release and parties not specifically identified as subject to the release cannot rely on that release as a defense, the appeals court said.

Because the statutory requirement of court approval was not met and the defendant was not identified as the subject of the release, the trial court erred in granting the defendant's motion to dismiss the plaintiff's complaint, the appeals court said.