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Rule 17A – Settlement of Claims of Minor Plaintiffs

May 13, 2021 | Civil Procedure, Maine

(a) Motion or Application for Settlement. In any action commenced by or on behalf of a minor, the guardian, guardian ad litem, or next friend of such minor may move the court for an order of approval of settlement. If no action has been commenced on a claim by a minor, any such representative may file an application in any court in which such an action might have been commenced, seeking an order of approval of settlement. The application shall contain a short and plain statement of the claim to be settled. No service of the application and no further pleadings shall be required unless directed by the court.

The motion or application and supporting papers may be prepared by the attorney for an adverse party or by an attorney obtained by an adverse party to represent the interests of the minor.

(b) Supporting Papers. Any motion or application filed in accordance with subdivision (a) of this rule shall be accompanied by:

(1) an affidavit or verified application of the moving party or plaintiff stating the terms of and any reasons for approving the settlement and any fee to be paid to an attorney for the minor and also stating that the movant or plaintiff was informed of the right to attend the hearing upon the motion or application and that the right to attend a hearing is waived, where court action without hearing is sought;
(2) A statement by the moving party or plaintiff describing the age of the minor, the nature of the injuries or damages suffered by the minor, and the facts of the event which led to the injury or damage. This statement shall be in sufficient detail to allow the court to evaluate the injuries or damages in determining whether to approve the settlement. Where the total amount of the proposed settlement exceeds $5,000 or where the attorney who prepared the motion has any connection with a party adverse to the plaintiff, the statement shall have attached to it copies of any police reports, any emergency room reports of the incident and resulting injuries or damages, a statement from a physician indicating the nature of the injuries and expectations for recovery or permanent impairment, and such other reports of the injuries or damages and the incident which caused the injuries or damages as the court may require;
(3) An affidavit of the attorney who prepared the motion or application and the supporting papers stating whether or not the attorney was retained at the instance of, represents, or has any connection with a party adverse to the minor.
(4) Where a defendant is not represented by counsel, a statement signed by the defendant, or a representative of the defendant’s insurer, indicating that the defendant consents to settlement or judgment in the settlement amount; and
(5) A draft proposed order which states all of the financial arrangements of the settlement, allocates the funds as indicated in the settlement, designates a depository of the funds received for the minor and subjects any withdrawals to court approval until the minor reaches majority.
(c) Hearing and Judgment. At the hearing on the motion or application the court may require the moving party or plaintiff, the minor, and any attorney representing the minor to attend, and may make such inquiry as it deems necessary into the circumstances giving rise to the claim, the nature and extent of the damages sustained by the minor, other proceedings concerning the same claim, and any other matters pertinent to the adequacy of the settlement. Under exceptional circumstances the court may appoint a referee under Rule 53 to make such inquiry and to make recommendations thereon. After hearing, the court may approve the settlement or order entry of final judgment in accordance with its terms or may, with the consent of the parties, make such other order as justice may require, including provisions for a trust created for the minor’s benefit and for payments to be made to the minor after age 18. Judgment shall be entered without costs and shall approve the fee for the minor’s attorney, if any.
(d) Custody of Proceeds. The court may order that the proceeds of the settlement be deposited to the credit of the minor with such depository, trustee or custodian and on such terms as the court may designate until the minor reaches majority. No withdrawal of funds so deposited shall be made unless approved by a justice or judge of the court in which the order of deposit was entered.
(e) Verification. Not later than 30 days after entry of the order approving the settlement, the attorney or party to whom the funds are paid shall file a sworn affidavit verifying that the funds paid have been deposited as required by the court order, stating the depository financial institution and account number, and certifying that a copy of the court’s order with restrictions on withdrawal, if any, has been provided to the depository financial institution.

Me. R. Civ. P. 17A

Amended April 27, 2015, effective May 1, 2015.

See 14 M.R.S.A. §1605, regarding minor settlements to be approved by court.

Advisory Committee’s Notes 1988

Rule 17A is amended to assure that the court receives sufficient information about the nature of a minor’s injuries and their cause to permit an informed evaluation of a request for settlement. The amendment is also intended to provide more protection to the minor by requiring verification of deposits and better confirmation that all parties have agreed to the settlement.

Throughout the Rule, the word “minor” has been substituted for “infant” as more in accord with current terminology.

Rule 17A(b) has been substantially rewritten. Paragraph (1) has been amended to specify procedures for waiving hearing if hearing is not desired. A new paragraph (2) has been added, requiring a detailed statement of the nature and the causes of the minor’s injury or damages, with special requirements for detail in independent reports where a settlement is for more than $5,000 or is presented by adverse parties. A new paragraph (4) has been added to require written indication of approval of settlements by defendants not represented by counsel. Paragraph (5) has been added to require that a draft order be submitted, detailing the financial arrangements and fund distributions.

Rule 17A(e) has been added. The provision requires verification that required deposits have in fact been made and that the depository institution has received a copy of the court’s order, including any restrictions on withdrawal.

Advisory Committee’s Notes June 2, 1997

Subdivision (c) of Rule 17A is amended to make clear that the court approval of a minor settlement may include a provision for payments after the minor has reached the age of 18. This change authorizes the use of special needs trusts or other continuing payments where medical or other needs may be arranged for the minor’s best advantage early in the minor’s life. The court will continue to be guided by the minor’s best interests, as 14 M.R.S.A. §1605 (Supp. 1995) intends.

Advisory Committee’s Notes May 1, 1999

Rule 17A(c) and (d) are amended to give the court more flexibility in approving minor settlements. Prior to the amendment, the language of the rule appeared to limit the parties and the court to the deposit of funds in a bank. The best interests of the minor can be served by more flexible arrangements, such as trusts created and administered under court supervision. Although the parties now have the flexibility to propose a trust for the minor benefit, the court still retains final authority on approval of the terms of the trust and any withdrawals therefrom.

Advisory Committee’s Notes May 1, 2000

The amendment substitutes the word “minor” for “infant” in the title. The text of the rule is not changed.

Annotations:

Rule 17A: Minor settlement approval standard. Corey v. Corey, 2002 ME 132, 7.

[7] Title 14 M.R.S.A. §1605 (Supp. 2001) requires that the court approve a settlement on behalf of a minor, whether the minor is plaintiff or defendant. Although we have not previously articulated a standard to be used in evaluating such settlements, we agree with the federal district court that the court “must review the terms of the compromise and settlement and assure itself that the settlement is fair, reasonable and in the best interests of the minor.” Holbrook v. Andersen Corp., 756 F. Supp. 34, 38 (D. Me. 1991) (applying Maine law). Since this evaluation involves the weighing of various factors and the assessment of the likely legal and factual outcome if the case were to proceed to trial, our review is for abuse of discretion. (Footnotes omitted.)

Advisory Note – June 2014

This new Rule 16C provides an expedited track for specified cases.