Appendix B

• Jurisdiction: Washington

APPENDIX B

SPECIAL PROCEEDINGS RULE 98.16W. ESTATES—
GUARDIANSHIP—SETTLEMENT OF CLAIMS OF MINORS
AND INCAPACITATED PERSONS

Judith Randisi

Chapter Details

Summary

§B.l	Introduction
§B.2	Text of Rule
§B.3	Historical Development
§B.4	Comparison With Federal Rule
§B.5	Purpose and Procedure (1) Purpose in General (2) Purpose of 1997 General Changes (3) Procedure (a) Mechanism of Appointment (b) Relationship to Statutory Provisions (c) Duties of Court-Appointed GAL
§B.6	Analysis (1) Background of Appointment and Qualifications of GAL (2) Investigation Conducted (3) Description of Incident and Cause of Action (4) Injuries and Treatment, Including Diagnosis and Prognosis (5) Damages Recoverable (6) Liability (7) Insurance and Collateral Sources (8) Liens (9) Other Claims (10) Apportionment (11) Evaluation of Settlement (12) Expenses and Fees (13) Proposed Disposition of Net Proceeds (14) GAL Expenses and Fees (15) Recommendations Regarding Presence of Injured Party (16) Verification (17) Attachments
§B.7	Significant Authorities
§B.8	Strategic and Practical Considerations

---

Judith Randisi spent 15 years as an obstetrical and medical/surgical nurse before turning her attention to learning the law. A University of Washington graduate and recipient of the coveted CALI award in Analytical Writing, Ms. Randisi was admitted to the Washington State Bar Association in 2008. Before coming to Fitzer, Leighton and Fitzer, P.S., Ms. Randisi worked at the Pierce County Prosecuting Attorney's Office, gaining critical experience as a trial attorney, and as a law clerk at Division II of the Washington Court of Appeals. Ms. Randisi is an associate member of the Robert J. Bryan American Inn of Court. Her practice emphasizes appellate practice and health care litigation. Ms. Randisi maintains her nursing credentials with a specialty in obstetrics.

§B.1 INTRODUCTION

This chapter covers Superior Court Special Proceedings Rule (SPR) 98.16W. This rule provides for the appointment of a guardian ad litem (GAL) to investigate independently the adequacy of minors' settlements. The rule is designed to protect the minor's interest by providing for full and adequate investigation in exchange for finality of the settlement. It also governs distribution of funds obtained by settlement or judgment.

§B.2 TEXT OF RULE

SPR 98.16W ESTATES—GUARDIANSHIP—SETTLEMENT
OF CLAIMS OF MINORS AND INCAPACITATED
PERSONS

(a)Approval of Settlement Required. In every settlement of a claim, whether or not filed in court, involving the beneficial interest of an unemancipated minor or a person determined to be disabled or incapacitated under RCW 11.88, the court shall determine the adequacy of the proposed settlement on behalf of such affected person and reject or approve it. If a suit for recovery on behalf of the affected person has been previously maintained, then the petition shall be filed in that county, or if no such suit exists, then in the county where the affected person resides, unless either court orders otherwise.

(b)Petition. The petition for approval of settlement on behalf of the affected person shall contain, as a minimum and to the full extent known:

(1) the affected person's full name and date of birth;

(2)the general identification and relationship of others having claims or potential claims arising from the same matters and identity of their counsel;

(3)the description and amount of all liens, subrogation or reimbursement claims, fees, bills, costs or expenses connected with the affected person's claim;

(4)the description and amount of all liens, reimbursements, fees, costs or expenses requested to be paid from the settlement funds to be deposited with the court (or the maximum claimed for reimbursement if any item is being disputed or negotiated further), including a columnar listing of all amounts to be received, all amounts to be paid or the maximum claimed and concluding with the net amount of money or other property remaining for the affected person.

(c) Appointment, Role and Termination of the Settlement Guardian ad Litem; Exceptions to Appointment.

(1)Upon filing of the petition, the court shall appoint a Settlement Guardian ad Litem to assist the court in determining the adequacy of the proposed settlement. The Settlement Guardian ad Litem shall conduct an investigation and file a written report with the court with a recommendation regarding approval and final disposition within 45 days of appointment or such other time as the court may order. The court, if appropriate under existing law, may order that all or part of the report and contents shall be confidential or sealed. Upon filing of the report and appearing at the hearings as may be required, the Settlement Guardian ad Litem is exonerated from further duties unless otherwise ordered by the court.

(2)The court may dispense with the appointment of the Settlement Guardian ad Litem if by written finding the court determines a guardian ad litem, a guardian, or limited guardian has been previously appointed or if the court affirmatively finds that the affected person is represented by independent counsel, so long as the guardian ad litem, guardian, limited guardian, or independent counsel has the qualifications which would be required for a Settlement Guardian ad Litem and neither has nor represents interests in conflict with those of the affected person which would not be allowed for a Settlement Guardian ad Litem. Independent counsel's fee interest in the claim, if allowed by the Rules of Professional Conduct, is not a disqualifying interest. If a Settlement Guardian ad Litem is not required, the independent counsel, guardian ad litem, guardian or limited guardian shall file the report.

(d)Qualifications of Settlement Guardian ad Litem.

The Settlement Guardian ad Litem shall be an attorney with at least five years of pertinent legal experience and such other qualifications as the court may require. The Settlement Guardian ad Litem shall neither have nor represent any interest in conflict with the affected person, including but not limited to the conflicting interests of parents or others legally responsible for medical care of the affected person.

(e)Report of Settlement Guardian ad Litem. The report of the Settlement Guardian ad Litem or other person authorized above shall include a description, in depth appropriate to the magnitude of injuries and settlement, of at least:

(1)the background of the appointment and qualifications of the writer including any relationship with involved parents, guardians, insurers or attorneys;

(2)a description of the investigation conducted, the persons interviewed and the documents reviewed, if any;

(3)a description of the incident and the affected person's potential legal claims;

(4)a description of the affected person's injuries, general treatment, diagnosis and prognosis attaching a recent supporting medical report or office record;

(5)a discussion of the damages potentially recoverable including identification of all special damages;

(6)a discussion of the potential liability of all persons and entities;

(7)an identification of other insurance or collateral sources for payment of any bills or expenses;

(8)a discussion and recommendation regarding any lien, subrogation or reimbursement claims, including any suggested retention in an attorney's trust account of the full amount claimed until the final resolution of such claim;

(9)an identification of all other claims, specifically including any claims held by other family members;

(10)a discussion of any proposed apportionment of claim proceeds among family members or unrelated claimants, if any;

(11)a discussion and recommendation regarding the proposed settlement form, documents and amounts;

(12)a discussion and recommendation regarding the expenses and fees for which payment is requested;

(13)a discussion and recommendation regarding the requested disposition of net proceeds;

(14)a statement of time spent, expenditures made and the fees and costs requested by the Settlement Guardian ad Litem;

(15)a discussion and recommendation regarding the presence of the affected person and the Settlement Guardian ad Litem at any court hearings on the Petition.

(16)a statement as to whether the Petition has been submitted for approval in any other jurisdiction.

(f)Hearing. At the time the petition for approval of the settlement is heard, the allowance and taxation of all fees, costs, and other charges incident to the settlement shall be considered and disposed of by the court. The court by local rule or by specific direction, may require or waive the presence of the affected person or the Settlement Guardian ad Litem.

(g) Attorney's Fees and Costs. Any attorney claiming fees, costs or other charges incident to representation of the affected person, from the claim proceeds or otherwise, shall file an affidavit or declaration under RCW 9A.72.085 in support thereof. Copies of any written fee agreements must be attached to the affidavit or declaration.

(h) Deposit in Court and Disbursements. Except for any structured portion of a settlement, the total judgment or total settlement shall be paid into the registry of the court, or as otherwise ordered by the court. All sums deductible therefrom, including costs, attorney's fees, hospital and medical expenses, and any other expense, shall be paid upon approval of the court.

(i) Form for Payment of Remaining Funds. Checks for funds payable to the affected person may be made out by the clerk jointly to the depository bank, trust company, or insured financial institution and to the independent attorney for the affected person, guardian or limited guardian, or trustee, and deposit shall be made to the trust or into a blocked account for the affected person with provision that withdrawals cannot be made except as provided in the trust instrument or as ordered by...