Rule 40. Approval of Settlements: Minors

(a)  All petitions for approval of settlement of actions on behalf of minors shall be signed by the parent, next friend or guardian of the minor.

(b)  Court approval is not required for the settlement of any suit or claim brought on behalf of a minor in which the net amount is equal to or less than $10,000.00. Any settlement of such suit or claim in which the net amount exceeds $10,000.00 shall require court approval.

(c)  In any suit or claim on behalf of a minor if the amount to be paid to the minor before the age of majority exceeds $10,000.00, the court shall require proof in the form of a certified statement from the Circuit Court-Probate Division that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor whether through settlement, judgment, decree or other order, has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19. In the event of a structured settlement where an amount will be paid to the minor both before and after the minor reaches the age of majority, no guardian of the estate of such minor is required if the amount to be paid to the minor before the age of majority is $10,000.00 or less. If the amount to be paid to the minor before the age of majority in such structured settlement exceeds $10,000.00, then a guardian of the estate of such minor is required. In determining whether the net amount of a settlement exceeds $10,000.00, all sums covering attorney’s fees, court costs and other expenses related to the claim including medical expenses are to be excluded.

(d)  The petition shall contain the following information where applicable:

    1.  A brief description of the accident and of all injuries sustained and the age of the minor.

    2.  An itemized statement of all medical expenses and special damages incurred by the minor.

    3.  The total amount of the settlement and whether any bills or expenses are to be paid out of the total settlement or are being paid in addition as part of the parent’s claim. If the parent is being paid anything directly, the petition should contain a statement of the total amount being paid to the parent and a specification of the items covered.

    4.  Whether the settlement was negotiated by counsel actually representing the minor.

    5.  A statement from the attorney or non-attorney representative for the minor as to whether there was medical payment insurance available to the minor and whether or not a claim has been made for said benefits or whether payment has been received.

    6.  A statement from the attorney for the minor as to whether any liens for medical providers have been asserted or are assertable and how the settlement would resolve those liens.

    7.  The net amount to be received on behalf of the minor.

    8.  A request that the settlement be approved.

(e)  The petition must be accompanied with the following material:

    1.  A photocopy of the minor’s birth certificate.

    2.  An itemized statement from counsel detailing the nature of the work performed and the time spent on the case. An attorney’s fee in excess of 25% of the settlement amount will not be ordinarily allowed unless upon good cause shown. In the event that counsel seeks an attorney’s fee in excess of 25%, counsel shall file a motion requesting such an approval which motion shall contain the reasons for the request. A copy of that motion shall be provided to the next friend at least 10 days prior to the hearing or conference relative to approval of the settlement.

(f)  The court will not authorize the next friend to settle the action or authorize the execution of releases and will not make any order respecting indemnity agreements, and the petition should make no such request.

(g)  The court, upon its own motion, may appoint a guardian ad litem to represent the interests of the minor child and/or to review the proposed settlement. The fees of the guardian ad litem shall be paid by defendant.

(h)  The attorney or non-attorney representative, minor, parent, guardian, or next friend, will ordinarily be required to appear in all cases in support of the petition unless attendance has been excused by the court upon prior motion of counsel or upon the court’s review of the file. In all cases where the minor has not actually been represented in the negotiation of the settlement, the minor, parent, and the next friend or guardian shall be required to appear with the attorney or non-attorney representative for the minor.

(i)  A full medical report, including a recent and detailed prognosis from the attending physician, will ordinarily be required. “Recent” shall mean a report dated not more than 6 months prior to the date of the filing of the petition for approval of a settlement.

(j)(1)  Court approval of a net settlement of $10,000.00 or less is not required by statute; however, if a party desires court approval, the court’s order will ordinarily be in substantially the following form:

    Settlement approved.  All bills listed in the petition are to be paid.  Counsel fees in the amount of $_____________ allowed (if settlement was actually negotiated by counsel representing the minor).  The balance, amounting to $_____________, shall be deposited in a savings account in the __________ Bank at ________________ in the name of ______________, as Trustee for ______________, no withdrawals to be made prior to the 18th birthday of said minor, except on written approval of the court.  Said savings institution is authorized to pay over the full amount remaining in said account to the said ________________ upon satisfactory proof that he/she has reached the age of 18 years.  Approval is conditional upon compliance with this order with respect to payment of bills and deposit.

    (2)  If the net amount of a settlement exceeds $10,000.00, court approval is required, and the court’s order will ordinarily be in substantially the following form:

    Settlement approved. All medical bills and other approved expenses listed in the petition are to be paid. Counsel fees in the amount of $______________ allowed (if settlement was actually negotiated by counsel representing the minor). The balance amounting to $_____________, shall be paid over to __________________, as guardian over the estate of the minor.

    Said funds shall, upon payment, be under the jurisdiction of the appropriate Circuit Court-Probate Division and shall be administered in accordance with the requirements of the Circuit Court-Probate Division. Any requests for withdrawal shall be addressed to the Circuit Court-Probate Division for its consideration.

    Approval is conditional upon compliance with this order with respect to payment of bills and deposit of funds in accordance with this order.

    Counsel for the minor shall be responsible for the settlement funds until said funds shall have actually been deposited in the appropriate guardianship account pursuant to the terms of this order and pursuant to the terms of the guardianship.

(k)  In the event that the parties desire to enter into a structured settlement, which is defined as a settlement wherein payments are made on a periodic basis, the following rules shall also apply:

    (1)  Counsel for the defendants shall provide the court with an affidavit from an independent certified public accountant, or an equivalent professional, specifying the present value of the settlement and the method of calculation of that value.

    (2)  If the settlement is to be funded by an annuity, the annuity shall be provided by an annuity carrier meeting at least the following criteria:

        (A)  The annuity carrier must be licensed to write annuities in New Hampshire and, if affiliated with the liability carrier or the person or entity paying the settlement, must be separately capitalized, licensed and regulated and must have a separate financial rating;

        (B)  The annuity carrier must have a minimum of $100,000,000.00 of capital and surplus, exclusive of any mandatory security valuation reserve;

        (C)  The petition shall contain the following information about the annuity and the annuity carrier:

            (i)  a description of the structure of the annuity arrangement;

            (ii)  a description of the history and size of the annuity carrier and its experience in issuing annuities;

            (iii)  a certificate from the New Hampshire Insurance Department stating that the annuity carrier is in good standing in New Hampshire;

            (iv)  whether the annuity carrier is domiciled or licensed in a state accredited by the National Association of Insurance Commissioners under that organization’s Financial Regulation Standards program; and

            (v)  the annuity carrier’s most recent ratings from at least two of the commercial rating services listed in subparagraph (D);

        (D)  The annuity carrier must have one of the following ratings from at least two of the following rating organizations:

            (i)  A.M. Best Company: A++, A+, A, or A-;

            (ii)  Moody’s Insurance Financial Strength Rating: Aaa or Aa;

            (iii)  Standard & Poor’s Corporation Insurer Claims-Paying Ability Rating: AAA, AA+, AA, or AA-;

            (iv)  Duff & Phelps Credit Rating Company Insurance Company Claims Paying Ability Rating: AAA, AA+, AA, or AA-;

        (E)  The annuity carrier must meet any other requirement the court considers reasonably necessary to assure that funding to satisfy periodic payment settlements will be provided and maintained;

        (F)  The annuity carrier issuing an annuity contract pursuant to a qualified funding plan under these rules may not enter into an assumption reinsurance agreement for the annuity contract without the prior approval of the court and the owner of the annuity contract and the claimant having the beneficial interest in the annuity contract. The court shall not approve assumption reinsurance unless the reinsurer is also qualified under these rules;

        (G)  The annuity carrier and the broker procuring the policy shall each furnish the court with an affidavit certifying that the carrier meets the criteria set forth in subsection (D) above as of the date of the settlement and that the qualification is not likely to change in the immediate future. The broker’s affidavit shall also contain the following certification: “This determination was made with due diligence by the undersigned based on rating information which was available or should have been available to an insurance broker in the structured settlement trade”;

        (H)  In the event that the parties to the action desire to place the annuity with an annuity carrier licensed in New Hampshire which does not meet the above criteria, the court may consider approving the same, but only if the annuity obligation is bonded by an independent insurance or bonding company, licensed in New Hampshire, in the full amount of the annuity obligation; and

        (I)  The court reserves the right to require other reasonable security in any structured settlement if the circumstances should so require.

    (3)  The court may, for good cause shown, approve a structured settlement that does not comply with the provisions of paragraph (k). If the Court approves a settlement that does not comply with the provisions of paragraph (k), the court shall make specific findings on the record explaining the reason(s) for approving the settlement.