Can I Still File an Insurance Claim After a Crash if My Young Child Was Not in a Safety Seat?

Yes.

I’ll explain why in detail, but Virginia parents need to know that forgetting to secure their young children in safety seats will not prevent them from holding other drivers accountable for inflicting injuries in car or truck crashes.

LEARN MORE

• The Problem With Virginia’s Contributory Negligence Rule
• How Fault Is Determined in a Virginia Car Crash

Every Virginia driver should know that state law requires “child restraint devices” for children between the ages of birth and 8 years old. Rear-facing child safety seats must be used for babies until the age of 24 months or until the child weighs 20 pounds. After that, forward-facing safety seats or protective booster seats must be used until a child reach a height of 4 feet 9 inches or a weight of 80 pounds.

This law applies to any driver of a privately owned car, pickup, minivan or SUV who transports passengers. Police officers and state troopers are authorized to stop and ticket drivers only for failing to properly use child restraint devices.

Insurance companies for people who cause traffic crashes will cite the child safety seat law as a reason to deny claims filed on behalf of children who suffered injuries while not buckled into a safety seat or booster seat. Insurers do this by invoking a legal principle called strict contributory negligence under which an individual who can be found even 1 percent responsible for an injury cannot demand compensation and monetary damages from anyone else who also caused the injury.

Virginia courts usually apply the strict contributory negligence rule, but the very same state law that requires the use of child restraint devices includes this exemption:

A violation of this section shall not constitute negligence, be considered in mitigation of damages of whatever nature, be admissible in evidence or be the subject of comment by counsel in any action for the recovery of damages in a civil action.

To strip out the legalese: Not using a child safety seat or booster seat is not contributory negligence. While securing a young child in a moving vehicle is always a good idea, not doing so cannot automatically invalidate requests for insurance coverage for an injured child’s medical bills, physical therapy and other crash-related costs.

As a longtime Virginia personal injury attorney who knows too well how much not using a seat belt or safety seat increases the risk for debilitating or deadly injuries, I encourage parents to buckle up themselves and their kids. But I also want Virginia parents to know they can file insurance claims even when they do not.

EJL