Cook v. Connolly , 353 N.W.2d 184 ( 1984 )

LESLIE, Judge,

concurring specially.

I concur in the result reached in the majority opinion. I do not, however, believe that the result can be reached by relying on the doctrine of collateral estop-pel. The recognized requisites for invoking the doctrine are not in my opinion present.

Notwithstanding, I am satisfied that the legal community and others interested in the finality of court approved minor settlements have sought such settlements with the understanding that once approved they would not be disturbed absent their fraudulent procurement. The fact that this is described as a case of first impression bears witness to this truth.

Surely this reliance on court approved minor settlements has risen to a rule of law which we should now declare: Court approved settlements of minors’ claims when done openly and substantially following established procedures are clothed with finality and officers of the court representing the minor may not be sued absent fraud.

Without such a rule of law there may be, as Judge Mulally stated in his memorandum, “thousands of time bombs ticking away throughout the jurisdictions of this state by way of minors’ claims settled with court approval, which will ripen into malpractice actions when the minor attains his/her majority in 10-15-18 years and decides that the settlement attained is not now to his/her liking.”

Without this rule of law we would expose attorneys to the task of defending against malpractice suits fraught with obvious problems for both litigants. That list includes retrieving records, procuring witnesses, finding insurance policies and establishing coverage and the usual recall difficulties about a matter long since forgotten. The burden which would surely be difficult for the plaintiff would be intolerable for the defendant.

Perhaps even more important is the potential future impact of a contrary rule. The law now properly favors settlements and the real beneficiary of the settlement (while admittedly also the attorney) is surely the minor child. Without this rule many lawsuits brought on behalf of minors would be tried, often as Judge Mulally suggests, “to the extreme detriment of the minor.” And, I might add with an adverse effect on an already crowded court calendar.

The law as it has been understood and relied upon has worked well. The facts of this case do not justify proclaiming a different rule of law.

In the absence of an allegation of fraud and because recognized and established procedures were followed in obtaining the minor settlement at issue in this case I would also affirm.