Incompetent Defendant Appeared Pro Se

Here’s a tip for all you trial attorneys out there: don’t proceed to trial against a (possibly) mentally incompetent defendant in her late eighties appearing pro se. And remember your Rule 10 notices. At least that’s the message from the Montana Supreme Court recently.

Stewart v. Rice, 2013 MT 55

The case is procedurally complicated enough that I won’t repeat it here, but here’s the gist of it: Juanita Stands was driving in “advanced twilight” on Old Highway 97 on the Crow Reservation in Big Horn County. Clark Rice was driving a tractor on that same road, and his tire extended in Stands lane. The tractor’s lights were not luminated and Stands struck the rear tire, which sent her spinning into Vianna Stewart, who was traveling in the opposite lane. Stewart and Stands sued everyone (inlcuding, initially, each other) and also named Rice’s mother, Edythe on the theories of respondeat superior and negligent entrustment.

At least initially, the Rices were represented by counsel. However, as the case drug on (it took five years until trial apparently) they could no longer afford their defense. In January of 2011, Clark’s counsel filed a motion to withdraw based on his inability to pay. Clark consented to the withdrawal, and the Court granted the motion. On January 10, 2011, Stewart served a Rule 10 notice on him.

On January 21, 2011, Edythe’s attorney filed a Motion to Withdraw and Motion to Continue. In addition to his request to withdraw, the attorney submitted an affidavit raising significant questions about Edythe’s mental health and requesting that a conservator be appointed prior to any further proceedings because it would be “an injustice to require [an] incompetent woman to proceed to trial without representation.”

On February 4, 2011, her attorney filed a motion asking the Court to allow Edythe to testify by deposition, again raising concerns about her mental health. On May 6 the District Court granted the motion to allow her to testify by deposition and on May 18 it allowed her attorney to withdraw. Both Clark and Edythe proceeded to trial pro se (without an attorney). Edythe was (mostly) physically present, but did not present any evidence or participate in the trial.

A bench trial was conducted, and the District Court concluded that Clark was negligent per se for violating three traffic statutes, and that each violation was an actual and proximate cause of the resulting collisions. Further, Edythe was found vicariously liable for the injuries because Clark was her agent and he was acting within the scope of his duties at the time of accident.

However, on appeal Edythe obtained counsel. The Supreme Court found that “that [Court’s] failure to evaluate Edythe’s competency prior to trial raises significant questions of the fundamental fairness of the proceedings with respect to her unrepresented participation in the trial.” Id., ¶ 31. The Court also ruled that the failure to provide Edythe with a Rule 10 notice “prejudiced her substantial rights and constitutes reversible error.” Id. ¶ 35. The Supreme Court passed on deciding the due process claims Edythe raised on appeal because the first two issues were already dispositive.

The Court reversed the judgment against Edythe and remanded the case for an evaluation of Edythe’s need for a conservator and new trial as to her vicarious liability only.

Montana Motorcycle Accidents

Montana is an enormous state with seemingly endless miles of road and beautiful scenery. What could be better for motorcycle riding? Unfortunately, the freedom that comes on two wheels also comes with a price. Careless and negligent drivers are no safer because you are riding a motorcycle and significantly more vulnerable. Instead, a beautiful ride from Kalispell to Missoula along Flathead Lake can turn ugly when an inattentive driver causes a motorcycle accident. Motorcycle accidents often involve a combination of inattentive motorists and the fact that motorcycles are usually smaller than other vehicles on the road. And, they are likely to result in major injuries such as head injuries, spinal cord injuries, and sometimes death.

In 2008 there were 5,290 fatalities resulting from motorcycle accidents in the United States. Over 96,000 people were injured in motorcycle crashes during that same time period. 41% of those who died were not wearing a helmet. According to 2007 statistics, motorcyclists were about 37 times more likely than automobile occupants to die in a motor vehicle crash when you factor in the death rate per number of miles travelled. Motorcyclists were 9 times more likely to be injured in a crash than a passenger car occupant.

The fun and freedom that comes with riding a motorcycle is unfortunately coupled with a real risk from other drivers on the road. When you’re injured because someone else made a mistake, Montana law allows you to recover the damages that you suffer. And those damages can include more than just your medical bills and the cost to fix your motorcycle. If you’ve been injured in a motorcycle accident in Montana, please consider calling a motorcycle injury lawyer immediately. There are important time limits that make acting quickly important. Obviously, I hope you’ll call the motorcycle injury lawyers at Measure, Sampsel, Sullivan & O’Brien, P.C., but whoever you choose I wish you a speedy and full recovery.

Dog Bite Injuries in Montana

Dog attacks can cause painful and lasting injuries for the victims. In Montana, the owners of dogs who bites bystanders are held strictly liable. This means that even if the owner was trying to control the dog, and took adequate precautions, they can still be held liable for the damage that their dogs cause.

If you’ve read other articles on our site, you know that this is a departure from the common standard in Montana. Usually, you have to prove that the other party was negligent before they can be held responsible. In the case of dog bites though, the statute creates strict liability so negligence is not an issue. The law does impose a few other restrictions though.

The law only applies within an incorporated city or town within Montana. Also, the victim must either be in a public place, or be lawfully in a private place. The upside of this is that if your dog attacks a burglar who is robbing your house, the thief can’t turn around and sue you for his injuries. But, if you are walking down the street in Kalispell and a dog bites you, you probably have a cause of action against the owner. So long as you meet the next requirement, which is that the dog attacked without provocation. The law will not protect someone who harasses a dog and then is attacked because of it.

Law suits in dog bite cases often focus on whether the victim harassed the dog, and whether they were trespassing at the time of the attack. Unfortunately, the Supreme Court has had very few chances to address this law meaning that we don’t have a tremendous amount of guidance. But we do know a few things. In one case, a man had his hands over his neighbor’s fence. The neighbor warned him to remove his hands from the fence prior to the dog bite attack, but the man did not remove his hands. The Supreme Court ruled that this did not make him a trespasser and he could still recover for his injuries. In the same case, the man who was attacked had chased the dog with a fence post four to six weeks before the attack. The Supreme Court ruled that this did not qualify as “provocation” under the dog bite laws. While I would never recommend either course of action, it does give some idea for when the statute continues to apply.

Dog bites cause immediate physical pain, can result in the need for surgery or other rehabilitation, and often include severe psychological trauma. Dealing with the fallout from an animal attack requires skill and a delicate touch. If you or your child has been injured by a dog or animal attack, please consider calling us today for a free consultation.

Hit by a Drunk Driver in Montana? Act Quickly.

In Montana personal injury cases involving a drunk driver, there’s an additional time constraint that doesn’t exist in other situations. Usually, the statute of limitations sets the amount of time an injury victim has to commence a lawsuit against the person who injured him. For personal injury cases in Montana, that’s generally the three year rule for tort actions. So, ordinarily you would have three years after an incident to find an injury lawyer and start a suit.

But, for victims hit by a drunk driver in Montana, there can be an additional restriction. Montana has what is known as a Dram Shop Act, which applies to people or businesses who sell or provide alcoholic beverages. Montana’s Dram Shop Act allows you to hold the bar responsible for your injuries if they served the driver who hit you while he was visibly intoxicated. If a bar serves a person who is clearly drunk, and that person then hits you while driving home, Montana law holds the bar responsible as well as the drunk driver. But, in order to do this you have to notify the bar within 180 days of the incident and begin your lawsuit within 2 years. These restrictions over rule the standard limitation period and impose a greater burden on victims to act quickly.

In Rohlfs v. Klemenhagen, LLC, a heavily divided Montana Supreme Court addressed the constitutionality of the statute. Cary Rohflfs was hit by Joseph Warren shortly after he left the Stumble Inn where he had been drinking all night. Cary filed her complaint a little over a year after the accident, but the District Court dismissed it because she had not given notice to the Stumble Inn (Klemenhagen, LLC). Cary appealed and challenged the constitutionality of the law. The majority of justices ruled that the law was constitutional (at least under the challenges Cary brought up in her appeal).

But, a concurring opinion, filed by Justice Morris raised an interesting point. The purpose of the law is to put Tavern owners on notice that something has happened. Conceivably, a driver could leave a bar, get in an accident miles and miles away, and the bar would have no way of knowing anything had happened. But in this case it was undisputed that the accident happened almost immediately after Joseph Warren left the Stumble Inn. High Patrol Officers spoke with bar employees that night. There is no arguing that the Stumble Inn was aware of the incident. It appears a majority of the Court would have accepted that argument, but it was not raised on appeal.

Your Health Insurance May Not Cover Motorcycle Accidents

Think your health insurance will cover you if you’re involved in a motorcycle accident in Montana? You might want to read the fine print. More and more insurance companies are adding language to their policies that exempts medical care payments for motorcycle accident injuries from coverage. So if you’re injured by an irresponsible driver while on a motorcycle, your health insurance may not help.

As motorcycle accident attorneys in Montana, we specialize in working with uncooperative insurance companies to try to ensure that you get everything you’re entitled to.

You may think that you have “full coverage.” You may have been told that you have full coverage. But please believe me when I say that there is no such thing as full coverage. In fact, you would probably be shocked to discover the list of things not covered by your insurance. Like motorcycle wrecks.

Most people imagine insurance as a warm blanket, protecting them from all the bad things that can happen everyday. And often it is. But sometimes, when things go wrong you end up on opposite sides of a dispute from your insurance company. When that happens, a strong advocate can mean the difference between success and failure. The insurance companies hire skilled attorneys to help protect their bottom line. Don’t you want someone on your side?

Montana Sexual Abuse Lawyers

In Montana, Sexual Abuse is a crime, and the perpetrators can be held criminal responsible and sent to jail. But, they can also be held civilly liable and forced to pay for the damages they cause to their victims. Although nothing can repair the trauma and pain survivors face on a daily basis, the law does provide for recovery for a wide array of categories including ongoing treatment and counseling, pain and suffering, and others.

Sadly, children are especially vulnerable to these predators. Incurring this type of trauma during a person’s formative years can have lasting consequences and require ongoing assistance. As Montana Sexual Abuse lawyers, we work to help clients receive the compensation they are entitled to for this horrendous crime. Although nothing can take away what happened, we can at least help you obtain what relief the system does offer.

Unlike other types of injury, sexual abuse often includes feelings of shame, embarrassment, and fear. Telling one person can be terrifying, let along reliving the horrific experience in front of an entire court room. But holding abusers and their institutions accountable is important, and can sometimes help with the healing process.

But the decision to hire a sexual abuse lawyer and pursue a case is very personal, and has to be something you are comfortable with. Ultimately, the decision has to be yours and yours alone. If we can help by offering legal advise or with an explanation of the legal process, it would be our pleasure.

Survivors of sexual abuse face unique hurdles in seeking justice, but a dedicated and knowledgable attorney can make a major difference. If you or someone you know has been a victim of sexual abuse, please contact an attorney immediately. As with any injury case, the statute of limitations can prove to be an impossible hurdle to overcome if survivors wait too long.

How Much is my Montana Injury Case Worth

People are often curious what their injury case is worth. It’s human nature, but many feel guilty for wondering – worrying that it makes them look greedy or that it will give the impression they’re lying about the pain to get more cash. Unfortunately, once people get over the hump of discomfort and ask the question, I never have a very satisfying answer for them (at least early on in the case).

Montana’s law regarding damages in personal injury and wrongful death cases involves considering a number of different factors and elements which need to be assessed at different times as the case progresses. Assuming the client hasn’t waited too long to come see me, at the time of our first meeting it is very unlikely that all those factors will be determined or knowable. And without all that information, any value on a case would just be a guess.

Imagine this scenario: a client has severely damaged his knee and is scheduled to have surgery to repair it soon. There’s no way to evaluate a claim on the knee until after the surgery and rehabilitation (and often for a while after that). For one, we have no idea what the cost of the surgery will be until after it’s completed, and that will be a part of any damages claim. Also, there’s no way to know what the surgery will discover about the knee or whether complications will arise during the surgery. Assuming there’s lost wages, presumably the client will continue to miss more work so we don’t know the total for that either. And, we have no idea what the knee will be like in the future, and whether there will be ongoing problems with it and how bad those will be.

For those reasons, and easily a dozen more, it’s usually not possible to accurately evaluate the value of a case at an initial meeting. Of course, there’s always the exception that proves the rule and occasionally someone will come in with a fully ready case where they’ve reached full recovery and the liability facts are already established. In those very rare instances, I can answer the question. But the rest of the time, we’re left with the client feeling somewhat awkward but not having learned much for the question.

But the truth is that the wait is worth it, because getting the correct answer is a lot better than some pie in the sky number I pick off the top of my head based on some other case only marginally like yours. Personal Injury cases in Montana, and across the country, are all unique and different. That makes my job interesting, but it also makes it very difficult to give concrete answers early in the case.

Calling an Injury Attorney too Late Can Ruin Your Case

Too often we have to turn away potential Montana personal injury clients because they called too late. Before their case could even get started, it was shut down. Leaving them with injuries and losses that will never be compensated.

In my experience, people don’t contact an injury lawyer soon after an accident for different reasons. Some believe their injury is minor or temporary, and will just go away. Others think the insurance adjuster when he says he will be fair. And some others want to avoid an cost of a lawyer by handling the claim themselves.

Honestly, there are personal injury cases where a lawyer won’t be all that much of a benefit. We pride ourselves on the fact that we’re honest when there isn’t much value we can bring to a case and they would be better off handling the matter on their own.

But there are many other cases where people wait too long to contact a lawyer (or don’t contact one ever) and make serious errors that hurt their case or don’t collect the information and evidence needed to prove their case. And, even worse, some wait past the deadline for taking legal action (the statute of limitations) or call a lawyer so late that it’s impossible to take on the case.

Here’s my advice: if you have been injured because of someone else’s actions and you believe that person (or business) is at fault, call an experienced personal injury lawyer for a free consultation. Obviously, we would prefer that you call us at Measure, Sampsel, Sullivan & O’Brien, P.C., but at at least call someone with the knowledge and skills to evaluate your case and advise you of your rights.

Bigfork Car Accident Lawyer

The Bigfork Car Accident Lawyers at Measure, Sampsel, Sullivan & O’Brien, P.C., understand that representing car accident victims requires special knowledge. Whether the personal injury occurred in Bigfork or throughout Montana, our Car Accident Lawyers fight to recover the different types of damages and compensation our clients are entitled to from car accidents.

Our Montana attorneys know that you may be facing costs and damages from medical expenses, hospital bills, rehabilitation expenses, lost earnings, future wage losses, lost earning capacity, physical disabilities, scars, loss of a limb, brain and head injuries, emotional distress, depression, anxiety, grief, and pain and suffering. We understand these issues, and work with our car accident clients, their friends and family, as well as their doctors and treatment providers to ensure that our clients receive not only the finest legal representation, but also the best support and medical care.

A lot of motor vehicle accidents are just minor fender-benders, where no injuries occur and the vehicles remain relatively undamaged. However, some accidents can be very serious – often including head and brain injuries and even fatalities – and there are numerous legal issues surrounding them. Insurance companies need to get involved, and when one driver is uninsured or underinsured, things become even more complicated. This is why you need an attorney who understands the complexities that go along with representing victims of motor vehicle accidents.

Most of us rely on automobiles to get us where we’re going. Driving is usually a safe activity, but the number of deaths and injuries caused by car accidents is sobering. According to the U.S. Department of Transportation National Highway Transportation Safety Administration, 33,808 Americans died, and millions more were injured from motor vehicle accidents in 2009.

Representing motor vehicle accident victims requires a team of lawyers and investigators, devoting their time and effort to you. At Measure, Sampsel, Sullivan & O’Brien, our Bigfork personal injury attorneys investigate every claim so that we may aggressively and zealously represent our clients and obtain the best possible results.

Whether you were injured in Bigfork, or anywhere else in the State, when you need a Montana personal injury attorney to represent you, a family member or friend who has suffered a motor vehicle accident injury, contact Paul Sullivan at Measure, Sampsel, Sullivan & O’Brien, P.C. Paul is a native of Bigfork, and willing and ready to work hard to get you the best result. To arrange a free consultation, please give us a call at 1-888-999-5037.

What Types of Insurance Apply in Car Wreck Cases

When we represent in an accident and injury case, one of the most important issues is determining insurance coverage. Usually, there is an interplay of several different insurance policies. The driver at fault hopefully has insurance and it may cover the damages you sustained in the car wreck. Montana law requires all drivers to carry liability insurance of $25,000 for the injury or death of one person and $50,000 for the injury or death of more than one person. The policy must also include $10,000 for damage to property. If you are the only person injured in the accident, the policy should pay $25,000 for your injuries. If more people are injured, the most the minimum policy will pay is $50,000 (plus the $10,000 if damage to property applies). As you can imagine, this often is not enough to cover all the damages victims experience. And worse, many drivers refuse to carry insurance.

If the at-fault driver carries no insurance, your own car insurance policy may apply. Most policies have uninsured motorist coverage. Under the terms and conditions in your insurance policy, you may be able to recover from your own insurance company if we can prove that the other driver is uninsured.

Along the same lines, if the at-fault driver’s insurance is insufficient to cover your damages, and your coverage is greater than the other driver’s insurance coverage, you may be able to recover the difference between the two with underinsured motorist coverage. In this case, let’s assume the other driver is carrying the minimum of $25,000 and you have underinsured motorist coverage in the amount of $100,000 per person. Assuming your damages are $100,000 or more, you could recover $75,000 from your insurance company. There are other off-sets that can come in to play, but the important fact is that you stand to recover at least the amount of your underinsured coverage.

You may also have medical payments coverage under your insurance which covers medical care. This is generally limited coverage, but when you’re facing mounting medical bills from someone else’s carelessness, any amount can help. Any payments you receive here will likely be subject to subrogation, where you’ll be required to reimburse the insurer if you recover any damages from the at-fault driver.

Unfortunately, many of these scenarios put you at odds with your insurance company. Too often, other drivers don’t carry enough insurance to compensate for the damage and injuries they cause. If that’s the case, you may be put in a position where you have to fight your own insurer to receive adequate compensation. At times like that, quality legal representation is invaluable.