Boating Accidents on Flathead Lake

Spend much time in Montana, and you know that summertime means an influx of people – and that more than a few of them are towing boats. In Western Montana, lakes like Flathead Lake, Swan Lake, and Whitefish Lake transform from relatively empty fishing spots to top boating destinations. Unfortunately, not everyone comes prepared and knowledgeable about boating safety and regulations. And those people pose a real threat to the rest of us.

Montana Boat Accident Lawyers

Too often, a day of drinking and careless boating can end in serious injury or death. As boating injury lawyers in Montana, we are aware of the dangers that reckless boaters pose. As natives who grew up around the water and with boating safety in mind, we’re even more outraged by what some people will do on the water.

Too often, people think that watercraft are just toys, that don’t deserve the respect and care that we would ordinarily show to motorized vehicles. And honestly, the opposite is true. Especially in Montana, we may spend 12 months a year driving our cars, but only a month or two of boating. Our skills get rusty and our intuitions fail. That’s one reason it’s even more important to be hyper vigilant on the water. Another good reason is that even if you’re being careful, it’s a likely bet that someone else isn’t.

Have fun, but remember to take care out on the water. As a starting point, here’s a list of items Montana law requires you to have on your boat:

  • Life jackets: U.S. Coast Guard approved Personal Flotation Devices (PFDs or life jackets) must fit the intended wearer, be readily accessible, and be in good condition.
  • Children under 12 years of age must wear a life jacket on a boat less than 26 feet in length that is in motion.
  • Anyone towed by a boat must wear a life jacket.
  • Motorboats less than 26 feet long must have at least one B-1 fire extinguisher.
  • Exception: motorboats less than 26 feet long that are propelled by an outboard motor and are completely open construction (no closed spaces where gasoline fumes may be trapped) are not required to have a fire extinguisher.
  • Motorboats 26 feet to less than 40 feet long must have at least two B-1 or one B-II fire extinguishers.
  • Motorboats 40 feet to not more than 65 feet long must have at least three B-1 or one B-1 , and one B-II fire extinguishers.
  • When a fixed fire extinguishing system is installed and operational in the machinery space of a boat, one less B-1 fire extinguisher is required.
  • A motorboat 16 to 26 feet long must carry some means of producing an efficient sound signal that is audible for one-half mile, such as a whistle or a horn.
  • A motorboat more than 26 feet long must have on board a bell and a whistle or horn capable of making a sound that is audible for one mile.
  • Between sunset and sunrise and at other times of restricted visibility, vessels in operation must display navigational lights. All white lights required by the rules must be visible from a distance of at least two miles. All colored lights must be visible for a distance of at least one mile.
  • Navigation lights include:
    • a green light on the starboard (right) side of the boat
    • a red light on the port (left) side of the boat
    • a white light that is visible in all directions (usually located on the stern and higher than the red and green lights)
Be sure to check with Montana Fish, Wildlife and Parks for a full list of rules and regulations. And if you are injured because of someone else’s negligence, please consider calling the boat accident attorneys at Measure, Sampsel, Sullivan & O’Brien, P.C.


Montana Car Accident Attorneys

Despite being called car accidents, they usually aren’t accidents at all. Instead, if you look back you can usually find something one of the drivers did that caused the automobile wreck. As Montana Car Accident Lawyers, a large part of what we do is determining what happened before an accident. Especially if the collision causes injury or death, these actions need to be investigated completely in order that the victims can be compensated for their losses.

The Montana car accident attorneys at Measure, Sampsel, Sullivan & O’Brien, P.C., know how crucial it is for our clients to be able to depend on us to protect their rights. That’s why we provide a free consultation for injury victims. You can call us today, toll free, at 1-888-999-5037, or use the form below to email us.

Tragically, most car accidents are caused by negligence or recklessness that could have been avoided. Negligence occurs when the vehicle’s driver fails to exercise due care. Recklessness, on the other hand, is the intentional disregard for a substantial and unjustifiable risk. There are many different kinds of negligent or reckless actions that lead to Montana car accidents. For example: drunk driving, texting while driving, drowsy driving, speeding, following too closely, failure to yield, red light running, and drugged driving (which includes prescription drugs as well as illegal narcotics).

Although Montana law requires that all drivers carry liability insurance, too many people choose to break the law. This means that when they cause an accident, it can be much harder to hold them responsible and adequately compensate the injured party. Having your own insurance is helpful, but as I’ve heard too many times – insurance companies don’t make money by approving claims. If you’re the victim of a Montana car accident, you may find yourself fighting your own insurance company. At times like that, having knowledgeable and skilled attorneys can make a huge difference.

Montana’s Common Fund Doctrine

As an injury lawyer in Kalispell, Montana, I can’t emphasize enough how important the common fund doctrine is to accident victims. Whether you’ve been injured in a car accident, boat wreck, or something else, knowing your rights can make a world of difference.

The common fund doctrine allows a litigant or lawyer who recovers a common fund for the benefit of other parties to recover attorney fees from the whole. This is an exception to the general rule on attorneys’ fees in Montana which requires that each party to a civil action pay his or her own attorneys’ fees unless a statute, contract, or general principles of fairness allow otherwise.

There are three elements necessary to establish a common fund: 1) a party (the active beneficiary) must create, reserve, preserve, or increase an identifiable monetary fund or benefit in which all active and non-participating beneficiaries have an interest; 2) the active beneficiary must incur legal fees in establishing the common fund; and 3) the common fund must benefit ascertainable, non-participating beneficiaries.

The idea of the common fund was first established by the U.S. Supreme Court, and later adopted by the Montana Supreme Court in order to prevent unjust enrichment of non-participating claimants at the expense of active litigants and their counsel. As the Montana Supreme Court said, “The doctrine is employed to spread the cost of litigation among all beneficiaries so that the active beneficiary is not forced to bear the burden alone and the stranger beneficiaries do not receive their benefits at no cost to themselves.”

If you’ve been injured because of someone else’s negligence, the common fund doctrine can be a major advantage. Imagine you’re injured, and your insurance company pays part of your medical expenses. Later, you hire an injury lawyer who is able to get payment from the person who hurt you. Because part of the money you receive includes that payment by your insurance company, you have to pay them back for what they’ve already paid. But, under the common fund doctrine part of the attorneys’ fees are paid out of that money, and what you give to the insurance company is reduced. Because most injury lawyers handle cases on a flat fee, this reduces the amount you pay out of your share and ensures a better outcome for you.

How to Attach a Roof

Goles v. Neumann

John Neumann built an addition to his barn on his property near Pipestone, Montana in 2005. Two years later, the new roof blew off and cut a power line on the Goles’ property which sparked a fire consuming outbuildings, fences, corrals, trees, a field, and personal property. The Goaleses sued for negligent construction of the roof, alleging that he should have used “storm collars” to secure the roof in high winds.

The case proceeded to trial and each party introduced expert testimony. The Goles’ expert testified that he always used storm collars in windy areas and believed that the lack of collars was not reasonable and prudent, rendering the roof insufficient. On Neumann’s behalf, a wood science expert testified that while storm collars are commonly used in windy areas, the fact that Neumann had used 550 nails to secure the roof was significant. He believed it would have required winds of 100-105 mph to lift the roof, compared to 90 mph which was the standard.

Judge Tucker, the trial judge, gave the following instruction to the jury:

Negligence is not proven merely because someone later demonstrates that there would have been a better way. Reasonable care oes not require prescience nor is it measured with the benefit of hindsight.

The Goleses objected to the instruction, claiming that it was cumulative, unnecessary, and a comment on the evidence. Judge Tucker over ruled the objection and the jury returned a verdict in Neumann’s favor.

The Montana Supreme Court disagreed, holding that jurors could have reasonably inferred from the instruction that the testimony of both experts as to the efft that storm collars make better roofs should be disregarded. The majority held that jurors following this instructions could ahve concluded that they were obligated to disregard much of the evidence, instead of using their own sense of which evidence to accept and which to reject.

Justices Rice and Baker dissented on the grounds that the instruction was not an incorrect statement of negligence law and had previously been held proper in a Montana negligence case.

Negligent Traffic Director

Lokey v. Breuner and A.M. Welles Inc.

One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement of Torts, § 323.

In September of 2006, Charles Lokey was bicycling through Bozeman when a Welles dump truck pulled along side him, but did not completely pass. The two rode like that for “an uncomfortable amount of time.” Ahead, the dump truck driver saw Andrew Breuner who had been driving the opposite direction and was stopped, waiting to turn left. Cars were lining up behind Breuner and were beginning to pass him on his right.

The dump truck stopped and motioned for Breuner to make his turn, which Breuner did, and collided with Lokey who had not stopped along with the dump truck. Lokey sued both drivers for his injuries.

At the District Court, Judge Swandal ruled that the dump truck driver was “no more responsible for Lokey than he was for any of the hudreds of other drivers on the road,” and that there is “no authority for Lokey’s proposition that a driver who courteously yields his right-of-way to a left-turning driver is responsible for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever may be there.” Lokey appealed this decision to the Montana Supreme Court.

The Montana Supreme Court re-iterated its adoption of the restatement of torts section quoted above. By making the decision to act, the dump truck driver assumed the responsibility of making sure that his action was reasonably prudent. The Court ruled that it was reasonably foreseeable harm could come to those traveling behind the dump truck from the driver’s decision to waive for Breuner to turn.

In deciding to direct traffic, the dump truck driver assumed the responsibility of directing traffic safely. The jury should be allowed to decide whether the truck driver breached that duty and whether that breach caused Lokey’s injuries and damages.

Study Shows Mild Traumatic Brain Injuries Lead to Alzheimer’s

According to the Traumatic Brain Injury Law Blog, a new study shows that older veterans who have sustained a mild brain injury were likely to develop Alzheimer’s disease and other dementia-related diseases later in life. There was a high rate of mild cognitive impairment, or “pre-Alzheimer’s,” in retired pro-football players who suffered from multiple concussions during their careers.

The study’s findings negate older reports which stated that only moderate or severe brain injuries led to dementia. The study raises concerns for current service men and women who have suffered from explosions in recent years.

Over the next seven years, more than 15 percent of those who had suffered a brain injury were diagnosed with dementia versus only 7 percent of the others – a more than doubled risk. Severity of the injury made no difference in the odds of developing dementia.

The importance of proper treatment following any head injury cannot be stressed enough. The fact is that brain injuries, even mild ones, can cause life-long damage that will impair your quality of life.

Injury Victims with a Criminal History

A question that all too many Montana injury victims ask is whether their criminal history will hurt their case. Usually, this is actually two questions: 1) can the insurance adjuster find out about my criminal history;  and 2) will it hurt my case that I was arrested before? I know that a past crime has nothing to do with whether you were injured in a car accident. But most people have some facts in their past that they would rather not come out in front of a jury or insurance investigator.

The truth is that a criminal history, even a past conviction, usually won’t hurt your personal injury case. But what can really hurt your case is lying. Lying about anything can be devastating to your case. So while a criminal conviction won’t necessarily do any harm to your case, lying about it certainly could.

This goes back to a common refrain on this blog. Tell your injury lawyer the truth, the whole truth, and nothing but the truth. Whatever you tell him is covered by the attorney client privilege anyway. You may be embarrassed about your arrest, but some temporary ego bruising is better than a lifetime of inadequate damages because you hampered your attorney’s ability to help you.

The Montana Rules of Civil Procedure, the rules we have to play by in Court for an injury case, can generally be used to keep past convictions out of trial. But your Montana accident lawyer needs to know about everything in order to use it effectively. Give your lawyer all the facts and let him do his job.

My Case Settled, Now What?

After a Montana injury case settles, through mediation or another process, insurance companies usually send a check and release to your injury lawyer who will have you sign both and deposit the check in his trust account. Unfortunately, depositing the check doesn’t automatically transfer the funds. You may have to wait up to ten business days for the funds to transfer. And because of the strict rules regarding lawyer trust accounts in Montana, your lawyer should never disburse any funds before the check has cleared (even if the check is from a major insurance company).

Once the funds have cleared the lawyer should cut you a check for your share of the proceeds. Most Montana injury lawyers work on a contingency fee basis, meaning that they only get paid at the end of the case if they recover damages for you. This means that their payment is deducted from the insurance company’s check before payment is made to you.

Your lawyer may also need to deduct some money for medical bills. For example, if you received Medicare benefits related to your injury, Medicare must be repaid from the settlement. Unfortunately, Medicare can be painfully slow in getting those issues resolved so some injury attorneys cut two checks. One immediately, and a second after the Medicare issues have been resolved.

Your lawyer should have gone over the way any settlement or proceeds would be divided at your first meeting. If he didn’t, or if you don’t remember how things are to be divided, or if you’ve got questions you should feel free to ask your injury attorney how it will work at any time. The last thing you want is a big surprise waiting for you when you thought your case was over.

Selling a Structured Settlement

More and more on TV I see ads for companies that buy structured settlements from injury victims who have settled their cases. A structured settlement involves a number of payments over a period of time instead of a lump sum payment as settlement for an injury case. A structured settlement is sometimes a way for companies to pay more over a longer period of time than they would with the one time payoff (the same way a lottery winner gets more if they take it in installment payments instead of a lump sum). The drawback is that victims don’t have access to all the money and are often left waiting from check to check.

These companies pray on the inconvenience and purchase structured settlements for pennies on the dollar. I have never recommended to a client, or anyone else, that they sell their structured settlement to one of these companies. Frankly, I have trouble imagining a scenario where I would.

That being said, the decision of whether to sell a structured settlement for an injury settlement is more of a financial question than a legal one. So I always refer people in that position to a financial advisor. A good financial advisor can help you determine which path is best for you and demonstrate the pros and cons of each option with concrete numbers.

What are Interrogatories?

If your injury case has proceeded to the point where a lawsuit has been filed, you may come across the word interrogatories. More specifically, you may come across a long list of questions you need to answer in a certain period of time. Interrogatories are written questions that one party in a lawsuit sends to another.

Your lawyer will help you in answering the questions, and it’s very important that you tell the truth in this process. We’ve talked before how important it is that you tell the truth to your Montana injury attorney and the same applies here. Let your lawyer work for you, don’t tie his hands behind his back with facts that he doesn’t know.

Interrogatories are a part of the discovery process which is governed by the Montana Rules of Civil Procedure in state court and the Federal Rules of Civil Procedure in federal court. The basics of the rules are the same, but there can be some differences. The point of discovery is for the parties to make a full and open exchange of all the information relevant to the case. The scene in Matlock where the secret witness suddenly testifies to seeing the murderer in a different town the night of the killing just doesn’t happen. And for as much of a pain as answering all those interrogatories may be, remember that a full exchange of information also lets the other side know just how strong your case is.

It’s important to remember that discovery in general, and interrogatories specifically, are a legal process governed by statutes and case law. Your injury lawyer is there to guide you through the process, so make use of the resource. Ask questions if you’re confused and keep asking them until you understand.