Montana

accident injury law

To understand the made-whole rule, we first need to talk about Subrogation. Generally in injury law, subrogation refers to a situation where an insurance company is trying to recoup expenses for a claim it paid when another party should have paid at least some of the amount.

For example, imagine you are hit by a car while crossing the street and the driver speeds off. Since you don’t know who hit you, your insurance company may pay for some or all of the damages and losses you experienced. If later you find out who the driver was and make a claim against his insurance company, it would be subrogation if your insurance company tried to recoup some (or all) of what it paid to you from the second insurance company.

The made-whole rule addresses when an insurance company is entitled to subrogation. In one case, the Supreme Court held that an insurance company cannot seek subrogation until the insured has been made whole. This includes the expenses of litigation and attorney’s fees. The Court reasoned that in a situation where either the insured or the insurer must sustain a loss, it should be the insurer that goes unpaid because that is the risk the insured has paid it to assume.

Since that case, the Made-Whole Rule has been developed and grown into a strong protection for injury victims. The basic idea is that in a situation where someone (either the insurer or the insured) is going to suffer a loss, it should be the insurer. And because of that, where there isn’t enough money from the person who caused the damage to go around, it should first go to the victim until his losses have been repaid, and then go to repay the insurance company. Because this is a very pro-victim rule, it is controversial. If you have questions about the made-whole rule, please call me today to discuss your specific situation.

Wrongful Death

A claim for wrongful death describes a cause of action that may be brought be the heirs of the decedent (the person who passed away). In its most basic form, wrongful death is when someone dies because of the actions of another person. Fatal automobile accidents, botched surgeries, even rock climbing accidents can all lead to wrongful death claims.

One purpose of a wrongful death case is to compensate the heirs for the harm or damages they personally suffered as a result of the death. Generally, in a wrongful death claim, the heirs may recover for loss of consortium, loss of comfort and society, and the value of the contributions the decedent would have made to the heirs’ support education, training, and care. This last section is sometimes described as lost wages, but that’s not entirely correct. Because wrongful death is focused on the survivors, that section actually deals with what percentage of the decedent’s earnings could have been passed on to the survivors.

The damages for wrongful death are the damages of the heirs which occur because of the wrongful death. They are not damages that were sustained by the decedent. Those may be recovered as well, but in a separate action known as a survivorship claim. These two claims are closely related, but focus on different aspects of the law.

Ironically, the survivorship action focuses on the person who died while the wrongful death claim is for the living.

If you believe you have a wrongful death claim it is important that you act quickly. Waiting too long can impair your attorney’s ability to investigate and develop your case, but it could also completely end things before they even start. Texas has a two year statute of limitations on wrongful death cases. This means that a wrongful death claim mud the brought within 2 years or it can never be pursued. The time starts running upon the death of the victim.

But why wait at all? Most wrongful death attorneys offer a free initial consultation to discuss your case and explain your rights. Obviously I hope you will contact the wrongful death lawyers at our firm, but whatever you decide, please see someone sooner than later.

Cross Jurisdictional Tolling of the Statute of Limitations

In Stevens v. Novartis Pharmaceuticals Corp., the Supreme Court addressed for the first time whether a case filed in a different jurisdiction served to toll the statute of limitations against a defendant in that second case. In Stevens, the plaintiff timely brought suit  against her doctor, his business, and John Does one through four. She did not name Novartis however. The complaint was amended to name Novartis 10 months after the statute of limitations had run on her claim.

In one of her arguments, Stevens maintained that the statute of limitations was tolled by a class action lawsuit brought in federal district court. Stevens asserted that because the Becker suit contained a request for worldwide class certification, and contained claims substantively identical to those made by Stevens, the statute of limitations was tolled as to Stevens as well as other potential class members.

As a matter of first impression, the Supreme Court concluded that the class action tolling rule would be logically applied in this case and ruled that Stevens’ amended complaint was timely filed.

In addressing one of Novartis’ two principal arguments to the application of class action tolling, the  supreme court went on to adopt a rule allowing for cross-jurisdictional tolling of claims. The Court found that the main reason that other state courts were declining to adopt cross-jurisdictional tolling is the fear that doing so while the doctrine is not yet widely accepted will trigger a rush on the courts of that state.

The Supreme Court did not agree that this was a valid concerned and plainly stated its belief that they were not expanding access to courts beyond the access to which out-of-state plaintiffs are already entitled.

The Court went on to caution that some class action lawsuits would not put the defendants on notice of the substantive claims against them, and under such a situation the class-action tolling rule may not apply. The Court also noted that the amount of time the plaintiff is alleging has been tolled is a relevant consideration (noting that 10 years may have produced a different outcome than the 10 months in the present case).