Auto Accident Demand Letter - Montana

DEMAND FOR SETTLEMENT - MOTOR VEHICLE COLLISION

STATE OF MONTANA

PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION PURSUANT TO M.R.E. 408

[FIRM NAME]
[________________________________]
[________________________________]
[City], Montana [____]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA ELECTRONIC MAIL

[________________________________]
[Adjuster Name]
[________________________________]
[Insurance Company Name]
[________________________________]
[Street Address]
[________________________________]
[City, State ZIP]

RE: SETTLEMENT DEMAND - MOTOR VEHICLE COLLISION
Our Client: [________________________________] (hereinafter "Claimant")
Date of Loss: [__/__/____]
Location of Accident: [________________________________]
Your Insured: [________________________________] (hereinafter "Tortfeasor")
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Birth: [__/__/____]
Age at Time of Accident: [____]

Dear [________________________________]:

This firm represents [________________________________] (hereinafter "Claimant") in connection with personal injuries and damages sustained in a motor vehicle collision that occurred on [__/__/____] in [________________________________] County, Montana. This letter constitutes a formal demand for settlement of our client's claims arising from the negligence of your insured, [________________________________].

This demand is made pursuant to Montana law and is intended as a settlement communication under Montana Rule of Evidence 408. We further note that Montana's Unfair Trade Practices Act (UTPA), Mont. Code Ann. § 33-23-101 et seq., requires your company to effectuate prompt, fair, and equitable settlements where liability is reasonably clear. Failure to do so may expose your company to independent liability under the UTPA.

I. MONTANA LEGAL FRAMEWORK

A. Modified Comparative Negligence (51% Bar) - Mont. Code Ann. § 27-1-702

Montana follows a modified comparative negligence system under Mont. Code Ann. § 27-1-702. The statute provides:

"Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property if the contributory negligence was not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought, but any damages allowed must be diminished in the proportion to the percentage of negligence attributable to the person recovering."

In practical terms, a plaintiff is barred from recovery if the plaintiff's fault is greater than the fault of the defendant or the combined fault of all defendants. If the plaintiff is 50% or less at fault, the plaintiff may recover, but the award is reduced by the plaintiff's percentage of negligence.

In the present case, your insured is 100% liable for this collision. Our client bears no comparative fault whatsoever.

B. Statute of Limitations

Personal Injury - Mont. Code Ann. § 27-2-204

Under Mont. Code Ann. § 27-2-204, a plaintiff has three (3) years from the date of injury to file a personal injury action. The collision occurred on [__/__/____], establishing an expiration date of [__/__/____].

Property Damage - Mont. Code Ann. § 27-2-207

Under Mont. Code Ann. § 27-2-207, claims for injury to personal property (including vehicle damage) must be filed within two (2) years from the date of the event. The property damage limitations period expires on [__/__/____].

We reserve the full right to initiate litigation before either statutory period expires.

C. Mandatory Liability Insurance - Mont. Code Ann. § 61-6-103

Montana requires every motor vehicle operated on public roadways to be insured by a liability policy meeting the minimum limits specified in Mont. Code Ann. § 61-6-103:

Driving without insurance in Montana is a misdemeanor offense. The penalty for a first offense is a fine between $250 and $500 or up to 10 days in jail. See Mont. Code Ann. § 61-6-302.

D. No Compensatory Damages Cap for Private Defendants

Montana does not impose a statutory cap on compensatory damages in auto accident personal injury cases against private defendants. Governmental entities are subject to caps of $750,000 per claim and $1.5 million per occurrence under Mont. Code Ann. § 2-9-108.

E. Non-Economic Damages Cap - Historical Note

Mont. Code Ann. § 25-9-411 previously imposed a cap on non-economic damages at $250,000 (adjusted for inflation). However, the Montana Supreme Court has held this cap unconstitutional in certain applications. See Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488 (1989). Practitioners should verify the current enforceability of this provision for specific case types. In personal injury cases arising from motor vehicle collisions, the cap's applicability remains subject to constitutional challenge.

F. Punitive Damages - Mont. Code Ann. § 27-1-221

Under Mont. Code Ann. § 27-1-221, punitive damages may be awarded upon proof by clear and convincing evidence that the defendant was guilty of actual fraud or actual malice. Punitive damages are capped at the lesser of $10 million or 3% of a defendant's net worth. We reserve the right to pursue punitive damages if evidence of aggravating conduct (such as intoxication, extreme recklessness, or distracted driving) exists.

G. Modified Joint and Several Liability - Mont. Code Ann. § 27-1-703

Under Mont. Code Ann. § 27-1-703, Montana applies a modified joint and several liability system. Joint and several liability applies unless a defendant is 50% or less at fault, in which case only several liability applies. Defendants more than 50% at fault bear joint and several liability for the entirety of the plaintiff's damages.

H. Collateral Source Rule - Abrogated

Montana abrogated the common law collateral source rule effective 2021 through SB 251, codified at Mont. Code Ann. § 27-1-308. Under the current law, a damages award "may not exceed amounts actually paid by or on behalf of the plaintiff to health care providers that rendered reasonable and necessary medical services or treatment to the plaintiff." Additionally, if a defendant, insurer, or authorized representative pays any part of the financial obligation for medical services prior to trial, the court must reduce the award by that amount.

Practice Note: This significant change in Montana law means that medical billing amounts may need to be carefully documented to reflect amounts actually paid rather than amounts billed.

I. Montana Unfair Trade Practices Act (UTPA) - Mont. Code Ann. § 33-23-101 et seq.

Montana's UTPA provides claimants with additional remedies against insurance companies that fail to deal fairly and in good faith. Under the UTPA:

• Insurers must effectuate prompt, fair, and equitable settlements where liability is "reasonably clear"
• An insurer must pay an injured third party's medical and other out-of-pocket expenses, including lost wages, in advance of a settlement to the extent liability is reasonably clear and expenses are causally related to the accident
• Plaintiffs may recover punitive damages for UTPA violations upon proof by a preponderance of the evidence of specified violations and clear and convincing evidence of actual malice or fraud

II. STATEMENT OF FACTS

A. Accident Description

On [__/__/____], at approximately [____] [a.m./p.m.], our client, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing Montana license plate number [________________________________], traveling [direction] on [________________________________] [Street/Highway] in/near [________________________________], [________________________________] County, Montana.

At the time of the collision, our client was [________________________________] [describe activity, e.g., proceeding through a green light, stopped at a traffic signal, traveling within the posted speed limit].

Your insured, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing license plate number [________________________________]. Your insured [________________________________] [describe negligent conduct, e.g., failed to stop at a red light, was following too closely, failed to yield the right of way, was distracted by a cellular device].

As a direct and proximate result of your insured's negligence, your insured's vehicle struck our client's vehicle [________________________________] [describe point of impact].

B. Weather and Road Conditions

At the time of the collision, weather conditions were [________________________________]. Road conditions were [________________________________]. Visibility was [________________________________]. The posted speed limit at the location was [____] miles per hour.

C. Police Report

The collision was investigated by [________________________________] [law enforcement agency]. The investigating officer, [________________________________], prepared a report assigned Case Number [________________________________]. The report [________________________________] [summarize key findings and any citations issued].

D. Witnesses

E. Physical Evidence

☐ Photographs of the accident scene preserved
☐ Photographs of vehicle damage preserved
☐ Photographs of client's visible injuries preserved
☐ Dashcam or surveillance video footage [is/is not] available
☐ Event Data Recorder (EDR) data [has/has not] been preserved
☐ Cell phone records of the at-fault driver [have/have not] been obtained

III. LIABILITY ANALYSIS

A. Negligence of Your Insured

Under Montana law, a claim for negligence requires proof of: (1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. See Fisher v. Swift Transp. Co., 181 Mont. 145 (1979).

Your insured owed a duty of reasonable care to all persons using the roadway. Your insured breached that duty by:

☐ Violating Mont. Code Ann. § [________________________________] [cite specific traffic statute]
☐ Operating a vehicle in a careless or reckless manner
☐ Failing to maintain a proper lookout
☐ Failing to maintain a safe following distance
☐ Failing to yield the right of way
☐ Operating a vehicle while distracted
☐ Operating a vehicle under the influence of alcohol or drugs
☐ Exceeding the posted speed limit
☐ Failing to obey a traffic control device
☐ [________________________________] [other negligent conduct]

B. Proximate Causation

Your insured's negligence was the direct and proximate cause of our client's injuries and damages as documented herein. But for your insured's conduct, this collision would not have occurred.

C. Allocation of Fault

Based on the police report, witness accounts, and physical evidence, your insured bears 100% of the fault for this collision. Our client bears 0% comparative fault, well below the 51% threshold that would bar recovery under Mont. Code Ann. § 27-1-702.

IV. INJURIES AND MEDICAL TREATMENT

A. Emergency Treatment

Following the collision, our client was [________________________________] [transported by ambulance to / drove to / was taken to] [________________________________] [Hospital/Medical Facility] on [__/__/____]. Our client presented with:

• [________________________________]
• [________________________________]
• [________________________________]
• [________________________________]

Emergency diagnoses included:

• [________________________________]
• [________________________________]
• [________________________________]

B. Medical Treatment Chronology

Important Note Regarding Montana's Abrogated Collateral Source Rule: Under Mont. Code Ann. § 27-1-308 (effective 2021), recovery of medical expenses is limited to amounts actually paid by or on behalf of the plaintiff. The amounts listed above reflect actual payments, not amounts billed.

C. Treating Physicians and Specialists

D. Current Medical Status and Prognosis

As of this demand, our client [________________________________] [describe current condition, ongoing symptoms, and prognosis]. Dr. [________________________________] has opined that [________________________________] [describe medical opinion regarding permanence, future treatment needs, and maximum medical improvement status].

E. Future Medical Treatment

V. DAMAGES

A. Economic Damages

1. Past Medical Expenses (Amounts Actually Paid)

Note: Consistent with Mont. Code Ann. § 27-1-308, the demand for past medical expenses is based upon amounts actually paid.

2. Future Medical Expenses

3. Lost Wages and Income

Our client was employed by [________________________________] as a [________________________________] earning $[________] [per hour/week/month/year] at the time of the collision. As a direct result of the injuries, our client was unable to work for [________________________________].

4. Loss of Earning Capacity

[If applicable] $[________]

5. Property Damage

Note: Property damage claims are subject to a two-year statute of limitations under Mont. Code Ann. § 27-2-207.

6. Out-of-Pocket Expenses

B. Non-Economic Damages

1. Pain and Suffering

Our client has endured significant physical pain and emotional distress as a direct result of this collision. [________________________________] [Describe the nature and severity of pain, its impact on daily activities, sleep disruption, emotional distress, anxiety, depression, loss of enjoyment of life, etc.]

Montana courts recognize pain and suffering as a legitimate element of compensatory damages. The Montana Supreme Court has consistently held that juries have broad discretion in assessing non-economic damages where supported by the evidence. See Seltzer v. Morton, 154 Mont. 464, 466 P.2d 854 (1970).

Pain and Suffering Valuation: Based on the severity, duration, and permanence of our client's injuries and their impact on our client's quality of life, we value the pain and suffering component at $[________].

2. Loss of Consortium

[If applicable] Our client's spouse, [________________________________], has suffered a loss of consortium. Under Montana law, a spouse may recover for the loss of the injured spouse's companionship, society, comfort, and sexual relations. See Walters v. Querry, 226 Mont. 382, 735 P.2d 1089 (1987).

Loss of Consortium Damages: $[________]

C. UTPA Advance Payment Demand

Pursuant to the Montana Unfair Trade Practices Act, Mont. Code Ann. § 33-23-101 et seq., and given that your insured's liability is reasonably clear, we hereby demand that you immediately advance payment for our client's documented medical expenses and lost wages in the amount of $[________]. Montana law requires insurers to make advance payments where liability is reasonably clear and expenses are causally related to the accident.

D. Summary of Damages

VI. DEMAND FOR SETTLEMENT

Based upon the foregoing facts, legal analysis, and damages, we hereby make a formal demand for settlement of all claims arising from this collision in the total amount of:

$[________________________________]

This demand is open for thirty (30) days from the date of this letter, expiring on [__/__/____]. If we do not receive a meaningful response or an acceptable offer by that date, we will file a civil complaint in the appropriate Montana District Court without further notice.

This demand represents a full and final settlement of all claims, including but not limited to:

☐ Personal injury claims of the Claimant
☐ Property damage claims
☐ Loss of consortium claims (if applicable)
☐ All past, present, and future medical expenses
☐ All past and future lost wages and loss of earning capacity
☐ All pain and suffering, past and future
☐ All other compensatory damages

This demand does not include claims for punitive damages under Mont. Code Ann. § 27-1-221 or independent claims under the UTPA, which are expressly reserved.

VII. SETTLEMENT NEGOTIATION PROVISIONS

A. UTPA Compliance

We expect good faith negotiation consistent with Montana's Unfair Trade Practices Act. Your obligation to make advance payments where liability is reasonably clear is separate from and in addition to any settlement obligations.

B. Policy Limits Disclosure

We request immediate written confirmation of:

☐ The liability coverage limits of your insured's policy
☐ Whether any other policies provide additional coverage
☐ Whether coverage is disputed
☐ The identity of any excess or umbrella carriers

C. Reservation of Rights

This demand is made without prejudice to any rights our client may have, including claims for punitive damages, UTPA violations, bad faith, or any other cause of action available under Montana law.

VIII. LITIGATION WARNING

Should settlement not be achieved, we will file a complaint in [________________________________] County District Court, Montana. We will pursue full compensatory damages, punitive damages under Mont. Code Ann. § 27-1-221, UTPA remedies, pre-judgment interest, costs, and all other available relief.

We strongly encourage resolution through good faith settlement negotiations to avoid the additional costs and exposure of litigation.

IX. MEDICAL RECORDS AUTHORIZATION

Enclosed is a HIPAA-compliant authorization (45 C.F.R. § 164.508) for release of medical records related to this collision.

I, [________________________________], authorize the following providers to release medical records and billing information related to the collision on [__/__/____] to [________________________________] [Insurance Company]:

This authorization expires on [__/__/____] or upon final resolution, whichever occurs first.

Signature: _________________________________ Date: [__/__/____]
Printed Name: [________________________________]

X. ENCLOSED DOCUMENTATION

☐ Police/Accident Report
☐ Photographs of accident scene
☐ Photographs of vehicle damage
☐ Photographs of injuries
☐ Medical records and bills (with amounts paid documentation)
☐ Proof of lost wages (employer verification letter)
☐ Property damage estimates/repair invoices
☐ HIPAA-compliant medical authorization
☐ Expert reports (if available)
☐ Witness statements
☐ [________________________________]

XI. DOCUMENTATION CHECKLIST - CLAIMANT FILE

☐ Accident/police report obtained
☐ All medical records collected and organized
☐ All medical bills itemized - both billed and paid amounts documented per Mont. Code Ann. § 27-1-308
☐ Lost wage documentation obtained from employer
☐ Property damage documented with photographs and estimates
☐ Witness statements obtained and preserved
☐ Photographs of injuries taken at multiple stages of recovery
☐ Insurance policy information confirmed
☐ Personal injury statute of limitations deadline calendared ([__/__/____])
☐ Property damage statute of limitations deadline calendared ([__/__/____])
☐ Medical treatment completed or at MMI
☐ Future medical cost projections obtained
☐ Pain and suffering documentation maintained
☐ All insurance correspondence documented
☐ HIPAA authorization executed
☐ UTPA advance payment demand made
☐ Demand letter sent certified mail with return receipt
☐ Settlement authority confirmed with client
☐ Lien search completed (Medicare, Medicaid, ERISA, workers' comp)

XII. MONTANA-SPECIFIC PRACTICE NOTES

☐ Modified Comparative Negligence (51% Bar): Under Mont. Code Ann. § 27-1-702, plaintiff is barred if fault is greater than that of all defendants combined; recovery reduced by plaintiff's percentage of fault
☐ Three-Year Personal Injury SOL: Mont. Code Ann. § 27-2-204
☐ Two-Year Property Damage SOL: Mont. Code Ann. § 27-2-207 - separate and shorter deadline
☐ Collateral Source Rule Abrogated (2021): Mont. Code Ann. § 27-1-308 limits medical recovery to amounts actually paid - document both billed and paid amounts carefully
☐ Non-Economic Damage Cap: Mont. Code Ann. § 25-9-411 ($250,000 adjusted) - constitutionality challenged; see Meech v. Hillhaven West, Inc., 238 Mont. 21 (1989)
☐ Punitive Damages: Mont. Code Ann. § 27-1-221 - requires clear and convincing evidence; capped at lesser of $10 million or 3% of defendant's net worth
☐ UTPA Remedies: Mont. Code Ann. § 33-23-101 et seq. - insurers must make advance payments where liability is reasonably clear; provides independent cause of action for bad faith
☐ Modified Joint and Several Liability: Mont. Code Ann. § 27-1-703 - joint and several applies only to defendants more than 50% at fault
☐ Minimum Insurance: 25/50/20 under Mont. Code Ann. § 61-6-103
☐ No Mandatory Insurance Creates Misdemeanor: Mont. Code Ann. § 61-6-302 - $250-$500 fine or up to 10 days jail for first offense
☐ Discovery Rule: Statute of limitations may be tolled for latent injuries discovered after the accident
☐ Venue: Proper in the county where the cause of action arose or where any defendant resides

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[________________________________]
[Attorney Name]
Montana Bar No. [________________________________]
[________________________________]
[Street Address]
[________________________________]
[City, Montana ZIP]
Telephone: [________________________________]
Email: [________________________________]

cc: [________________________________] [Client Name]
Enclosures: As noted above

SOURCES AND REFERENCES

• Montana Code Annotated § 27-1-702 (Comparative Negligence): https://archive.legmt.gov/bills/mca/title_0270/chapter_0010/part_0070/section_0020/0270-0010-0070-0020.html
• Montana Code Annotated § 27-2-204 (Statute of Limitations - Personal Injury): https://archive.legmt.gov/bills/mca/title_0270/chapter_0020/part_0020/section_0040/0270-0020-0020-0040.html
• Montana Code Annotated § 61-6-103 (Motor Vehicle Liability Policy Minimums): https://archive.legmt.gov/bills/mca/title_0610/chapter_0060/part_0010/section_0030/0610-0060-0010-0030.html
• Montana Code Annotated § 61-6-301 (Required Motor Vehicle Insurance): https://archive.legmt.gov/bills/mca/title_0610/chapter_0060/part_0030/section_0010/0610-0060-0030-0010.html
• Montana Commissioner of Securities and Insurance - Auto: https://csimt.gov/your-insurance/auto/
• Montana Motor Vehicle Division - Insurance and Verification: https://mvdmt.gov/vehicle-insurance-and-verification/
• Matthiesen, Wickert & Lehrer - Montana: https://www.mwl-law.com/state/montana/
• Nolo - Montana Car Accident Laws: https://www.nolo.com/legal-encyclopedia/montana-car-accident-laws.html