Montana Personal Injury Demand Letter

PERSONAL INJURY DEMAND LETTER — MONTANA

FOR SETTLEMENT PURPOSES — EVIDENTIARY USE SUBJECT TO MONT. R. EVID. 408

Date: [__/__/____]

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED

SENDER (Attorney/Law Firm)

RECIPIENT (Insurance Adjuster/Claims Department)

CLAIMANT INFORMATION

I. INTRODUCTION AND PURPOSE

Dear [________________________________]:

This office represents [________________________________] ("Claimant") in connection with personal injuries sustained in a [☐ motor vehicle collision ☐ slip and fall ☐ premises liability incident ☐ product liability ☐ other: ________________________________] that occurred on [__/__/____] in [________________________________], Montana. This letter constitutes a formal demand for settlement of all liability claims against your insured, [________________________________] ("Tortfeasor/Defendant"), arising from the above-referenced incident.

This demand is made pursuant to and in accordance with Montana tort law. Montana is a traditional tort state (not a no-fault state) applying modified comparative negligence under Mont. Code Ann. § 27-1-702. If and to the extent this communication constitutes compromise negotiations concerning a claim disputed as to validity or amount, Mont. R. Evid. 408 limits specified uses to prove liability for, invalidity of, or the amount of the claim. The rule preserves other-purpose use and otherwise discoverable evidence, and does not itself make this ordinary demand confidential or privileged. Nothing herein shall be construed as a waiver of any rights, claims, or causes of action.

Claimant has authorized this office to negotiate and settle all claims. A signed letter of representation is enclosed.

II. STATUTORY FRAMEWORK — MONTANA LAW

Key Provisions Applicable to This Claim

1. Modified Comparative Negligence (Mont. Code Ann. § 27-1-702) — Contributory negligence does not bar recovery if the claimant's negligence was not greater than the negligence of the person or combined persons against whom recovery is sought. Any damages allowed are reduced by the claimant's percentage of negligence.

2. Damages cap screening — Before calculating the demand, determine whether the defendant is a governmental entity subject to the tort limits in Mont. Code Ann. § 2-9-108 or whether the claim is medical malpractice subject to the noneconomic limit in § 25-9-411. Apply the governing limit to the actual claim rather than assuming one rule covers every personal injury case.

3. Medical-expense recovery and collateral sources (Mont. Code Ann. §§ 27-1-307–308) — For bodily-injury claims, § 27-1-308(2) limits medical-expense recovery to amounts actually paid or owing for reasonable and necessary treatment and future necessary treatment. Subsection (3) limits the payment evidence used to value that treatment; subsection (4) directs a reduction before judgment when a defendant or its insurer has paid part of the medical obligation before trial. Assess other benefits and subrogation under the statute before calculating a demand.

4. Punitive Damages Cap (Mont. Code Ann. § 27-1-220) — Available upon clear and convincing evidence of actual fraud or actual malice. Capped at the lesser of $10 million or 3% of defendant's net worth (except in class actions).

III. FACTUAL BACKGROUND

A. The Incident

On [__/__/____], at approximately [____:____ ☐ AM ☐ PM], Claimant was [________________________________] at or near [________________________________] (exact location), in [________________________________], [________________________________] County, Montana.

At that time, Tortfeasor was operating a [____] [________________________________] [________________________________] (year/make/model), bearing Montana license plate number [________________________________], traveling [☐ northbound ☐ southbound ☐ eastbound ☐ westbound] on [________________________________].

Description of the incident:

[________________________________]
[________________________________]
[________________________________]
[________________________________]
[________________________________]

B. Emergency Response

C. Police Report Summary

The police report [☐ does ☐ does not] indicate that Tortfeasor was cited for [________________________________] under Montana Code Annotated § [________________________________].

Contributing factors noted in report:

☐ Failure to yield right of way (Mont. Code Ann. § 61-8-339)
☐ Following too closely (Mont. Code Ann. § 61-8-329)
☐ Improper lane change
☐ Running red light (Mont. Code Ann. § 61-8-207) or stop sign (§ 61-8-344)
☐ Excessive speed (Mont. Code Ann. § 61-8-303)
☐ Distracted driving or texting while driving (describe observed conduct; verify any applicable local ordinance)
☐ DUI (Mont. Code Ann. § 61-8-1002)
☐ Reckless driving (Mont. Code Ann. § 61-8-301)
☐ Careless driving (Mont. Code Ann. § 61-8-302)
☐ Failure to signal
☐ Animal collision (wildlife/livestock on roadway)
☐ Other: [________________________________]

D. Witness Information

E. Scene Evidence

☐ Photographs of the accident scene
☐ Photographs of vehicle damage
☐ Video/dashcam footage
☐ Surveillance camera footage
☐ Traffic signal data
☐ Skid mark measurements
☐ Accident reconstruction report
☐ Weather and road condition reports (MDT records)
☐ Property damage estimates/repair records
☐ Event data recorder (EDR/"black box") data

IV. LIABILITY ANALYSIS

A. Montana Negligence Standard

Under Montana law, negligence is the failure to use that degree of care that a reasonable and prudent person would use under the same or similar circumstances. Mont. Code Ann. § 27-1-701. To recover, a plaintiff must prove: (1) the defendant owed a legal duty to the plaintiff; (2) the defendant breached that duty; (3) the breach was an actual and proximate cause of the plaintiff's injuries; and (4) the plaintiff suffered damages. Fisher v. Swift Transportation Co., 181 P.3d 601, 605 (Mont. 2008).

B. Tortfeasor's Negligence

Your insured was negligent in the following respects:

☐ Failed to maintain a proper lookout
☐ Failed to yield the right of way in violation of Mont. Code Ann. § [________________________________]
☐ Operated the vehicle at an excessive speed in violation of Mont. Code Ann. § 61-8-303
☐ Followed too closely in violation of Mont. Code Ann. § 61-8-329
☐ Failed to obey an applicable traffic control device in violation of Mont. Code Ann. § 61-8-201
☐ Operated the vehicle while intoxicated in violation of Mont. Code Ann. § 61-8-1002
☐ Engaged in distracting phone use while driving (describe facts and how it caused the collision; cite a local ordinance only if verified)
☐ Drove recklessly in violation of Mont. Code Ann. § 61-8-301
☐ Drove carelessly in violation of Mont. Code Ann. § 61-8-302
☐ Failed to use due care and caution under the circumstances
☐ Negligent maintenance of premises (premises liability)
☐ Other: [________________________________]

C. Montana Comparative Negligence (Mont. Code Ann. § 27-1-702)

Montana applies modified comparative negligence. Under this statute:

"Contributory negligence does not bar recovery in an action by a person or the person's legal representative to recover damages for negligence resulting in death or injury to the 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:

• Claimant may recover if their negligence is not greater than that of the person or combined persons against whom recovery is sought; damages are reduced by Claimant's percentage of negligence
• Claimant is barred if their negligence is greater than that statutory comparison group

Claimant bears no fault for this incident. The evidence establishes that Tortfeasor was solely responsible:

[________________________________]
[________________________________]
[________________________________]

D. Joint Liability (Mont. Code Ann. § 27-1-703)

Mont. Code Ann. § 27-1-703 uses a modified joint-and-several liability system:

• A party at 50% or less of the combined negligence considered under subsection (4) is generally severally liable only for that party's percentage.
• The remaining parties are jointly and severally liable for the balance after the claimant's share and the shares of settled or released persons are removed.
• Concerted action and qualifying agency can make a party jointly liable for another's negligence.
• The comparison includes the claimant or injured person, defendants, third-party defendants, and settled or released persons. Subsection (6)(c) prohibits comparison to other nonparties, including immune or out-of-jurisdiction persons and persons who could have been but were not joined.

V. INJURIES AND MEDICAL TREATMENT

A. Initial Emergency Treatment

Date: [__/__/____]
Facility: [________________________________] Hospital/Emergency Department
Treating Physician(s): [________________________________], M.D.

Chief Complaints Upon Presentation:

[________________________________]
[________________________________]

Emergency Diagnosis:

☐ Concussion / Traumatic brain injury (TBI)
☐ Cervical spine strain/sprain (whiplash)
☐ Thoracic spine strain/sprain
☐ Lumbar spine strain/sprain
☐ Herniated/bulging disc(s) at [________________________________]
☐ Fracture(s): [________________________________]
☐ Dislocation: [________________________________]
☐ Ligament tear(s): [________________________________]
☐ Meniscus/cartilage tear
☐ Rotator cuff tear
☐ Contusions/abrasions
☐ Lacerations requiring sutures
☐ Internal organ injury
☐ Rib fracture(s)
☐ Hypothermia/frostbite (weather-related)
☐ Post-traumatic stress disorder (PTSD)
☐ Other: [________________________________]

Diagnostic Studies Performed:

☐ X-ray: [________________________________]
☐ CT Scan: [________________________________]
☐ MRI: [________________________________]
☐ Ultrasound: [________________________________]
☐ EEG/EMG/NCV: [________________________________]

Emergency Treatment Provided:

☐ Immobilization (cervical collar, splint, brace)
☐ Wound closure (sutures, staples, adhesive)
☐ Medications administered
☐ Admitted to hospital for [____] days
☐ Air transport/Life Flight to [________________________________]
☐ Discharged with prescriptions and follow-up instructions

B. Hospitalization (If Applicable)

C. Surgical Intervention (If Applicable)

D. Follow-Up Medical Treatment

Primary Care Physician:

• Name: [________________________________], M.D.
• Dates of Treatment: [__/__/____] through [__/__/____]
• Number of Visits: [____]
• Treatment Summary: [________________________________]

Orthopedic Specialist:

• Name: [________________________________], M.D.
• Dates of Treatment: [__/__/____] through [__/__/____]
• Number of Visits: [____]
• Treatment Summary: [________________________________]

Neurologist/Neurosurgeon:

• Name: [________________________________], M.D.
• Dates of Treatment: [__/__/____] through [__/__/____]
• Number of Visits: [____]
• Treatment Summary: [________________________________]

Pain Management:

• Name: [________________________________], M.D.
• Dates of Treatment: [__/__/____] through [__/__/____]
• Number of Visits: [____]
• Treatment Summary: [________________________________]
• Procedures: ☐ Epidural injections ☐ Facet joint injections ☐ Nerve blocks ☐ Trigger point injections ☐ Radiofrequency ablation ☐ Spinal cord stimulator

Chiropractic Care:

• Name: [________________________________], D.C.
• Dates of Treatment: [__/__/____] through [__/__/____]
• Number of Visits: [____]
• Treatment Summary: [________________________________]

Physical Therapy:

• Name/Facility: [________________________________]
• Dates of Treatment: [__/__/____] through [__/__/____]
• Number of Sessions: [____]
• Treatment Summary: [________________________________]

Psychological/Psychiatric Treatment:

• Name: [________________________________], [☐ Ph.D. ☐ Psy.D. ☐ M.D. ☐ LCSW ☐ LCPC]
• Dates of Treatment: [__/__/____] through [__/__/____]
• Number of Sessions: [____]
• Diagnoses: ☐ PTSD ☐ Anxiety disorder ☐ Depression ☐ Adjustment disorder ☐ Other: [________________________________]

E. Current Condition and Prognosis

Claimant's current condition as of [__/__/____]:

☐ Claimant has reached Maximum Medical Improvement (MMI)
☐ Claimant continues to require ongoing medical treatment
☐ Claimant has permanent impairment rated at [____]% whole person

Permanent Restrictions/Limitations:

[________________________________]
[________________________________]

Future Medical Treatment Anticipated:

☐ Continued physical therapy: estimated [____] sessions at $[____] per session
☐ Additional surgery: [________________________________], estimated cost $[________________________________]
☐ Long-term pain management: estimated $[____] per year for [____] years
☐ Long-term medication: estimated $[____] per month
☐ Assistive devices/DME: $[________________________________]
☐ Home modification: $[________________________________]
☐ Future diagnostic imaging: $[________________________________]
☐ Life care plan prepared by [________________________________], estimated lifetime cost: $[________________________________]

Note regarding rural Montana: Due to the limited availability of medical specialists in rural Montana, Claimant has incurred [☐ has incurred ☐ may incur] additional travel expenses for treatment at [________________________________] (nearest specialist center). Travel costs of $[________________________________] are included in the damages calculation below.

VI. DAMAGES CALCULATION

A. Economic Damages (Past)

Note: Determine whether the governmental tort limits in Mont. Code Ann. § 2-9-108 or the medical malpractice noneconomic limit in § 25-9-411 applies before setting damages in this demand.

B. Economic Damages (Future)

C. Non-Economic Damages

Check the claim type and defendant before assessing non-economic damages. Montana's governmental tort limits in § 2-9-108 and medical malpractice noneconomic limit in § 25-9-411 may affect a demand. The medical malpractice limit depends on the filing date specified in that section.

D. Collateral Source Considerations (Mont. Code Ann. § 27-1-307 et seq.)

Mont. Code Ann. § 27-1-308 limits recovery for medical services to amounts actually paid, still owing, or needed for reasonable future treatment, limits the evidence used to value those services, and requires a reduction before judgment for qualifying payments by the defendant or its insurer before trial. List payments and any lien or subrogation claim when calculating this demand:

Note: Reconcile the medical-expense amount with § 27-1-308 before setting the demand. Identify any payments by the defendant or its insurer and resolve applicable liens or subrogation claims in the settlement accounting.

E. Damages Summary

VII. INSURANCE COVERAGE ANALYSIS

A. Tortfeasor's Liability Coverage

Montana Minimum Requirements (Mont. Code Ann. § 61-6-103):

• $25,000 per person / $50,000 per accident (bodily injury)
• $20,000 property damage

B. Claimant's UM/UIM Coverage

☐ UM/UIM claim is being made or reserved
☐ UM/UIM claim is not applicable at this time

C. MedPay/Additional Coverage

VIII. INTEREST (Mont. Code Ann. §§ 25-9-205, 27-1-211)

Mont. Code Ann. § 27-1-211 permits interest as damages when the amount is certain or can be calculated and the right to recover vested on a particular day. Identify the amount and date before claiming prejudgment interest. Section 25-9-205 governs interest on a judgment; its general rate is the Federal Reserve H.15 bank prime loan rate plus three percentage points, without compounding, subject to its contractual-rate exception. Confirm the rate applicable to the judgment rather than using a fixed percentage.

Key Provisions:

• Mont. Code Ann. § 25-9-205: Interest on judgments
• Mont. Code Ann. § 27-1-211: Interest as damages
• Judgment-interest rate: applicable H.15 bank prime loan rate plus three percentage points, unless § 25-9-205(2) applies

Should this matter proceed to litigation, Claimant will seek prejudgment interest in accordance with Montana law.

Interest calculation, if supported:

IX. PUNITIVE DAMAGES (Mont. Code Ann. § 27-1-220)

☐ Not applicable — The facts do not support a claim for punitive damages.

☐ Applicable — The following conduct supports a claim for punitive damages.

Under Mont. Code Ann. § 27-1-220, punitive damages may be awarded when the defendant is guilty of actual fraud or actual malice, proven by clear and convincing evidence.

Montana Punitive Damages Cap (Mont. Code Ann. § 27-1-220(3)):

• The lesser of $10,000,000 or 3% of the defendant's net worth
• Exception: no cap in class action cases

Description of conduct supporting punitive damages:

☐ DUI (Mont. Code Ann. § 61-8-1002)
☐ Excessive speed creating extreme danger
☐ Conscious disregard of known safety risks (actual malice)
☐ Texting while driving at high speed
☐ Hit and run/leaving the scene
☐ Fraudulent concealment of dangerous condition
☐ Other: [________________________________]

[________________________________]
[________________________________]

X. SETTLEMENT DEMAND

A. Demand Amount

Based upon the injuries sustained, the medical treatment required, the economic losses incurred, the non-economic damages suffered, and all applicable provisions of Montana law, Claimant hereby demands the sum of:

$[________________________________]

in full and final settlement of all liability claims against your insured arising from the [__/__/____] incident.

B. Demand Components

C. Response Deadline

This demand shall remain open for thirty (30) calendar days from the date of receipt. If your office fails to respond with a reasonable settlement offer within this period, Claimant will proceed with filing a civil action in the appropriate Montana District Court without further notice.

D. Settlement Conditions

Any settlement is contingent upon:

☐ Full payment of the demanded amount
☐ Release of Claimant's claims against Tortfeasor only
☐ No admission of liability clause acceptable
☐ Resolution of all applicable liens (Medicare, Medicaid, health insurance subrogation)
☐ Other: [________________________________]

XI. RESERVATION OF RIGHTS

Claimant expressly reserves all rights, claims, and causes of action not specifically addressed in this demand, including but not limited to:

☐ Claims against additional tortfeasors or responsible parties
☐ UM/UIM claims against Claimant's own carrier
☐ Punitive damage claims (Mont. Code Ann. § 27-1-220)
☐ Wrongful death claims (Mont. Code Ann. § 27-1-513), if applicable
☐ Claims under Montana Unfair Trade Practices Act (Mont. Code Ann. § 33-18-201)
☐ Claims for additional damages discovered after this demand
☐ Any and all rights to proceed with litigation, including jury trial

NOTICE REGARDING STATUTE OF LIMITATIONS: Mont. Code Ann. § 27-2-204(1) generally prescribes three (3) years for a liability not founded on a writing. Section 27-2-102 generally starts the period on accrual, with limited concealed-facts exceptions; after a claim-specific, defendant, tolling, and future-amendment review, counsel calculates the filing deadline as [__/__/____]. Claimant will file suit prior to that deadline if settlement is not reached.

XII. ENCLOSED DOCUMENTS AND EXHIBITS INDEX

Medical Records and Bills

☐ Emergency room records and billing — [________________________________]
☐ Hospital admission/discharge records — [________________________________]
☐ Air transport/Life Flight records — [________________________________]
☐ Surgical records and operative reports — [________________________________]
☐ Primary care physician records — [________________________________]
☐ Orthopedic specialist records — [________________________________]
☐ Neurological records — [________________________________]
☐ Pain management records — [________________________________]
☐ Chiropractic records — [________________________________]
☐ Physical therapy records — [________________________________]
☐ Psychological/psychiatric records — [________________________________]
☐ Diagnostic imaging reports (X-ray, MRI, CT) — [________________________________]
☐ Prescription records/pharmacy printout — [________________________________]
☐ Medical bills summary — [________________________________]
☐ Life care plan — [________________________________]

Liability/Investigation Documents

☐ Police/crash report — Report #[________________________________]
☐ Photographs of accident scene
☐ Photographs of vehicle damage
☐ Photographs of injuries
☐ Witness statements
☐ Accident reconstruction report
☐ Video/dashcam footage (available upon request)
☐ Traffic citation(s)
☐ MDT road condition/weather data

Income/Employment Documentation

☐ Employer verification of lost wages letter
☐ Tax returns ([____], [____], [____])
☐ Pay stubs (pre-accident and post-accident)
☐ Ranch/farm income documentation
☐ Vocational assessment/rehabilitation report
☐ Disability determination

Insurance Documentation

☐ Declarations page — Tortfeasor's policy
☐ Declarations page — Claimant's UM/UIM policy
☐ Health insurance Explanation of Benefits (EOBs)
☐ Medicare/Medicaid conditional payment letter
☐ Workers' compensation records (if applicable)

Other

☐ Letter of representation
☐ HIPAA authorization
☐ Signed medical releases
☐ Property damage estimate/repair invoice
☐ Rental car receipts
☐ Travel expense documentation (medical treatment)
☐ Other: [________________________________]

XIII. SIGNATURE AND CERTIFICATION

I certify that the information provided in this demand letter is true and accurate to the best of my knowledge and belief, based upon the medical records, documentation, and information obtained during our investigation of this matter.

Respectfully submitted,

______________________________________

[________________________________], Esq.
Attorney for Claimant
State Bar of Montana No. [________________________________]
[________________________________] (Firm Name)
[________________________________] (Address)
[________________________________], Montana [____]
Tel: ([____]) [____]-[________]
Fax: ([____]) [____]-[________]
Email: [________________________________]

Date: [__/__/____]

XIV. SOURCES AND REFERENCES

Montana Statutes

• Mont. Code Ann. § 25-9-205 — Interest on Judgments
• Mont. Code Ann. § 27-1-211 — Interest as Damages
• Mont. Code Ann. § 27-1-220 — Punitive Damages; When Allowed; Limitations
• Mont. Code Ann. § 27-1-307 — Collateral Source Rule (Definitions)
• Mont. Code Ann. § 27-1-308 — Introduction of Collateral Source Evidence
• Mont. Code Ann. § 27-1-513 — Wrongful Death Actions
• Mont. Code Ann. § 2-9-108 — Governmental Tort Liability Limits
• Mont. Code Ann. § 25-9-411 — Medical Malpractice Noneconomic Damages Limit
• Mont. Code Ann. § 27-1-701 — Negligence Standard
• Mont. Code Ann. § 27-1-702 — Modified Comparative Negligence
• Mont. Code Ann. § 27-1-703 — Joint Liability Allocation
• Mont. Code Ann. § 27-2-204 — Statute of Limitations (3-Year Personal Injury)
• Mont. Code Ann. § 61-6-103 — Motor Vehicle Liability Minimum Limits
• Mont. Code Ann. § 61-8-1002 — DUI Offenses

Key Montana Cases

• Fisher v. Swift Transportation Co., 181 P.3d 601 (Mont. 2008) — Elements of negligence

Montana Resources

• Montana Legislature: https://leg.mt.gov
• Montana Judicial Branch: https://courts.mt.gov
• Montana Commissioner of Securities and Insurance: https://csimt.gov