DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF MONTANA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Montana ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Montana
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[General Counsel / Risk Management / Claims Representative]
[Manufacturer / Distributor / Retailer Name]
[Street Address]
[City, State ZIP]
RE: PRODUCTS LIABILITY CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date of Incident: [Date]
Product: [Product Name, Model Number, Serial Number]
Manufacturer: [Manufacturer Name]
Purchase Date/Location: [Date / Retailer Name]
Claim Number: [If assigned]
Dear [Recipient Name]:
This firm represents [Client Name] in connection with serious personal injuries caused by a defective [Product Name] designed, manufactured, distributed, and/or sold by your company. This letter constitutes our formal demand for settlement under Montana law.
I. MONTANA-SPECIFIC LEGAL FRAMEWORK
A. Products Liability Theories Recognized
Montana recognizes the following theories of products liability:
1. Strict Liability (Restatement (Second) of Torts Section 402A)
Montana adopted strict products liability in Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 162 Mont. 506, 513 P.2d 268 (1973). Under Montana law, a seller of a product in a defective condition unreasonably dangerous to the user is liable for physical harm caused by the defect.
2. Negligence
Traditional negligence claims are available for design defects, manufacturing defects, and failure to warn. Sternhagen v. Dow Co., 282 Mont. 168, 935 P.2d 1139 (1997).
3. Breach of Warranty
Express and implied warranties under the Montana Uniform Commercial Code (Mont. Code Ann. Sections 30-2-313 through 30-2-315) provide additional bases for recovery.
B. Design Defect Standard
Montana applies a consumer expectation test as the primary standard for design defect cases. Under Brandenburger, a product is defective if it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it."
Montana courts have also considered risk-utility factors in evaluating design defects. Sternhagen v. Dow Co., 282 Mont. 168 (1997).
C. Statute of Limitations
Under Mont. Code Ann. Section 27-2-204, the statute of limitations for personal injury claims, including products liability, is three (3) years from the date of injury.
The discovery rule may toll the limitations period until the plaintiff knows or should have known of the injury and its cause.
This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].
D. Statute of Repose
Under Mont. Code Ann. Section 27-1-719, Montana has a ten (10) year statute of repose. No products liability claim may be brought more than ten years after the date the product was first purchased for use or consumption, unless the manufacturer expressly warranted the product for a longer period.
Exceptions: The statute of repose does not apply to claims based on:
- Express warranties extending beyond 10 years
- Fraudulent concealment of a defect
E. Comparative Negligence
Montana follows modified comparative fault under Mont. Code Ann. Section 27-1-702. A plaintiff's recovery is reduced by their percentage of fault, and recovery is barred if the plaintiff is 50% or more at fault.
Our client bears no responsibility for this incident. Our client:
- Used the product for its intended purpose
- Followed all instructions and warnings
- Acted as a reasonable consumer would
F. Punitive Damages
Under Mont. Code Ann. Section 27-1-221, punitive damages are available upon proof by clear and convincing evidence that the defendant was guilty of:
- Actual fraud, or
- Actual malice
Punitive damages are not available for mere negligence or recklessness. The Montana Supreme Court has held that there must be evidence of a "wrongful act done intentionally, without just cause or excuse." Prindel v. Ravalli County, 133 Mont. 1, 319 P.2d 516 (1957).
G. Non-Economic Damage Caps
Under Mont. Code Ann. Section 25-9-411, non-economic damages in personal injury actions are capped at $250,000 in most cases. However, this cap has been held unconstitutional by the Montana Supreme Court in Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488 (1989), for certain claims. The application of the cap should be verified with current case law.
H. Joint and Several Liability
Under Mont. Code Ann. Section 27-1-703, Montana has modified joint and several liability:
- Defendants whose fault is greater than 50% are jointly and severally liable
- Defendants whose fault is 50% or less are severally liable only for their percentage of fault
II. PRESERVATION OF EVIDENCE - SPOLIATION WARNING
YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this product and claim, including but not limited to:
Product-Related:
- The subject product and all component parts
- All exemplar products of the same make and model
- Design documents, specifications, and engineering drawings
- Manufacturing records and quality control documents
- Testing data and safety assessments
- FMEA (Failure Mode and Effects Analysis) documents
- Owner's manuals, instructions, warnings, and labels
- Marketing and advertising materials
Complaints and Claims:
- Consumer complaints involving this product or similar products
- Prior claims and lawsuits involving this product
- Regulatory correspondence (CPSC, FDA, NHTSA)
- Recall notices and service bulletins
Montana courts recognize spoliation sanctions. Destruction of evidence may result in adverse inferences and other sanctions.
III. THE DEFECTIVE PRODUCT
A. Product Identification
| Product Information | Details |
|---|---|
| Product Name | [Full Product Name] |
| Manufacturer | [Manufacturer Name and Address] |
| Model Number | [Model Number] |
| Serial Number | [Serial Number] |
| Date of Manufacture | [Date, if known] |
| Lot/Batch Number | [If known] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
Statute of Repose Verification: The product was first purchased on [Date], which is within the ten-year statute of repose period.
B. Chain of Distribution
The following entities are in the chain of distribution and may bear liability under Montana law:
| Entity | Role |
|---|---|
| [Manufacturer Name] | Manufacturer |
| [Component Supplier] | Component Manufacturer |
| [Distributor Name] | Distributor |
| [Retailer Name] | Retailer/Seller |
C. Product Description
[Describe the product, its intended use, and relevant safety considerations]
IV. THE DEFECT
A. Nature of Defect
[SELECT AND CUSTOMIZE APPLICABLE THEORY:]
DESIGN DEFECT:
The [Product Name] contains a design defect that renders it unreasonably dangerous under Montana's consumer expectation test. The product was more dangerous than an ordinary consumer would expect when using it in its intended manner.
[Detailed description of design defect]
A feasible alternative design existed that would have prevented the injury:
[Describe alternative design]
MANUFACTURING DEFECT:
The specific [Product Name] involved departed from its intended design due to a manufacturing defect:
[Detailed description of manufacturing defect]
FAILURE TO WARN:
The manufacturer failed to provide adequate warnings regarding known risks:
[Describe inadequate warnings and what adequate warnings should have stated]
V. THE INCIDENT
A. How the Injury Occurred
On [Date], at approximately [Time], our client was using the [Product Name] for its intended purpose when [describe what happened].
[Detailed narrative of the incident]
B. Foreseeable Use
Our client was using the product:
- For its intended purpose
- In accordance with provided instructions
- In a manner consistent with product marketing
- As a reasonable consumer would
C. Causation
The defect was the direct and proximate cause of our client's injuries. The injuries would not have occurred but for the defect.
VI. LIABILITY ANALYSIS
A. Strict Liability
Under Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 162 Mont. 506 (1973), your company is strictly liable because:
- The product was in a defective condition when it left your control
- The defect made the product unreasonably dangerous
- The defect caused our client's injuries
- Our client suffered damages
B. Negligence
Your company was negligent in:
- Designing a product with an unreasonable risk of harm
- Failing to adequately test the product
- Failing to provide adequate warnings
- Failing to implement adequate quality control
C. Breach of Warranty
The product breached:
- Express Warranty: [Describe any express warranties]
- Implied Warranty of Merchantability: Mont. Code Ann. Section 30-2-314
- Implied Warranty of Fitness: Mont. Code Ann. Section 30-2-315
D. Comparative Fault
Our client exercised all reasonable care and bears no percentage of fault for this incident. Under Mont. Code Ann. Section 27-1-702, your company cannot establish comparative fault.
VII. INJURIES AND DAMAGES
A. Physical Injuries
As a direct and proximate result of the defective product, our client sustained:
[List specific injuries with diagnoses]
B. Medical Treatment
Emergency Treatment:
- Date: [Date]
- Facility: [Hospital Name]
- Treatment: [Description]
Subsequent Treatment:
[Detail all treatment received]
C. Medical Expenses
| Provider | Service | Amount |
|---|---|---|
| [Provider] | [Service] | $[Amount] |
| TOTAL PAST MEDICAL | $[Total] |
Future Medical Expenses: $[Amount]
D. Lost Wages
| Category | Amount |
|---|---|
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL | $[Total] |
E. Non-Economic Damages
[Describe pain and suffering, emotional distress, loss of enjoyment of life]
Note: The applicability of Montana's non-economic damage cap should be verified with current case law.
F. Summary of Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earnings | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Subtotal] |
| Pain and Suffering | $[Amount] |
| Emotional Distress | $[Amount] |
| Loss of Enjoyment of Life | $[Amount] |
| TOTAL NON-ECONOMIC | $[Subtotal] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
G. Punitive Damages
[If applicable:]
Your company's conduct demonstrates actual fraud or actual malice warranting punitive damages under Mont. Code Ann. Section 27-1-221:
[Describe conduct supporting punitive damages by clear and convincing evidence]
VIII. SETTLEMENT DEMAND
Based upon the clear liability and substantial damages, we hereby demand:
$[DEMAND AMOUNT]
This demand will remain open for forty-five (45) days from the date of this letter, expiring on [Expiration Date].
IX. DOCUMENTATION ENCLOSED
- Medical records and bills
- Photographs of the product and defect
- Photographs of injuries
- Employment and wage documentation
- Expert reports (if available)
- Product documentation and warnings
- [Other relevant documentation]
X. CONCLUSION
This case involves a defective product that caused serious injuries to our client. Liability is clear under Montana products liability law, and damages are substantial. We urge you to evaluate this claim seriously and respond with a fair settlement offer.
If this matter cannot be resolved, we are prepared to file suit in the District Court of [County], Montana, and pursue this matter through trial.
Please contact me at your earliest convenience.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Montana Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
File
MONTANA-SPECIFIC PRACTICE NOTES
Ten-Year Statute of Repose: Critical to verify product was first purchased within ten years. Document date of original purchase.
Comparative Negligence: 50% bar rule - plaintiff cannot recover if 50% or more at fault.
Consumer Expectation Test: Primary test for design defects, with risk-utility factors also considered.
Punitive Damages: Require clear and convincing evidence of actual fraud or actual malice. Mere negligence or recklessness is insufficient.
Non-Economic Damage Cap: The $250,000 cap may be unconstitutional in some cases - verify current law.
Joint and Several Liability: Modified system based on percentage of fault.
Expert Testimony: Required to establish defect and causation in most cases.
Rural Venues: Montana juries may be defense-friendly in rural areas; consider venue carefully.