Calculating injury settlement value in Big Sky Country
The vast majority of Montana personal injury cases are settled. This is because both sides want to avoid long, expensive, and emotionally-draining trials.
But how can you be sure you’re receiving a fair settlement?
By approximating your case value ahead of time, you can avoid accepting an unfair settlement offer. Taking the time to calculate your approximate case value also provides you with an opportunity to think about and gather the evidence you need to support your claim.
So let’s go ahead and dive into the numbers.
What’s included in your injury calculation?
In Montana, there are 3 types of damages available to a plaintiff in a personal injury lawsuit:
- Economic damages (sometimes called “special damages”)
- Non-economic damages (sometimes called “general damages”)
- Punitive damages (sometimes called “exemplary damages”)
Let’s take a closer look at each type of damage.
Economic damages are intended to compensate you for the monetary losses associated with your injury. These losses might include:
- Medical expenses
- Lost income due to missing work
- Loss of property or property damage
- Any other out-of-pocket expenses you incurred due to your injury
Economic damages are fairly objective and easy to calculate. The hardest (and most important) part is keeping track of your expenses. This means saving all of your medical bills and receipts.
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
Download in PDF format
Keep in mind that when you’re calculating the monetary losses associated with your injury, you need to include future monetary losses caused by your injury as well. This could include future missed work and the cost of future surgeries that you need to undergo as a result of your injury.
Future damages require some speculation and are more difficult to prove. An experienced Montana attorney can help you calculate your future damages as well as gather the evidence you need to support a claim for future economic damages.
Non-economic damages are intended to compensate you for the non-monetary consequences of your injury. For example, the subjective pain and suffering that you experience as a result of your accident. Non-economic damages vary from case to case, but common examples include:
Non-economic damages are more difficult to prove than economic damages. Keeping good records can help.
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format
Punitive damages are money damages that may be awarded to a plaintiff in addition to compensatory damages. There are two primary purposes for awarding punitive damages:
- To punish the defendant
- To deter others from engaging in similar misconduct
Punitive damages are usually not awarded in personal injury cases. In Montana, punitive damages are only available in cases involving fraud and/or actual malice. In a personal injury case, fraud is generally not a factor. However, the defendant may have acted with actual malice in a personal injury case.
So what is actual malice?
Under Montana law, a person acted with actual malice if they:
- Had knowledge of facts that created a high probability of injury to the plaintiff, and
- Intentionally proceeded to act despite the high probability of injury.
For example, if a person is intoxicated and decides to drive, that person likely acted with actual malice because they were aware that driving drunk creates a high probability of causing an injury, and nevertheless proceeded to drive.
Punitive damages are difficult to prove. In Montana, a plaintiff seeking punitive damages must have “clear and convincing evidence” that the defendant acted with actual malice. This is a higher level of proof than that required to prove negligence.
Personal injury damages formula
Many insurance adjusters and attorneys in Montana use a formula to arrive at a rough estimate of how much a person’s claim is worth. Here’s the formula:
Special damages x 1-5 (depending on the severity of the injury)
+ lost income = damages.
For example, let’s say you sustain a traumatic brain injury in a car accident and incur $200,000 in medical bills. Let’s also say that, because of your injury, you miss 1 year of work for which you would have been paid $40,000. Your formula might look like this:
$200,000 x 5 (because a traumatic brain injury is considered to be a very serious injury) = $1,000,000 + $40,000 = $1,040,000 (total estimated damages).
Keep in mind that this is only a starting point. The amount can go up or down depending on a number of factors, including:
- Quality of your medical evidence
- Length of your recovery
- Permanence of your injury
- How your injuries impact your day-to-day life
Typical Factors Used to Determine Injury Claim Value of an Accident
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Also keep in mind that because punitive damages are so rare and speculative, insurance adjusters and attorneys don’t generally consider them at all when calculating a rough case value.
Are there any factors that can reduce or limit my claim?
Montana has damage caps that limit the amount of damages a plaintiff can recover in certain situations. These situations include:
|Montana Damage Caps|
|All cases||Damages must be “reasonable”||MCA § 27-1-302|
|Medical Malpractice||Non-economic damages capped at $250,000 per incident||MCA § 25-9-411|
|Punitive Damages||The lesser of $10 million or 3% of defendant’s net worth||MCA § 27-1-220|
|Breach of Obligation||No more damages than the plaintiff would have received for the full performance of the obligation||MCA § 27-1-303|
|Government Defendants||$750,000 for each claim and $1.5 million for each occurrence||MCA § 2-9-108|
|Dram Shop||$250,000 for punitive damages and $250,000 for non-economic damages||MCA § 27-1-710|
There are 2 additional factors that could reduce your personal injury award. These 2 factors are:
- Your own negligence
- Your failure to mitigate your damages
Let’s look at these two factors more closely.
Factor #1: The plaintiff’s own negligence
In Montana, the amount of damages you can recover is reduced by a percentage that reflects your degree of fault – so long as you’re not more than 50% at fault. This is called the “modified comparative fault” theory.
Let’s say that while you were crossing the road, you were struck by a driver who was busy looking at their cell phone. Let’s also say that the pedestrian walk signal said “do not cross” when you crossed the road. A jury might find the driver 80% at fault for the accident, while also finding you 20% at fault for the accident.
Under Montana’s modified comparative fault theory, you would only be able to recover 80% of your total damages from the defendant.
But what happens if the jury found you 51% at fault for the accident? If you’re more than 50% at fault, you’re completely barred from recovering any damages from the defendant.
Factor #2: Failure to mitigate damages
In Montana, plaintiffs also have an obligation to “mitigate their damages.” This means that plaintiffs who have been wronged must make reasonable efforts to limit the resulting harm. Failing to do so might prevent the recovery of damages that could have been avoided through reasonable efforts.
For example, let’s say you’re injured in a car accident and your doctor asks you to follow up with them every month. But you ignore your doctor’s request and don’t see your doctor for 6 months. As a result, the defendant is able to show that had you followed up with your doctor as requested, it would have taken you less time to recover from your injury and you would have experienced less pain.
Under the defense of failure to mitigate damages, you likely won’t receive damages for the extra time it took you to recover and the extra pain you experienced that could have been avoided by listening to your doctor.
If you believe you’re ready to file a personal injury claim, consider contacting an experienced Montana attorney first. Your attorney can help you sort out the details of your accident, calculate the potential value of your injury case, and make sure you receive all the compensation you deserve.
See our guide Choosing a personal injury attorney.