“Damages” are lawyer lingo for the money that you can recover in a personal injury lawsuit. What, when, and how much compensation you’re granted depends on the nature of your lawsuit and liability of both parties.
First, you should know that there are three types of damages available under Montana personal injury law:
If you file a personal injury lawsuit, it’s important to know if the court in the state where the case is filed operates under a fault or no fault jurisdiction. Montana follows the legal theory of “modified comparative fault,” which means the court will evaluate liability (fault) for both you (the plaintiff) and the defendant to determine if damages should be awarded and how much.
Here’s an example of how modified comparative fault works in Montana:
Linda and Susan are drivers involved in a car accident. Linda was traveling north on Main Street and Susan was approaching from the opposite direction. Linda’s phone buzzed from its spot in her car’s cup holder. She looked down for a moment to see her notification. At that moment when she took her eyes and attention off the road, Linda swerved out of her lane. This caused a head-on collision with Susan’s car. Susan was badly injured and required substantial and ongoing medical treatment. Her car was totaled.
It’s clear that Linda was a distracted driver and didn’t fulfill her obligation to exercise due care while behind the wheel. The court finds that she is liable for $750,000 in economic and non-economic damages.
But the court also finds that even though Susan didn’t cause the accident, she could have reacted a moment sooner and swerved out of Linda’s path. Therefore, Susan is found to be 10% responsible for the crash. The court reduces Susan’s damage award to $675,000, or 10% less than the original award.
Pain and suffering can be harder to assess than economic damages, simply because it’s nearly impossible to put a number on an emotion. Pain and suffering manifests differently, depending on the person and situation. Sometimes it appears as depression, anxiety, loss of sleep, or other mental or emotional issues.
The court can include testimony by therapists or mental health professionals in determining the extent of pain and suffering, and it also considers these questions:
Some states impose a damage cap on non-economic damages in personal injury lawsuits. A damage cap limits the amount you can recover in a lawsuit and is designed to prevent abuse of the non-economic damages system. Often, the state seeks to limit a jury’s ability to award “sympathy damages” (an excessive amount of money) because of the plaintiff’s emotional trauma.
|Dawson v. Hill & Hill Truck Lines, Supreme Court of Montana (1983)|
|Facts: James and Delores Dawson filed a wrongful death action against Hill & Hill Truck Lines that arose from a five-vehicle highway crash. A driver employed by the trucking company tried to pass two vehicles, but it was snowing and impossible for him to see traffic approaching from the opposite direction. His loaded and protruding flatbed trailer was hit by a gasoline tanker truck coming the other direction.
The Dawsons’ 17-year-old son, who was in one of the passenger vehicles being passed by the trucker, was killed. Their teenage daughter was also injured. The Dawsons sued for damages, claiming mental distress and anxiety caused by the loss of their only son.
Considerations: Many state courts follow an 1852 ruling from England that doesn’t permit recovery of damages for mental anguish in a wrongful death action. The Montana Supreme Court rejected the old English decision and determined that “if a jury can evaluate the intangible loss suffered from not having the decedent’s care, comfort and companionship, surely that same jury can be trusted to ascribe damages to grief.”
Result: “The court found that damages for the sorrow, mental distress or grief of the parents of a deceased minor are recoverable in a wrongful death action.”.
Montana law allows punitive damages when the defendant is found guilty of actual fraud or malice. In order to award punitive damages, the court looks at several factors, including:
Montana punitive damages must be less than $10 million or 3% of the defendant’s net worth, whichever is less.
In 1984, the Montana Supreme Court adopted its standard for punitive damages for gross negligence, recklessness, and unjustifiability:
Source: Owens v. Parker Drilling Co.
In the example below, a plaintiff was awarded substantial punitive damages from an economic injury.
|Mary McCulley v. US Bank of Montana, Supreme Court of Montana (2015)|
|Facts: Mary McCulley sued the U.S. Bank of Montana because she claimed the bank offered her a 30-year mortgage on her home but it actually gave her an 18-month bridge loan. She was unable to make the required payments and was forced to sell the property for $40,000 less than the loan balance.
McCulley claimed that the loss of her home caused her to become suicidal. The court found that the harm was both economic (loss of money) and physical (emotional distress).
Result: She was awarded $1 million in compensatory damages (with over three-quarters of that for emotional distress) and $5 million in punitive damages. The reasoning was because the bank “exhibited indifference or reckless disregard for health and safety of McCulley” when it deceptively issued the loan.
The McCulley case is unique from cases with similar facts in other jurisdictions. In most cases like this, the court won’t allow such a high amount of punitive damages.
If you’ve been injured, you might want to try to get a sense of how much you might recover in damages. You can use the following formula to find a rough estimate. Remember that it all depends on a finding of fault, and the court’s finding that the values of the elements below are similar to what you estimate them to be.
Once you’ve assigned a value for each of the items listed above, you can use a multiplier for general damages. This is where you calculate pain and suffering. Serious or long-term injuries will have a higher multiplier. Calculate the total of each of the expenses above and multiply it by a figure between 1.5 and 5.
The multiplier is determined based on issues like the severity of injuries, how much and what kind of medical treatment you’ve received and will receive in the future, whether you’re expected to make a full recovery, whether you’ve been permanently disabled, and other factors.
Regardless of what your estimates are, consulting with a personal injury lawyer is the best way to determine whether you have a case and for how much.
If you or a loved one are injured, set up a system for keeping track of related expenses. Here at Enjuris, we’ve created a free spreadsheet you can download:
If you’re not comfortable with a spreadsheet, you can buy a ledger, or even a regular notebook — but just be sure to keep track regularly. Ask every provider for a receipt after visits, and keep pharmacy and other receipts, as well. Maintain all paperwork in a safe place and make sure that the log entries and receipts match. This will be helpful and necessary information for your lawyer when reviewing your case.
Finally, do your research, ask friends and family for recommendations, or use the Enjuris Personal Law Firm Directory to find a Montana personal injury lawyer for your case.