Bliven Law Firm, P.C.

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Serving all of Montana for over 25 years

Bliven Law Firm, P.C. is a Montana personal injury law firm located in Northwest Montana serving all of Montana. A group of experienced, dedicated professionals who care about their clients’ needs. Our Montana personal injury attorneys have over 25 years of experience in aggressively pursuing the goals of our clients.

CATEGORY ARCHIVES: Insurance

REPRESENTING THE INNOCENT INJURED – NOT THE INSURANCE COMPANIES AND MAYHEM

When your or a family member has been injured in a car wreck because someone else was negligent or worse – criminally reckless like a drunk driver – having a skilled, experienced, dedicated and caring attorney is key. Having a Montana accident injury attorney and law firm – a solid team – that only advocates for you and folks like you, and not the other side on the other days of the week, is also critically important. Getting in a car wreck in Montana, caused by someone acting like an idiot – can cause all kind of mayhem in your life – medical expenses, lost earnings, inability to engage in activities you enjoy, pain, not being able to sleep at night; it can get downright depressing. Yes, I have been through it as the injured person in the car wreck, the victim of negligence and the insurance company and their profit motives. My experience with the people from the company that advertises about their “good hands” and what happens with the mayhem – has helped make me the advocate for the injured and an attorney dedicated to fight those folks every day. We don’t work from the insurance companies and their minions – only the injured folks. Even before I was injured in a car wreck, and then had to hire my own personal injury attorney to deal with the insurance company, I knew the auto insurance companies were not all they claimed to be. My experience in reality was more bitter and educational than I would have liked, as the insurer denied responsibility, and I was compelled ultimately to file suit and proceed with litigation to get justice. However, once you have been run through the insurance company grist mill as they grind up injured people to increase their profits with the delay, deny, defend tactics – it becomes clear that many insurers are at war with the injured in order to increase profits.

The battle rages against justice by many of the big insurance companies, not just in each claim, but at the Legislature and in the courts. Insurance companies have lobbyists writing legislation to make it easier for them to make more money, deprive the injured of just compensation, and the benefit of the bargain in their insurance contracts. The Montana Supreme Court has to decided cases frequently to interpret the laws passed at the Legislature regarding auto insurance carriers. These insurer lobbyist created bills passed by the Legislature, including anti-stacking legislation, are designed to help the insurance companies make more money by paying less on claims. You will probably recognize the names of the insurance companies in these cases. We don’t take cases from the insurance companies to defend the wrong doers – just the injured people. We don’t defend the insurance companies. However, many of these lawyers that work for the insurance companies actually file lawsuits against the injured people. This is called a Declaratory Judgment action – where your own insurance company sues you. Can you believe it? You suffer a devastating injury in a motor vehicle wreck, or you get run over – literally – and your insurance company sues YOU! Yes, insurance companies can and do file lawsuits against their own insured customers to ask the Court to declare that they are not underinsured or are not covered! This is called a Declaratory Judgment action, and I have seen insurance companies sue injured folks – to ask the Court to declare there is no coverage. Can you imagine that – you get hurt and make a claim to recover for your losses under your policy, and the insurance company adds insult to injury by suing YOU. They do this so that they can not only deny payment, but to try to get the upper hand in the litigation they fight against you to try to prevent you getting the benefit of your insurance policy (that they wrote). We only represent the injured person and their family – not the insurance company. This sets us apart from some other local and Montana law firms that advertise on the internet to represent you in injury claims.

Experienced and skilled attorneys that represent (only) injured person – and who do not represent the insurance companies and defend them on the other days of the week and hours of the day – can help get your the results and fair treatment you deserve and have a dedication and commitment that cannot be matched by the fair weather injury attorneys. We identify with your concerns and problems, not those of the claims adjusters and the insurance companies that hire defense attorneys. When it comes the insurance companies and personal injury battles, an injured person is best served by an attorney that does not have a conflict of conscience about going after the insurance companies and holding them accountable. Consumers need a lawyer that works for consumers every day, not the insurance companies half the week and then represents the “other side” – the consumers and victims of the insurance companies on the other days.

At Bliven Law Firm, P.C., Kalispell Montana, we do not have divided loyalties, or conflicts regarding who we represent – we only represent the injured, sick, and the disabled. We represent consumers – not the insurance companies – or their customers that cause the wreck and hurt innocent people. Unlike some of our “competitors” who advertise for injury cases from consumers on attorney websites and lawyer websites to represent the injured – but also or usually take work from the insurance companies (and sometimes even advertise their experience working for the insurance companies as being useful experience) – we don’t work for insurance companies – ever. We find that to be contrary to our mission, which is to represent and assist innocent victims of motor vehicle wrecks, and other injuries caused by the negligence and bad acts of others. Can you imagine Darth Vader getting in a X-wing fighter and getting in formation to help Luke Skywalker attack the ‘Death Star’ known as Big Insurance Company? Sounds ridiculous doesn’t it? In our opinion, lawyers that help insurance companies deprive injured folks of just compensation and defend the insurance companies (and or those who cause the injuries one day), and then say they are going to go all out for injured party in a different case are just as ridiculous. Make no mistake, insurance is big, big business in the United States, and the insurance companies have huge profits at stake – even in claims in Montana.

When injured because of someone else’s negligence, we urge you to hire a Trial Lawyer, not an insurance DEFENSE trial lawyer that works for insurance companies. Before you call an attorney about your injury case to get help, check out their website, phone book ad or other media presence to find out whether they believe in helping innocent victims of injuries, that they actually believe you should obtain just and fair compensation, as all injury victims should receive. If they do insurance defense work, we submit such lawyers are not the best choice to represent you and care for your needs when you are injured and suffer loss.

MONTANA AUTO INSURANCE COVERAGE – CRITICAL FACTS TV ADS DON’T TELL YOU

Television advertising for auto insurance is so frequent that it would be helpful if it contained more useful and helpful information. While saving you money is so frequently the theme, some commercials actually do talk about getting the right coverage, sometimes even discussing the help of an agent. How many of those ads discuss the need for good uninsured motorist coverage or underinsured motorist coverage? When was the last time you saw a commercial that discussed the need for underinsured motorist coverage? Have you ever seen one? When was the last ad you saw that talked about medical payments coverage? Again, have you ever seen one? Why is this?

Uninsured motorist coverage, and underinsured motorist coverage are some of the most critical coverage a person can buy to protect their family, but it appears to be neglected in the advertising. It certainly appears that it not popular enough with customers or a big enough concern among consumers that the insurance companies find it worthy to advertise on the subject. Montana is a state with a small enough population, that the big companies do not seem to be worried about reaching out to Montana consumers in their ad campaigns, or even particularly concerned about running afoul of our law when it comes to advertising. Our Unfair Claims Practices statute – Montana Code Annotated 33-18-201 – as interpreted by the Montana Supreme Court – places burdens on insurers to make an effort to live up the advertising

http://leg.mt.gov/bills/mca/33/18/33-18-201.htm

33-18-201. Unfair claim settlement practices prohibited. A person may not, with such frequency as to indicate a general business practice, do any of the following:

(8) attempt to settle a claim for less than the amount to which a reasonable person would have believed the person was entitled by reference to written or printed advertising material accompanying or made part of an application

If you insurance company has not lived up to its advertising in how it has addressed or handled your injury claim (or your family) arising from a motor vehicle wreck, contacting a Montana attorney that emphasis personal injury law, notably insurance and motor vehicle injury cases is the right decision.

The time to find out that you do not have enough of the right kind of auto insurance is not after having a wreck where you or your family are injured because of the negligence or reckless conduct of an uninsured, or underinsured, drunk driver. Insurance coverage has to be in place before the crash, wreck or other loss. If you are injured in a car wreck and find out that the at fault driver has no insurance, or simply not enough to address the medical expenses and lost wages, much less other damages, it is like being injured all over again. As the Montana Supreme Court so eloquently stated in the Ridley decision:

One of the most significant obligations that innocent victims of automobile accidents incur and for which mandatory liability insurance laws were enacted, is the obligation to pay the costs of medical treatment. If the insurer has no obligation to pay those expenses in a timely fashion, even though liability is reasonably clear, then the protection provided by Montana’s mandatory liability laws would be of little value.

Medical expenses from even minor injuries can be devastating to a family of average income. The inability to pay them can damage credit and, as alleged in this case, sometimes preclude adequate treatment and recovery from the very injuries caused. Just as importantly, the financial stress of being unable to pay medical expenses can lead to the ill-advised settlement of other legitimate claims in order to secure a benefit to which an innocent victim of an automobile accident is clearly entitled. We conclude that this is not what was intended by the Montana Legislature when mandatory liability insurance laws and unfair claims practice laws were enacted.

Ridley v. Guaranty National Insurance Company, 951 P.2d 987 (Mont. 1997)

– See more at: http://caselaw.findlaw.com/mt-supreme-court/1453789.html#sthash.Doyr5aOV.dpuf

However, many people believe that they have “full coverage” and will have enough insurance for the loss. When folks come into the office after a car wreck and tell us they have “full coverage” the prudent response on our part is to ask them if they have a copy of the declaration sheet, the “dec page” that shows the coverages. While having collision and comprehensive coverage can be helpful and are certainly advisable on most policies – the bodily injury limits, medical payments coverage, uninsured motorist coverage, and underinsured motorist coverage ultimately often have more to do with a good outcome. This is because the ability to pay medical bills and recover for lost earnings are far more important in the longer term – and often the short term – than the coverage to pay to have a vehicle repaired.

If your agent did not properly advise you about under-insured or uninsured motorist coverage, did your agent live up to the advertising of the insurance company? Some large insurers run advertising, and have run advertising touting how helpful an agent is and the company is at making sure you the right coverage. They advertise that agents can help make sure you don’t have gaps in coverage or not enough coverage. If you suffered a loss and your agent did not do so, or if the insurance company changed your coverage without your permission or knowledge, contact us. We seek to hold insurers accountable and live up to their promises in their advertising to their insureds, the customers that pay the premiums.

EDUCATION AND RETRAINING KEY FOR RECOVERY FROM WORK OR MOTOR VEHICLE INJURY – IS THE OIL BOOM ENDING?

When injured on the job, or in a car wreck, sometimes injured folks are not able to return to their past work, because it is too heavy or otherwise too physically demanding. Sometimes folks have permanent impairment from a work injury, occupational disease, or other injury, that makes many kinds of work no longer something they can do or sustain. When the past work or trade was skilled and high paying, and the person cannot go back, it can be devastating the injured person and their family. Retraining can help many of these folks obtain skills that will help them make as much or more in a new field, to enter a career that pays as well or more than past work, and has better long term prospects with less risk of injury. This challenge is something many folks are not prepared to face, and need guidance. Also, advanced education is not as accessible or as affordable as it could be. With the impending slow down of high paying jobs in the Baaken oil patch in eastern Montana and western North Dakota, the value of job skills and training are likely to be as important as ever.

http://www.csmonitor.com/USA/2015/0124/Low-oil-prices-chill-a-once-hot-oil-town-in-North-Dakota

http://www.wsj.com/articles/job-engine-running-low-on-gas-as-energy-costs-tumble-1419619419

The production in North Dakota and eastern Montana continues, but the sector is vulnerable. Much of the industry is working hard to keep the production going in the Bakken and the jobs alive:

http://www.arcticgas.gov/2015/north-dakota-community-wants-cut-costs-oil-producers

Many Montana residents have been injured in motor vehicle wrecks, truck wrecks, and industrial accidents and injuries in the Bakken, both in Montana and North Dakota. Many Montana residents have been injured in North Dakota while working for Montana employers, covered by Montana workers’ compensation coverage. These injuries often take the worker out of high paying work. If they cannot go back to the oil fields and those high paying jobs, the question becomes, what is next? Education and training are often the best answer.

However, of the expenses a family incurs that have risen far more than the cost of inflation – higher education and medical expenses have been prominent. Over the past 20 years, the costs of college education, especially at private universities, and health care, have been increasing so fast that they have frequently been in the news. When someone suffers a significant injury in a car accident, regardless of the settlement, the insurance company does not provide or recommend a vocational counselor, or give career and rehabilitation planning advice. They don’t have an interest in the rehabilitation of the injured person, or have the links and roots in the community to vocational and educational resources. This is one of the many ways a local personal injury and workers’ compensation law firm can be of assistance to the innocent victim of someone else’s negligence. At Bliven Law Firm, P.C., we a Kalispell, Montana injury law firm, that represents injured folks against the insurance companies and their lawyers. We are Montana personal injury and accident attorneys that represent the injured, every day of the week, not the insurance companies – not ever.

We represent injured workers in workers’ compensation claims, not employers or insurers – not ever.

In Montana workers’s compensation claims, vocational retraining is sometimes offered by the workers’ compensation carrier – and often not offered at all – as one has to prove a significant amount of disability and a “handicap to employment” under the statute, MCA 39-71-1006. Rehabilitation benefits. 

“(1) A worker is eligible for rehabilitation benefits if:
(a) (i) the worker meets the definition of a disabled worker as provided in 39-71-1011; or
(ii) the worker has, as a result of the work-related injury, a whole person impairment rating of 15% or greater, as established by objective medical findings, and has no actual wage loss;
(b) a rehabilitation provider, as designated by the insurer, certifies that the worker has reasonable vocational goals and reasonable reemployment opportunity. If eligible because of an impairment rating of 15% or more, with rehabilitation the worker will have a reasonable increase in the worker’s wage compared to the wage that the worker received at the time of injury. If eligible because of a wage loss, the worker will have a reasonable reduction in the worker’s actual wage loss with rehabilitation.
(c) a rehabilitation plan is agreed upon by the worker and the insurer and a written copy of the plan is provided to the worker. The plan must take into consideration the worker’s age, education, training, work history, residual physical capacities, and vocational interests. The plan must specify a beginning date and a completion date. The plan must specify the cost of tuition, fees, books, and other reasonable and necessary retraining expenses required to complete the plan.”

In our experience, when a plan is offered by the insurer and their vocational counselor, it is often a minimal plan, designed as much (or more) to minimize the cost to the insurer as it is to assist the injured worker. The vocational and rehabilitation counselor the insurer chooses – as the insurer gets generally to choose under Montana law – has the difficult task of developing a plan that will assist the worker get into another job within the worker’s capacities, but also a plan the claims adjuster that hired them will approve. Therefore, even when retraining is offered by the insurer, the program or benefits are too often do not fully take advantage of the remedies available under Montana law – or as helpful as they could be. It often requires a committed and knowledgeable injured workers’ attorney to seek and retain a vocational rehabilitation specialist to evaluate the injured worker’s limitations and a develop a suitable retraining program. At Bliven Law Firm, P.C., we find it often necessary to consult or retain an independent vocational rehabilitation specialist to evaluate and develop the plan the insurer retained vocational counselor should do. Often, that program involves a proposal for retraining at our local community college, or another program in Montana.

Under Montana law, when an worker has a compensable on the job injury or disease, and they suffer a wage loss as, they can qualify for up to 104 weeks of training.

“(2) A disabled worker is entitled to receive biweekly rehabilitation benefits at the worker’s temporary total disability rate. The benefits must be paid for the period specified in the rehabilitation plan, not to exceed 104 weeks. The rehabilitation plan must be completed within 26 weeks of the completion date specified in the plan. Rehabilitation benefits must be paid biweekly while the worker is satisfactorily progressing in the agreed-upon rehabilitation plan. Rehabilitation benefits payable pursuant to a retraining rehabilitation plan under this section are not payable in a lump sum. Rehabilitation benefits may be paid in a lump sum for job placement services.
(3) In addition to rehabilitation benefits payable under subsection (2), a disabled worker who was injured on or after July 1, 1997, is entitled to receive payment for tuition, fees, books, and other reasonable and necessary retraining expenses, excluding travel and living expenses paid pursuant to the provisions of 39-71-1025, as set forth in department rules and as specified in the rehabilitation plan. Expenses must be paid directly by the insurer.
(4) A worker may not receive temporary total benefits and the benefits under subsection (2) during the same period of time.
(5) A rehabilitation provider authorized by the insurer shall continue to assist the injured worker until the rehabilitation plan is completed.
(6) To be eligible for benefits under this section, a worker is required to begin the rehabilitation plan within 78 weeks of reaching maximum medical healing.
(7) A worker may not receive both wages and rehabilitation benefits without the written consent of the insurer. A worker who receives both wages and rehabilitation benefits without written consent of the insurer is guilty of theft and may be prosecuted under 45-6-301.”

http://leg.mt.gov/bills/mca/39/71/39-71-1006.htm

Qualifying is difficult, and getting real vocational assistance is a challenge. Unfortunately, many injured workers are not aware of the potential for vocational rehabilitation, and insurers and the vocational experts they hire do not make such programs available. Likewise, absent advice, someone recovering from injuries in a car wreck may not see the opportunity to go back to school and use this setback as an opportunity to obtain education and skills that will benefit them for the rest of their work life. Another critical factors is that college education remains affordable and accessible at FVCC and similar institutions. http://www.cnn.com/2014/11/20/living/ivory-tower-community-colleges/

We are fortunate in the Flathead Valley to have an excellent college in Flathead Valley Community College, providing excellent educational opportunities at costs far below even public universities, and our college has many professional training programs, as well as the occupational trades. http://www.fvcc.edu/academics/academic-programs.html

Given the pull of the Bakken oil field in eastern Montana and western North Dakota as a source of high paying entry level work, and the improved economy, the enrollment at the college has gone down recently over what it was at the height of the recession. However, given the crash in the price of crude oil per barrel in the past few months, that situation may be changing. As of December 28, 2014, prices had fallen to $54 per barrel, which makes much of the recent oil development in the United State and Alberta. The high paying entry level jobs driving employment in our region may be slowing – or grinding to a halt in the near future.

http://www.cnbc.com/id/102292094

http://www.businessinsider.com/r-saudis-naimi-says-opec-will-not-cut-output-however-far-oil-falls-mees-2014-12

The challenges to full enrollment at many of the universities and colleges in the region may be coming to end, as the employment situation may be changing very soon. When looking at long term employment in high paying skilled work, education will always be a good investment, especially for younger workers. However, even non-traditional students and those who have been in the work force for 20 years often find returning to college and updating their occupational skills, or even learning a whole new trade or professional skill to be a worthwhile investment that pays many fold over the years in increased earning capacity.

One of the most successful and prominent parts of FVCC has been its growth in the health sciences and allied health professions, bolstered by the completion of the new Broussard Center for Nursing and Health Sciences. http://www.fvcc.edu/2014/10/fvccs-night-broussard-center-showcase-health-care-career-options/

The college has many other technical and science fields, as well as trades. Many local employers partner with the college to hire graduates of these programs.

When resolving an injury case, or workers’ compensation case, we counsel clients to consider taking the “lemons” given to them by the injury – including the disruption to employment and their physical capacities – and considering “making lemonade.” This can be an opportunity to go back to college, or go to college for the first time, and gain valuable skills and certifications for work in a field with long term and steady employment prospects, including the health sciences and skilled trades.

Flathead Valley Community College has degree programs – that can be completed in two years (104 weeks) or less – in many areas that prepare graduates for careers in fields where they can earn a living wage, and many of these careers are in the health sciences, such as nursing, surgical technician, physical therapy assistant. Other fields, such as the occupational trades, Department of Transportation (DOT) commercial drivers license and hazardous materials handling (HAZMAT). While the times change, so do the programs, as regional community colleges are usually more responsive to changes in economic conditions and employer needs for skilled workers than many four year colleges.At Bliven Law Firm, P.C., we do more than just get the case resolved. We believe getting the medical bills and lost wages addressed, and obtaining fair settlements for our clients is not all we are about. In the course of our representation, we seek to provide clients with advice to assist them get not just appropriate treatment, but also vocational and other resources so that they can better their lives and recover as much as possible from the injury. We respect our clients to make their own decisions about how to recover and proceed, but we do offer guidance and advice to assist them in these and related areas, as we not just attorneys at law, but also counselors at law. We often refer clients to vocational and educational resources so as well to assist them in the transition and recovery process. We are willing to advance costs for such evaluations, when appropriate, for vocational and other evaluations so that we can fully advocate for our clients and their needs. This is part of the dedication to our clients.

When choosing a law firm to assist you after a work injury or car wreck, or other injury (or a disability claim), one of the many considerations is whether or not the firm represents insurance companies and employers most of the time, but then takes cases from the injured person when it happens to not be from one the the insurance companies or employers where they get most of their work. In short, they play for either or any team as opportunity presents itself, like some of the law firms in our area that advertise on the internet, or the phone book for injury cases. Can such a law firm really dedicate themselves fully and wholeheartedly to working for you, when they work of the insurance companies and the “bad guys” most of the time? Is their heart really in it when they take a case for an injured person, when in fact they are really defense trial lawyers who spend most of their time defending wrong doers, insurance companies and trying to defeat fair compensation to the injured, sick and disabled? At Bliven Law Firm, P.C., we are Montana Trial Lawyers (MTLA), members of the American Association of Justice (AAJ), and the National Organization of Social Security Claimant’s Representatives (NOSSCR), who have dedicated our adult work lives to representing and helping the injured, sick, and disabled. Whether you retain our firm or not, we recommend that you seek help from a law firm dedicated to fighting every day for the injured – not the insurance companies, large self-insured employers, and their friends.

We believe that a team of lawyers and staff committed to representing the injured, sick and disabled, with experience in these complimentary areas of law – and working with medical and rehabilitation professionals to assist us and our clients, provides our clients with the best possible representation and assistance. This has been our commitment, and will continue to be at Bliven Law Firm, P.C.

WINTER DRIVING DANGERS – CONSIDERATIONS AND REMEDIES

We have recently had the usual dangerous winter driving conditions in Kalispell, Whitefish, Columbia Falls and other areas of Flathead County, Flathead valley, and surrounding areas, such as Lincoln County (Libby, Eureka), Lake County (Polson, Ronan, Mission Valley), Sanders County (Plains, Thompson Falls), Mineral County (St. Regis, Superior), and Glacier County (Browning, Cut Bank). The November ice rain, snow and ice gave way to December ice rain, snow, ice, fog and and other dangerous conditions -particularly in northwest Montana – as Flathead County sits on the west slope of the Swan Range of the Rocky Mountains. While one of the most beautiful places in the world, our weather can make driving more treacherous than it appears, even to local residents. The variable conditions can catch drivers off guard. Reference to local media shows us the dangers out on our roads, and sadly fatal car crashes are simply too common:

http://www.dailyinterlake.com/members/article_3610c362-87df-11e4-93b1-ebad69941f92.html?mode=jam

http://www.kpax.com/category/flathead-county-coverage/

http://www.nbcmontana.com/kcfw/news

In all of Montana we have many injuries in car wrecks. Factors that contribute to the high rate of injury crashes include a unique combination: high travel speeds, bad weather, challenging road conditions, and drunk driving – drunk driving that is unfortunately among the highest rates in the country. According to the latest statistics available in a recent article linked below, Montana ranks second worst,with only North Dakota, our neighbor to the east, with higher (worse) rates:

2. Montana
Drunk driving deaths per 100,000: 9.0
 Total DUI arrests: 4,418 (9th lowest)
 Beer consumption per capita: 41.0 gallons (3rd highest)
Pct. of minors consuming alcohol: 29.7% (7th highest)
pct. of binge drinkers: 19.2% (17th highest)

“Montana was among the states with the highest youth consumption of alcohol and the highest rates of binge drinking among underage residents. Sadly, for every 100,000 people in the state, 3.8 underage residents were killed in drunk driving accidents, second highest in the country. Montana residents, on average, drank 41 gallons of beer per capita, more than all but two other states — North Dakota and New Hampshire. Nearly 20% of minors said they engaged in binge drinking over the prior 30 days, sixth highest in the country. In total, 19.2% of state residents said they engaged in binge drinking over the previous month, among the highest percentages in the country.”

Read more: States With the Most Drunk Driving – 24/7 Wall St. http://247wallst.com/special-report/2014/04/25/states-with-the-most-drunk-driving/#ixzz3N9Vwi3gO

Kalispell, Columbia Falls, Whitefish and the other areas around Whitefish Mountain Resort (formerly known as Big Mountain, as it is still known to most local residents) and Glacier Park are beautiful and provide winter recreation second to none. However, local residents and visitors must always be mindful of the conditions and dangers on our roads. Many of the visitors to the area find our road system that has struggled to keep up with population growth continue to be a challenge. While we look forward to the completion of the US Highway 93 bypass, and we have had significant upgrades to our local infrastructure in the past few years, we still are behind in terms of the infrastructure to handle the amount of traffic as our population grows and the number of visitors to Glacier National Park continues to set records. This creates conditions that are dangerous for local residents and our visitors from other states – as well as Alberta, British Columbia, the rest of Canada. While many of our visitors are from states like Minnesota, Illinois, Wisconsin, the Pacific Northwest and other regions that see much snow and ice, we also have a large number of visitors each year from places like Texas, Arizona and California that do not. Car wrecks that occur even at low speeds can result in serious injuries – despite what insurance claims adjusters – and the “biomechanics experts” and insurance defense attorneys they hire to defend their denials of fair compensation for these injuries say.

At this time of year, snow tires (whether with studs or similar), and careful driving are highly recommended. The use of seat belts at all times is also essential. The failure to utilize a seat belt and ejection from the vehicle are factors in many fatal car wrecks. Wearing a seat belt is a critical and well established way to reduce fatal injuries, regardless of the cause of motor vehicle crashes. Another factor to consider is the time of day or night – at this time of year in particular given holiday parties – staying off the roads after midnight and recognizing that between 1 a.m. and 3 a.m. that a rather significant percentage of drivers on the road that have been drinking – makes staying at home (or at the hotel etc.) a good decision.

One winter driving danger that folks do not consider – in addition to driving without adequate or appropriate tires, awareness of conditions, not using seat belts – is driving (or being a passenger) without adequate insurance coverage.

We have a high rate of uninsured and underinsured drivers in Montana. “Defensive driving” as far as we concerned, also includes carrying substantial uninsured and underinsured motorist coverage to protect your family and passengers from irresponsible drivers on the roads. Underinsured motors coverage is some of the least expensive, and most critical coverage one can purchase. I have seen underinsured motorist coverage of $100,000 for $21 per year. The most challenging part of underinsured motorist coverage is asking for it from your agent or the insurance company, and making sure everyone is covered under the policy you believe is covered under the policy. “Full coverage” means that you have enough insurance and kind of insurance to meet your needs. This includes having substantial med pay coverage, uninsured and underinsured motorist coverage. A good agent will strongly recommend adequate uninsured and underinsured motorist coverage, even insist on it or require you to sign an acknowledgment and waiver if you decline it, or simply decline to write an inadequate policy. An agent should write the policy coverages and sell you a policy with adequate coverage that considers your potential expenses and potential lost earning capacity, among other factors. However, if buying a policy online or over the phone in a few minutes, it requires that the consumer be aware and seek the coverage, or even seek it from a different company if not offered. This is a lot to ask of the consumer, and buyer beware. Of the ways to save money on an auto policy, skipping underinsured motorist coverage is not the way. A better approach would be to increase the deductible for collision or comprehensive coverage. Please also make sure that everyone who lives in your home is listed on the insurance policy, family member or not, so that the insurance company does not have that as a basis to try to deny coverage.

At Bliven Law Firm, P.C., the attorneys are happy to answer questions about your auto insurance converge, including reviewing your policy, and we counsel clients about getting coverage that will address their situation and needs to help protect their family in the event of a motor vehicle crash that results in injuries.

At Bliven Law Firm, P.C., we emphasize representing the insured, sick and disabled. Whether a car wreck, other injury, workers’ compensation injury, or disability claim, we have the skill, experience and dedication to assist you and your family. We are located in Kalispell, Flathead County, Montana, in the heart of the Flathead Valley. We are a law firm the represents the innocent victims injured by the negligence and wrongful conduct of others. We do not represent the insurance companies – or the wrong doers. We are firmly rooted in the community, and we are here to serve you.

ACCUSATIONS OF SEXUAL ASSAULT AGAINST GLACIER HIGH SCHOOL MONTANA, HOW CAN CIVIL LAW PROTECT OUR CHILDREN

811asu055a-300x184Back to School Law:  Accusations of assault and sexual assault on a Glacier High School bus, how can Montana Civil Law protect students?

There are many harmful school yard incidents that seem to be on the increase right here in Montana, including Kalispell, Columbia Falls and Whitefish. This leads to vulnerability among the younger students along with escalating risk of injury or harm.

The focus of this article is student upon student assault and sexual assault along with the duties of the Kalispell School District under Montana Civil Law.  Strong anti-bullying and anti-hostile student environment policies are important but do not help if not properly enforced in a prioritized common sense manner.  While I have no specific evidence of failure to enforce policies in the Glacier High Bus assault case, one student accused of serious assault has already been returned back to school.  While possession of tobacco or marijuana merit immediate suspension and expulsion it appears that allegations of sexual assault and assault do not.

It is my opinion that assault and sexual assault upon another should warrant the suspension and if proven after investigation, expulsion on a much higher priority basis.  If the local Flathead County School Districts fail to prioritize their enforcement of harassment policies, then the more serious incidents will result in severe injuries. In this case, physical and permanent emotional harm to the victims of the alleged assault and sexual assault likely occurred all on a supervised Glacier High School Football Team bus trip.

The parents of Students according to the Daily Interlake and other unnamed sources state their opinion that the Glacier High School officials are trying to “make this go away” or “sweep it under the rug”.  In my effort to be fair to our hard working teachers here in Kalispell and the Flathead, I contacted Kalispell School District Superintendent Darlene Schottle, who refused to respond.

Flathead County Attorney Ed Corrigan has filed some criminal charges in the case.  Under Montana Law, pending investigations and other criminal investigative information is confidential under the Montana Confidential Criminal Justice Act.  Therefore, Flathead County Attorney, Ed Corrigan would be limited in any substantive comment he could make until the matter moves to trial.  Further charges may be on the way since investigations are ongoing and are confidential until the charge is filed.

Therefore, I will examine how our Montana civil justice system may assist in protecting the most vulnerable of our students through an examination of Montana and Federal Civil School Law.  Once again, the focus of this article is student upon student, harassment and assault.

In most cases involving civil suits against a school district, its employees and agents are provided under our United States Constitution protection from liability under the doctrine of sovereign immunity.  This comes from the common law where the State is considered the “King” and a subject may not sue his “King.”  States may waive this immunity under the tort claims act and statute.  The legislature has provided as follows:  Every governmental entity is subject for its torts and the torts of its employees, §2-9-102 MCA.  There are exceptions for police officers and others. The Montana Legislature decides these issues.  As a result of the above statute, tort claims for negligent supervision, violation of policy, negligent infliction of emotional distress and Negligence among other claims may be asserted against Glacier High School. The agents and employees would not be personally liable but if a suit was successful, the Kalispell School District would have the duty to defend and pay the damages in the case of any judgment based upon negligence theories.

The Seminal Case on this subject from the Montana Supreme Court is the case of S.M., et al. v. R.B. an individual, and Missoula School District No. 1., 261 Mont. 552.  The facts of this case involved a four year old special education student who suffered sexual assault by the hands of a third party bathroom aide.  The Court ruled that the legal issue involved whether the teacher or other school personnel knew or should have known of the sexual assault.

To apply the fact to this case, one must speculate as to what may be developed in a civil suit through discovery.  This process involves investigation, taking statements and depositions.  If the facts showed that coaches on the Glacier High School bus knew the other members of the Glacier Football Team had engaged in hazing and harassment of the younger freshmen previously, then it would be reasonable they protect against assault or sexual assault may occur.  The Kalispell School District could also be liable for violating its own harassment policy, even if a prior hazing event were less severe.

The Kalispell School District may also be liable for the Glacier Bus Assaults on the grounds of simple negligence.  The standard for negligence is what actions a reasonable person would under the circumstances to protect physical or mental injury to children.  All of the coaches sat in the front of the bus.  If the coaches were aware of hazing or harassment in the past, it would seem unreasonable not to separate the coaches on different areas of the bus for supervision.  To leave freshman members of a football team with older students on a bus without chaperone may be considered negligent, if school employees knew or should have known something inappropriate would happen.  In my opinion, if a harassment policy were followed, then the escalation would not have occurred.   Therefore the Kalispell School District may be held liable for negligent supervision and negligence.  If found liable, substantial damages for physical and mental injury may be awarded by a jury or judge.

The Glacier High bus assaults may also implicate Federal Law under Title IX.  Title IX is part of the civil rights act, which requires equal protection and due process.  The Courts are split on this particular situation, student upon student assault.  Several Courts around the County have held, “a safe school environment includes the absence of sexual harassment and discrimination.”  Citing Lenz School Security on Student Harassment and Bullying.  Under Title IX, a student, through his parent, may make a claim and receive remedial action and damages along with attorney’s fees.  Moreover, a Complaint to the Federal Department of Education may result in a review of the Kalispell School Districts Title IX funding.

As a counter argument, the facts may conclude that there were no prior incidents, nor any reason to believe that such behavior would occur.  All of the students may have been well behaved at all times in front of staff.  If no reports were made then the assaults may not have been foreseeable.  This is an issue for a jury to decide.  It is unfortunate that our hard working teachers are taking a lot of heat for the tortuous actions of other children whom they supervise.  Only a thorough proper and neutral investigation will sort this out.

As a result of the Title XI funding issue, there may be a high degree of incentive to just “make this go away” quietly.  The silence from Superintendent Darlene Schottle is deafening.  Nonetheless, all students and staff in the Kalispell, Columbia Falls and Whitefish School districts should be on notice that this behavior on a bus is foreseeable and there must be proper supervision.  This again brings us back to priorities.  While tobacco is very bad and should not be allowed, investigations of assault, sexual assault and harassment should take precedence over behavior which does not involve the immediate physical and mental harm of our students.  I would also suggest that when assault is alleged, that a thorough third party neutral investigation takes place promptly, without delay.  Hopefully through this article, and the collective action of the citizens of Flathead County, such an investigation with its results will be published without delay.

LOCAL ATTORNEY OBSERVE INCREASE IN LITIGATION OVER INSURANCE COVERAGE DENIALS

The insurance industry has been increasing profits at the expense of injured victims and its insureds in Montana. Many people try to handle a small to moderate accident injury claim, a business claim or homeowners claim with the insurance adjuster. They also believe that the adjuster is acting in good faith and will do what’s right and under Montana Law they should. The problem with this outlook is that the major insurance companies have unabashedly announced their stated intention to increases profits by increasing denials and reducing payments to rightful claims. In the 90’s most Montana Trial Layers had heard of a “secret verdict” which exceeded 6 figures against Allstate in Butte for bad faith. While this is just rumor the facts have now come out. State Farm, the largest insurer in the state has implemented a program called ACE “Achieving Claims Excellence”. According to a recent article in “Trial Trends Magazine Spring 2011 Edition” by Charles Miller an attorney experienced with insurance practices the purpose of the program is to reduce claim payments.

A State Farm document of understanding with claims employee’s stated State Farm’s Goal is ‘future proofing’ State Farm by ‘cutting $2 billion from operating costs’. Id. Trial Trends. Other insurance companies have implemented similar programs such as Farmer’s bring back a billion campaign which was designed to recover out of the claims department the payments it had to pay in the California Northridge Earthquake.

A retired Montana Claims Supervisor for Farmers Insurance, explained to me how the system worked. A certain amount is set at the first of the fiscal year based upon the profit targets for the company. In Montana for example if there was a lot of hail damage claims then other rightful claims could not be paid. If a supervisor or adjuster paid more than the amount previously set regardless of how unrealistic they would be subject to discipline.

Most of the major insurance companies have stated goals to make their claims department the profit centers of the company. Trial Trends. It has now become clear right here in Montana rightful claims are being denied or payment amounts substantially reduced to reach profit pressures on adjusters. In Montana an adjuster must act in good faith. Also, a claimant is entitled to the full amount of his or her legal damages. Unfortunately much of the profit engineering in the claims centers is coming at the expense of insureds.

People who would normally make a uninsured or underinsured motorist claim which results when the at fault driver did not have coverage or did not have enough coverage now wind up in an attorneys office. A small business owner who needs his insurance to defend him, or a homeowner who needs to make repairs are all more often winding up in legal process than in years past based upon my experience. The reasons that are conveyed to insureds to deny claims would be humorous if true. It is unfortunate that people who pay many of the highest premiums in the Country are not getting the benefit of their bargain with their insurance company. One often cited reason to deny medical payments coverage under an insurance policy it “the other guys will pay it”, but what if they don’t? It can reflect poorly on one’s credit while denying coverage that was paid for with premium dollars.

In my experience of 16 plus years representing people against insurance companies I have seen a substantial increase in cases which would normally be handled without an attorneys help in the past, now require legal assistance because the adjuster won’t, can’t or does not even really have the authority to resolve the claim fairly. While we are able to find relief in almost all the cases we handle there is still a majority of folks who take for granted a denial from an adjuster or just accept substantially less relying on the adjuster’s good faith.

In summary, due to the fact, reduction of claims payments has become the rule of practice, many insureds and innocent victim’s now end up in an attorney’s office. These cases get filed with the Court and take up the public’s limited resources so that the major insurance companies can increase profit shifting the costs onto society. Until more law firms become serious about bad faith the guilded age of company profits will continue to reign.