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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.

TAG ARCHIVES: WHITEFISH

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.

PATIENTS’ RIGHT TO ACCESS MEDICAL RECORDS

Many individuals are complaining that their health care providers refuse to provide them with their medical records. The most important thing you can do is know your rights and make all requests in writing certified mail return receipt requested.

Montana Law provides that upon receipt of a written request from a patient to examine or copy all or part of the patient’s recorded health care information, a health care provider, as promptly as required under the circumstances but no later than 10 days after receiving the request shall:

a. Make the information available without charge during business hours.
b. Inform the patient the information does not exist or cannot be found.
c. Inform the patient that the records are maintained by a third party and where they may be obtained.
d. If there is an unusual delay, provide a clear written explanation of the reason for delay, under which circumstances the health care provider would have 21 days.

Unfortunately, most health care providers will charge for records. Montana Law allows a reasonable fee defined as $15 to search for the file and $0.50 per page copied. So you will likely have to pay for the records.

Concerning situations where a heath care provider refuses to provide the records they must justify the refusal with a clear written explanation. These circumstances include, serious harm to the patient if the records are disclosed or the records contain substantial information of confidential information concerning others.

Many people sign standard releases when they see a physician that allows the provider to disclose your records for any reason. Ask your provider if you have the option of refusing the release, except if requested by another health care provided necessary for your own treatment. Don’t sign blanket releases under any circumstances.

In Montana the legislature has recognized the widespread practice of compiling and selling health care information to insurance companies, marking companies, companies that provide background checks and any other entity who may find your personal health care information useful. In the Legislative Findings the Montana Legislature has recognized wrongful “exchange of health care information from automated data banks” across State lines. Privacy of medical records has also been determined a Montana constitutional right under the Montana Constitution’s Right to Privacy provisions.

If your rights are being violated, you should lodge a Complaint with the Montana Attorney General who can investigate, order release of records and impose fines. You may also file a complaint with the District Court where you live. The Court may order disclosure to you, enjoin wrongful health care dissemination, and award damages to you up to $5,000.00.

In conclusion, when you seek medical treatment ask what the health care provider’s policy is on access to medical records and release of your medical information. Be persistent and demand explanations in writing. This will usually result in access to your medical records. The records are owned by you. Assert your rights.