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It can happen in the blink of an eye. It can devastate your car, your wallet, even your life. Does your car insurance company cover personal injury? Don’t let slick TV ads and catchy jingles lead you down a road of mayhem. There are some critical aspects of car insurance that every insuree must consider to secure their care if they are injured in an accident. From a personal injury standpoint considering plans comprehensively, and not just the cost per month, will pay off in dividends if an accident occurs. The following will help you to better navigate vehicle insurance plans. Let’s look at them from a personal injury standpoint assuming you were in a wreck in which you were not at fault, such as being rear-ended at a red-light. Montana law requires every driver to have liability insurance that covers a minimum of $25,000 per person. Although it is unlawful, not all drivers are insured. An example we see of this every day, is the at-fault driver simply procrastinated and forgot to renew his auto policy. In this case Uninsured Motorist (UM) coverage would kick in the $25,000.00 that would otherwise be paid by the insurance of the other driver. The amount paid by UM would take care of burdens like medical bills as well as wages lost due to the injury. Underinsured Motorist (UIM) has been said to be the most crucial policy to carry. The difference between UIM and UM is simply that while UM kicks in if the negligent driver is uninsured UIM comes into play when the other driver has only liability insurance but your damages are in excess of the liability limits, which, often times is only the minimum of $25,000. In this event, you want to ensure that you purchased both UM and UIM coverage; otherwise, only the liability limits may be available to cover your damages. Make sure to inquire about UIM at your insurance office as it is a very reasonably priced product but is rarely brought up during the routine sales pitch. We highly recommend UIM. A coverage option that pays out regardless of fault is Medical Payments coverage, commonly referred to as “Med-Pay”.Med-Pay is usually sold in increments ranging from $1,000.00, $2,500.00 and $5,000. Again regardless of fault, Med Pay will kick in the insured amount for those in the vehicle associated with the policy. Okay, it’s time to look at the other side of the equation. We’ve considered scenarios that will help you cover your losses if you are innocent in a car accident. What if you are the negligent driver? There is a particular policy we suggest you consider. Bodily Injury (BI) coverage balances the insurance equation by protecting the at-fault driver. In general BI policies are covered based on one’s evaluated assets and cash with no less than the required $25,000.00 coverage being in place. BI is important to consider obtaining so that if you do cause an accident you will have a plan to cover the injuries of those in the other vehicle. If you are not covered and you cause an accident, it is lawful and likely that those in the other car will prosecute you for their medical costs. To evaluate your existing policy, flip back to the Declarations, or “dec”, page. There you will find the details in which your policy is laid out. If you are in the market for a new insurance company make sure that the company you choose is reputable and is known for putting its clients first, not catching them with an ad and then throwing them to the sharks.

Spoon Gordon Ballew Attorneys at Law, PC Blog Post

Article published on forbes.com | August 6, 2018 For entire article visit: https://www.forbes.com/sites/robertwood/2018/08/06/trump-tax-law-hurts-injury-suit-settlements/#3a963ca922c6 Serious accident cases can produce tax-free money to clients. The injuries might be from an auto accident, slip and fall, medical malpractice, industrial accident, or drug or medical device case. If the plaintiff suffers physical injuries or physical sickness, compensatory damages should be tax free. But this tax-free treatment only apples to compensatory damages. Punitive damages and interest are taxable, and there are key changes under the Trump tax law. To qualify for tax-free treatment, the injuries must be physical. Emotional distress is not enough, and physical symptoms such as insomnia, headaches and stomachaches are normal byproducts of emotional distress, says the IRS. Exactly what injuries are “physical” is confusing. If you make claims for emotional distress, your damages are taxable. In contrast, if you claim that the defendant caused you to become physically sick, those damages should be tax free. Yet, if it is emotional distress that causes you to become physically sick, even that physical sickness will not spell tax-free damages. However, if you are physically sick or physically injured, and your sickness or injury produces emotional distress too, those emotional distress damages should be tax free. If you are confused, you are not alone. The chicken or egg distinction can hinge on which words you use. Plus, this area has seen major changes under the Trump tax law. If you are the plaintiff with a contingent fee lawyer, you usually will be treated (for tax purposes) as receiving 100% of the money recovered by you and your attorney. This is so even if the defendant pays your lawyer directly. If your case is fully nontaxable (say, an auto accident in which you are physically injured, where you receive only compensatory damages), that should cause no tax problems. But if your recovery is taxable, all or in part, you could be in tax trouble. Let’s start with a fully taxable recovery, since the math there is easier to follow. Say you settle a suit for intentional infliction of emotional distress you brought against your neighbor for $100,000. Your lawyer keeps 40%, or $40,000. You might think that you would have $60,000 of income at most. Instead, you will have $100,000 of income. Up until the end of 2017, you could claim a $40,000 miscellaneous itemized tax deduction for your legal fees. You faced limitations on your deduction, but at least it was a deduction. In 2018 and thereafter, there is no deduction for these legal fees. Yes, that means you collect 60%, but are taxed on 100%. Notably, not all lawyers’ fees face this terrible tax treatment. If the lawsuit concerns the plaintiffs’ trade or business, the legal fees are a business expense. Those legal fees can be deducted ‘above the line,’ the best kind of deduction. Mathematically, it is like not having the income in the first place. If your case involves claims against your employer, or certain whistleblower claims, there is also an above-the line deduction for legal fees. That means you can deduct those legal fees on the first page of your IRS Form 1040. It is essentially like not having the lawyer fee income in the first place. But outside of employment, specific whistleblower claims, and your trade or business, be careful. You get no tax deduction at all for the legal fees, unless you are awfully creative. There are sometimes ways to circumvent these attorney fee tax rules, but you’ll need sophisticated tax help to do it, and nothing is foolproof. What about a case that is partially taxable and partially tax-free? Remember, punitive damages and interest are always taxable, even if your injuries are 100% physical. Suppose you are injured in a car crash. Thereafter, you collect $50,000 in compensatory damages and $5 million in punitive damages. The $50,000 is tax free, but the $5 million is fully taxable. What’s more, you can’t deduct your attorney fees. If you pay a 40% contingent fee, $2 million of that $5 million goes to the lawyer, with the client netting $3 million. But the tax law says the client receives (and must report) the full $5 million. Because the case does not arise out of employment or a trade or business, any taxable money is 100% taxable, even if 40% goes to the lawyer. This no deduction rule is catching many people by surprise. There are sometimes ways to address it, but it requires tax help, preferably before the case settles. Here’s another example. Suppose a case settles for $2 million, and is 50% compensatory for physical injuries. The other 50% is for punitive damages or interest. There is a 40% contingent fee, and it is divided 50/50 too. That means the client nets $1.2 million in cash out of the case. But the IRS divides the $2 million case recovery in two, so the client is taxed on $1 million. And the client cannot deduct any of the $800,000 in legal fees. Sometimes, one can justify an allocation of legal fees that is not strictly pro rata, but you need to document it. And the IRS may not agree. The same kind of attorney fee tax problems occur where there are interest payments, instead of punitive damages. You might receive a tax-free settlement or judgment, but interest is always taxable. For tax purposes, whether you collect pre-or post-judgment interest isn’t important. It is taxable, and the legal fees on that part of the case cannot be deducted. There are no easy answers to these problems, but sometimes you can improve on these dire tax results. Settlements are usually better for taxes and tax planning than judgments. And getting tax advice before a case settles is a good place to start.

The term “personal injury” is quite broad and includes many different areas of the law. In a general sense, personal injury litigation is the process of seeking money for harm or damage caused to one person by another. That harm can be anything from a broken bone to damage to one’s professional reputation from another’s false statements. In order for one person or entity (the plaintiff) to be able to recover money from another person or entity (the defendant), the plaintiff must be able to show that the defendant had an obligation to do something or act in a certain way and failed to do it or acted in a way that injured the plaintiff. A defendant’s obligation to act in a certain way (the defendant’s “duty”) can come from laws passed by the legislature and signed into law by governor (called a statutory duty) or general principals the courts have recognized over time (called a common law duty). The most familiar example of a common law duty is something we each have at all times and is a duty to use reasonable care to avoid injuring others. If someone fails to act like a reasonably prudent person and causes another injury, we call that failure negligence. Take for example a man speeding through uncontrolled intersections in the University District while fumbling with his iPhone, trying to find his favorite Bee Gees song (let’s say “Stayin’ Alive”) and not looking at the road in front of him. Would a reasonable person do this? The law says no, a reasonable person would drive with his eyes on the road, slowing for each uncontrolled intersection and pull over if he wanted to find that special Bee Gee’s ballad. His failure to operate his vehicle in a safe and prudent manner is called common law negligence and if his negligence is the cause of an accident, he will be responsible for paying any damages he causes to an innocent person who found her favorite Bee Gees song (“Night Fever”) on her Samsung Galaxy before she got on the road. The careless driving of the “Stayin’ Alive” fan is also a violation of Montana law. The legislature has passed laws requiring us all to pay attention to the road when we drive and avoid speeding. The law, 61-8-302, MCA, requires each and every “person operating or driving a vehicle on a public highway” to “drive it in a careful and prudent manner that does not unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the highway.” If the “Stayin’ Alive” fan violates the law and causes a car wreck with the “Night Fever” fan, his violation of Montana’s careless driving statute is a violation of a duty imposed by statute. Personal injury law encompasses much more than car accidents. Below are just a few of the different types of personal injuries the law recognizes and allows one person to sue another for: Products Liability: if a company manufactures or sells a defective product to a consumer, and the consumer is injured by the defective product, the consumer can sue any entity in the chain of distribution for his or her damages. For example, if Company A manufactures a wing nut that Company B uses along with a bunch of other parts to construct a finished chair, both Company A and Company B would be responsible if the wing nut was defective and caused the chair to collapse and injure the person who bought it. In addition to Companies A and B, both Distributor A who sold the finished chair to Retailer A, and Retailer A who sold the chair to the public would be responsible for any injuries or damages the consumer suffers as a result of the defective wing nut. Premises Liability: more commonly called “slip and fall,” these lawsuits involve a plaintiff who is injured by a dangerous condition in a building or on a piece of property. In Montana, the owner or possessor of a piece of property (whether it is a house, business or piece of land) must warn anyone who enters the property of hidden and lurking dangers as well as open or obvious dangers that the owner or possessor has reason to know may cause harm to someone on the property. For example, let’s say if the owner of a rental house is aware of a broken downspout that causes water to pool and freeze right outside of the front door to the house Defamation & Libel: if someone lies about you or your business and their lies harm your personal or professional reputation, you can sue them for defamation. These lawsuits require that the damaging statements are actually false. If the defendant can prove that what he or she said was true, they will win any suit. If the plaintiff can show the defendant intentionally lied to injure his or her reputation, the court may allow an award of punitive damages to punish the defendant for his or her malicious lies. Libel is the term used for a harmful untruth about someone that has been published in print, writing, broadcast through radio, television or film. Professional Malpractice: doctors, lawyers, accountants and other professionals are required provide services that meet the professional standard of care for their occupation. Whether or not a plaintiff can sue a professional defendant depends on whether another, independent professional in the same occupation is willing to testify that the defendant did not meet the professional standard of care for that occupation. For example, to sue an defendant orthopedic surgeon for a surgery gone wrong, the plaintiff-patient must find and pay another orthopedic surgeon to testify that the defendant failed to use the degree of care required of surgeons under the circumstances. Similarly, if a plaintiff wants to sue his or her lawyer for losing a case, he or she needs to find another lawyer who practices in the same area of law to provide testimony that the defendant lawyer didn’t act like a reasonable professional, which caused the plaintiff to lose his or her case. Other Personal Injuries: the law also allows a plaintiff to recover for various other injuries to his or her physical body and mental state.

Work Related Injuries: if an employee is injured on the job and the employer has workers’ compensation insurance, the employee will be compensated for his or her injuries regardless of who is at fault, or if no one is at fault. However, in exchange for this “no fault” compensation for work related injuries, employees are not permitted to sue their employers except under the most extreme circumstances.
Toxic Torts: if a company dumps pollution into the public’s water, air and in doing so, causes injury illness or death, the company can be sued for what is called a “toxic tort.” With Montana’s history of mining, these actions have special significance to the public.
Unfair Insurance Claims Practices: Montana has some of the strongest laws in the nation that govern the behavior of insurance companies. Montana’s Unfair Trade Practices Act (UTPA) requires an insurer to be fair with claimants and their own policy holders. Under § 33-18-201, insurers have specific prohibitions against denying claims without doing a thorough investigation based on all available evidence, compelling their policy holders to file suit in order to obtain benefits, and offering substantially less to a claimant than what he or she is entitled to. The UTPA prohibits “bad faith” practices and is a very strong tool for injured claimants seeking compensation from an insurer. If an insurer violates provisions of the UTPA, it can be subject to significant punitive damages.
Consumer Protection Claims: Montana law, like its federal counterpart, prohibits unfair or deceptive practices in the conduct of any trade or commerce. Section 30-14-101, et al. The Consumer Protection Act (CPA) provides stiff penalties for any business engaged in unfair or deceitful acts, including awarding a successful plaintiff attorney’s fees and multiplying the plaintiff’s damages by three (3) times (called “treble damages”). A familiar example of an unfair, deceptive practice that is covered under the CPA is a used car dealer manipulating the mileage on a vehicle in order to charge a customer more. Or, if that same used car dealer misrepresents the car’s accident history in order to make a sale, that behavior would give rise to a claim under the CPA.

This list is certainly not exhaustive. Personal injury law is a very broad area of practice with many different subspecialties. It is important to find an experienced and reputable attorney for any personal injury case. Speak to several attorneys to get a sense of how they practice and whether they have experience in the specific legal practices your case demands. The attorneys and staff at Spoon Gordon Ballew are dedicated to providing the highest level of legal services to our clients and community.

If you own a house, a business or a piece of property, you have probably worried about whether or not you can be held responsible for “slip and fall” injuries. The following is a brief explanation of the general rules of premises liability. The law in Montana used to separate people coming onto your property into categories (those you invite, those who have permission to enter onto your land, trespassers, etc.). Many states still use these categories to determine what, if any, duty a landowner owes a person on his or her property. The states that still separate people based on their status use that status to determine the nature and extent of the landowner’s responsibility to them. This responsibility is called the landowner or possessor’s “duty of care” and it depends on what the property is used for (business or private) and the status of the person who gets injured. For example, for states that still use the categories described above, the owner or possessor of a building or piece of land generally does not owe any duty to make the premises safe for a trespasser. In other words, the duty of care owed to trespassers is the lowest under the law for states that still use the entrant categories. Similarly, an owner’s duty of care is significantly higher to people he or she invites onto his or her property, called “invitees.” For invitees, these states usually impose a duty to use reasonable care to keep the property free from hidden dangers (for example, a landowner may be held liable for injuries to an invitee caused by a missing rung on a ladder used to access a dark basement). At the same time, a property owner is generally not responsible for injuries caused by an open, obvious or known danger on his or her property (like a snow berm that is obvious or that an invitee has crossed once but is injured when trying to cross a second time). Montana is different, however. We have abolished the use of entrant categories to determine a landowner’s duty of care. In place of that nuanced system still used in many states, Montana has adopted a uniform duty of reasonable care, regardless of the status of the person on the property. The rule in Montana is that if you own or possess a building or piece of property, you owe everyone (even trespassers) the same duty to use reasonable care in the maintenance of your building or land. This duty requires owners or possessors of property to warn of any

hidden or lurking dangers, and
open and obvious dangers that, despite being open or obvious, the owner should anticipate will cause harm to those on the property.

Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 755-756 (1997). The Court has stated this duty in another way:

In other words, the possessor of the premises may no longer avoid liability simply because a dangerous activity or condition on the land is open and obvious; this includes avoiding liability for open and obvious natural accumulations of ice and snow. Rather, the possessor of the premises may only be absolved from liability for injuries resulting from open and obvious dangers if he should not have anticipated harm to occur.

Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 756 (1997). But, the Court has said, “[t]his does not mean that the possessor of the premises is an absolute insurer of the safety of the premises. […] Instead, whether the possessor of the premises should have anticipated harm depends on “the degree of ordinary care which reasonable persons would use under the same or similar circumstances.” So what does that mean for someone who owns a house or business in Montana? First, it doesn’t matter whether someone on your land is a trespasser or customer. The duty to use reasonable care extends to anyone and everyone who foreseeably comes into your building or onto your land. Second, it doesn’t matter how snow or ice got onto your property, a concern that used to matter in Montana. Third, you must either repair or warn any hidden or lurking dangers, as well as any open and obvious dangers if you have reason to know they might cause harm. Whether or not you should anticipate harm from an open or obvious danger depends a lot on what use the building is put to, as well as whether or not you have any notice of the condition causing injury or harm in the past. For business owners, take quick action whenever you receive notice of a problem with your property. If you have received a complaint about an issue on your property but fail to do anything about it, you are probably going to be responsible for injuries it causes in the future. For members of the public, watch where you are going and take extra care during the winter months.

The False Claims Act (FCA), 31 U.S.C. §§ 3729 – 3733 was enacted in 1863 by a Congress concerned that suppliers of goods to the Union Army during the Civil War were defrauding the Army. The Act provided that anyone who knowingly submitted a false or fraudulent claim to the government was responsible for twice the government’s damages, plus a fine. Over the last 150 years, the FCA has been expanded and extended by virtually every administration, republican or democrat, because it efficiently promotes the active recovery of claims fraudulently submitted to the government. Many states, including Montana, have enacted similar laws for claims submitted to the state. The success of the FCA is in large part due to the incentive it provides those with knowledge of fraudulent billing practices involving the government.

The False Claims Act

The FCA is unique in that it provides a private right of action (the right to file a lawsuit) to recover false or fraudulent claims submitted to the government. Typically, individuals do not have any right of action against a party that harms the United States, but the FCA contains an ancient legal device called a “qui tam” provision (from a Latin phrase meaning “he who brings a case on behalf of our lord the King, as well as for himself”). This provision allows a private person, known as a “relator,” to bring a lawsuit on behalf of the United States, where the private person has information that the named defendant has knowingly submitted or caused the submission of false or fraudulent claims to the United States. The relator need not have been personally harmed by the defendant’s conduct. The relator who comes forward with unique knowledge of the fraud can file a complaint on behalf of the United States Government and shares in the recovery of the funds fraudulently billed. The FCA then provides the government with the opportunity to pursue the fraud and attempt to recover it, or decline to take any action. Depending on whether the government decides to intervene or not, a relator is entitled to anywhere from 15% to 30% of the total amount recovered. Depending on the circumstances, this could mean that the relator is entitled to several million dollars for assisting the government in recovering fraudulently obtained funds.

Liability

The statute begins, in § 3729(a), by explaining the conduct that creates FCA liability. In very general terms, §§ 3729(a)(1)(A) and (B) set forth FCA liability for any person who knowingly submits a false claim to the government or causes another to submit a false claim to the government or knowingly makes a false record or statement to get a false claim paid by the government. Section 3729(a)(1)(G) is known as the reverse false claims section; it provides liability where one acts improperly – not to get money from the government, but to avoid having to pay money to the government. Section 3729(a)(1)(C) creates liability for those who conspire to violate the FCA.

Damages and Penalties

After listing the seven types of conduct that result in FCA liability, the statute provides that one who is liable must pay a civil penalty of between $5,000 and $10,000 for each false claim (those amounts are adjusted from time to time; the current amounts were $5,500 to $11,000, but have recently increased dramatically) and treble the amount of the government’s damages. Where a person who has violated the FCA reports the violation to the government under certain conditions, the FCA provides that the person shall be liable for not less than double damages. On February 3, 2017, the Department of Justice (DOJ) announced that False Claims Act (FCA) penalties will once again be increasing, effective immediately. Pursuant to the 2015 budget bill, which requires annual re-indexing of FCA penalties for inflation, the minimum per-claim penalty will increase to $10,957 (it jumped from $5,500 to $10,781 last year). The maximum per claim penalty will increase to $21,916 (after jumping from $11,000 to $21,563 last year). The penalties will continue to be adjusted each year to reflect changes in the inflation rate, required to be done no later than January 15th of every year. Each agency is to publish regulations in the Federal Register that note the adjustment of civil monetary penalties (CMP) within its jurisdiction. These penalties are assessed per claim submitted to the federal government, meaning that any one case can result to countless instances of false claims being submitted. For example, one of the most common types of FCA cases is in the healthcare industry. It is no surprise that the federal government spends enormous amounts of money on health care in the form of Medicare and related programs. Employees of hospitals, nursing homes, or other health care providers often have access to documents and information that could show overcharging of patients, or charging for services never provided, which are often then submitted by the hospital to Medicare or Medicaid for payment. Each time one of these claims is submitted (even if it overcharged the government $1, gives rise to a separate penalty of anywhere between the minimum of $10,957 and the maximum of $21,916. Considering the number of patients treated each day at any given institution, the fines alone can total tens of millions of dollars. Although the healthcare industry is particularly susceptible to FCA claims, it is only one example of how the FCA is applied. The Act would also apply to military defense contractors or anyone contracted by the federal government to provide a good or service. Wherever someone is being paid by the government, the possibility for a claim under the FCA exists. The Act also applies where an individual or entity avoids an obligation to pay (or repay) the federal government. So, if an entity such as a hospital submits a claim it believes to be legitimate and is paid by the federal government, the entity can still be liable under the FCA if it subsequently determines it is not entitled to the payment.

Conclusion

Committing fraud in order to obtain money or benefits from the government, whether it is the state or the federal government, is a huge risk. Not only is it a crime that has sent many people to prison with long sentences, it also exposes companies and individuals to incredibly severe financial penalties. Because the FCA allows individuals with unique knowledge of the fraudulent practices to sue on behalf of the government and keep a portion of whatever the government is able to recover, there is an incredible incentive for employees, agents and officers of corporations to expose fraud. This incentive has created one of the most efficient ways for the government to recover wasted funds. Not only is exposing fraudulent practices beneficial to society at large, it can lead to enormous recoveries for those brave enough to stand up to illegal fraudulent practices that hurt all taxpayers.