In 2003, one of our clients lost her husband when he died of prescription medicine poisoning – we believe that his doctor had been prescribing him excessive amounts of amiodarone for years without adequately monitoring its effects on his body.

The deceased husband was a registered member of the Confederated Salish-Kootenai tribes. Our client and her husband lived in Polson – on the reservation – during the warm months of the year. The doctor who prescribed the medication treated her husband in Polson. Neither the doctor, nor the clinic where he worked are tribal members.  They are not even affiliated with the tribe.

So, because we believe that an Indian always has the right to file a lawsuit against a non-Indian in state court, we filed our Complaint for the death in 2006, in Montana state court.

After we filed our Complaint, the doctor and his employer filed a Motion for Summary Judgment, arguing that tribal court, not state court was the proper place for the action. They argued that, because the deceased husband was a tribal member and the medical malpractice happened on the reservation, only the tribe had jurisdiction.

We opposed the motion, but lost.

So we appealed, and won a decisive victory, with all the Montana Supreme Court Justices agreeing that state court was a proper place for the lawsuit. You can read the decision here.

Unfortunately, though, our decisive victory before the Supreme Court was not enough …

This is important to us, because here in Kalispell, we are close to two reservations: the Flathead Reservation (the Confederated Salish & Kootenai tribes) and the Blackfeet Reservation (the Blackfeet Nation).  Both of these tribes have their own courts.  When you get your license to practice law in Montana, you don’t automatically get your license to practice law before the Confederated Salish & Kootenai or Blackfeet tribal courts. You have to be separately licensed before these courts to step in the doors.

An even more general concern for attorneys in these parts though, is whether Montana state court even has jurisdiction over matters that: happen in Indian country, or concern a registered member of a tribe.  In other words, if an action arises on a reservation does Montana state court actually have the power to make a binding decision? Or, if a member of the action is a registered tribal member, does Montana state court have the power to make a binding decision?

In some cases, the state court will have the power to entertain the action and make final judgments.  In other cases, only the tribal courts will have that power. Which court has the power depends on different factors, and the law in Montana is subject to change. But, based on our research, we think that registered tribal members always have the right to bring their claims against non-Indians in state court.

Now that you understand a little bit about Indian law, stay tuned for my next post – an unfolding story of a case caught in the morass of Indian jurisdictional law.

Despite these great insurance provisions, I find that some people who need to and can file one of these claims are hesitant do so.  “Why ask my own insurance company to pay for it?  They’ll raise my rates!”

If they do, by “surcharging” or issuing “points” to you for making a claim against your auto policy if you weren’t at fault for the accident, they are in violation of Montana law.  Check out Montana Code Annotated 33-18-201(10).

If your rates went up after you made a MedPay or UM/UIM claim, you should write to your insurance company and ask for a written reason why – you might get a nice surprise and refund.

The weather reminds me of a conversation I had not too long ago with an insurance adjuster, about whether a landowner was responsible for my client’s slip and fall injuries.  My client slipped and fell on a sidewalk in Missoula in January.  I won’t get into the details, but let’s just say that, as a Montanan, I think the landowner should have done something about this sidewalk.

The adjuster is from California, and I got the impression she has never lived anywhere it snows.  “Your client has lived in Montana all her life,” the adjuster told me, “she should have known it was slippery.  I am thinking I am going to deny liability.”  When I told her that most cities in Montana have ordinances which require landowners and tenants to clear snow and ice from their sidewalks, and that Montana law is well-established that landowners have a duty to keep their property reasonably safe whatever the weather, she was a little surprised.  I’m not sure what this adjuster thinks we do in Montana all winter … stay inside until May or June?

Whatever a Californian might think, our city councils do not expect us to sit inside and wait for the weather to turn nice to venture outside.  In fact, they anticipate people are going to continue to send their children to school, walk their dogs and run errands on snowy days.  They require landowners and tenants to clear their sidewalks of snow and ice: Kalispell code, Columbia Falls code, Bigfork code (look at 92.18), and Whitefish code, (look at 72.2.B.2).

People really should clear their sidewalks and put some sort of de-icing agent on their sidewalks during the winter, regardless of city mandate to do so – it’s the neighborly, responsible thing to do! – but I’m glad that our city councils are writing these “shoulds” down, if nothing else, so we can point those who have never lived in snowy climates to these laws!

Generally, settlement conferences don’t take place until after litigation has begun.  In injury cases, we have actually done a few before we filed and served our Complaint, but the general rule is they don’t happen until after litigation has begun and the important depositions have been taken.

Here in the Flathead County of Montana, the Local Rules require settlement conferences for all civil cases unless the Judge specifically enters an order allowing the parties to go to trial without one.  I suspect most district courts in Montana have similar requirements.

The first step in going to a settlement conference is for the parties to agree on a settlement master.
Depending on the skill of the settlement master and willingness of the parties to enter into the process, settlement conferences can be important tools in an attorney’s kit to resolve matters before trial.

Once the settlement master is selected, the parties, their attorneys, and the settlement master set aside a day to have the settlement conference.  Most settlement masters want the parties to attend in person.  In our offices, on the injury side, when a party is being defended by an insurance company, we always request that the insurance adjuster attend the settlement conference in person, too.

About a week before the settlement conference, all sides will send the settlement master a letter outlining their case.

On the day of the settlement conference, most settlement masters begin by having everyone meet together for a few minutes to outline the process.  Generally, the settlement master will explain that s/he is a neutral party, everything said to the settlement master is completely confidential, and it is his/her job is to help the parties resolve the matter — or at least understand each other’s position.

After this initial orientation, the parties will go into different rooms.  The settlement master will go back and forth between the parties, gathering information from each party and eventually conveying settlement offers back and forth.

Depending on the complexity of the case and posture of the parties, settlement conferences can take anywhere from three to eight hours.

Depending on the skill of the settlement master and willingness of the parties to enter into the process, settlement conferences can be important tools in an attorney’s kit to resolve matters before trial.