Statutes of Limitations (MONTANA)

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Personal Injury - 3 yrs. [MCA 27-2-204]

Wrongful Death -3 yrs. (from death) [MCA 27-2-204]

Med Mal - 2 yrs. from injury or discovery, but no later than 5 yrs. from date of injury [MCA 27-2-205] 

Property Damage (inconsistent law*) - 2 yrs. [MCA 27-2-207] or 3 yrs. [MCA 27-2-204]

Written Contracts - 8 yrs. [MCA 27-2-202]

Oral Contracts - 5 yrs. [MCA 27-2-202]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [MCA 30-2-725]

Implied Breach of Warranty - Breach of warranty claims by an injured employee sounded in tort, rather than contract, for purposes of limitations period [Bennett v. Dow Chemical Co., 713 P.2d 992 (Mont. 1986)]

 

*According to the MT Supreme Court: Section 27-2-204(1) is a specific statute of limitations (“SOL”) which is based on the type of obligation which gives rise to plaintiffs’ claim. Section 27-2-207 is a specific SOL based upon the nature of damage incurred by plaintiffs.  Court should apply the general rule that any doubt should be resolved in favor of the SOL containing the longer limitation.  [Ritland v. Rowe, 861 P.2d 175 (Mont. 1993)]

 

A claim or cause of action accrues when all elements of the claim or cause exist or have occurred [MCA 27-2-102].

 

 

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Statutes of Repose (MONTANA)

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Products - None.

Construction of Real Property - 10 yrs. (but an action for damages/injury that occurred during 10th yr. may be commenced within 1 yr. after occurrence) [MCA 27-2-208]

 

 

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Claims Against Public/Gov. Entities (NOTE: “sovereign immunity” rules may apply) (MONTANA)

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Against State and Political Subdivisions - Cannot file suit unless a claim was presented first and the entity had 120 days to consider the claim [MCA 2-9-301]; Suit must be filed within the regular ordinary statutes of limitations [MCA 2-9-302]

Against County - Suit within 6 mos. after rejection of claim [MCA 27-2-209]

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Comparative Negligence (MONTANA)

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Modified comparative (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [MCA 27-2-209]

 

 

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Made Whole Doctrine (MWD) (MONTANA)

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Recognized and strictly applied (cannot be bypassed by a contract).  Insured must be reimbursed for all losses as well as costs, including atty fees, involved in recovering those losses before Insurer can exercise subrogation rights, regardless of contract language to the contrary [Swanson v. Hartford Ins. Co. of Midwest, 46 P.3d 584 (Mont. 2002)].  It is Insurer’s duty to determine if Insured had been made whole before Insurer may seek subrogation [Ferguson v. Safeco Ins. Co. of America, 180 P.3d 1164 (Mont. 2008)]. 

 

However, Insurer did not violate MWD by seeking subrogation from Tortfeasor's liability for property damage incurred by Insured as a result of motor vehicle accident and paid in full by Insurer under collision coverage, although Insured was not yet made whole as to personal injury damage incurred.  Insured was made whole as to property damage and Insurer could exercise contractual subrogation right to prevent duplicate payments for the same element of loss, and Insured could not recover directly from Tortfeasor’s property damage policy coverage any more than he already recovered from Insurer. [Van Orden v. United Services Auto. Ass’n, 318 P.3d 1042 (Mont. 2014)].

 

 

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Economic Loss Doctrine (ELD) (Assuming No Injury to Person or Damage to “Other Property”) (MONTANA)

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Recognized/applied, with 2 potential exceptions.

 

First, lack of contractual privity between project engineer and contractor did not preclude contractor’s recovery of purely economic damages for project engineer’s negligence. Third-party contractor may successfully recover in negligence for purely economic loss against project engineer or architect when design professional knew or should have known that particular Plaintiff was at risk in relying on information supplied. [Jim's Excavating Service, Inc. v. HKM Associates, 878 P.2d 248 (Mont. 1994)]

 

Second, when use of a product for purpose for which it was intended has foreseeable potential of damaging user’s property, doctrine of strict liability applies [Streich v. Hilton-Davis, a Div. of Sterling Drug, Inc., 692 P.2d 440 (Mont. 1984)]

 

 

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Certificate/Affidavit Of Merit Requirements (Claims Against Licensed Professionals) (MONTANA)

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No requirements.

 

 

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Landlord/Tenant Subrogation (MONTANA)

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Subrogation allowed, no case law holding that Landlord and Tenant are implied coinsureds. 

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Reimbursement of Deductible(s) (MONTANA)

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Insured must be made whole before Insurer can subrogate (and it is Insurer’s duty to determine whether Insured has been made whole).

 

 

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MedPay and PIP (MONTANA)

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MedPay and PIP - Subrogation allowed (subject to very strict application of the made whole doctrine).

 

 

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Liability of Parents (MONTANA)

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$6,900 for malicious or willful destruction of property [MCA 40-6-237].  Any negligence or willful misconduct of a minor driver must be imputed to a person who has signed permit/licensed application [MCA 61-5-108]

 

 

 

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Joint Liability (MONTANA)

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Joint and several liability for Defendants who are more than 50% at fault (Plaintiff may recover all damages from any Defendant regardless of Defendant’s individual share of liability); several liability for Defendants who are 50% or less at fault (Plaintiff can recover from each Defendant only that Defendant’s share of liability). [MC 27-1-703]

 

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Independent Cause of Action for Evidence Spoliation (MONTANA)

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Tort of negligent or intentional spoliation has been recognized against third parties only [Oliver v. Stimson Lumber Co., 993 P.2d 11 (Mont. 1999)]

 

 

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Conflicts of Law (MONTANA)

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Torts- Local law of the place of injury is presumptively applicable in product liability and wrongful death action unless, with respect to a particular issue, different state has a more significant relationship [Phillips v. GMC, 995 P.2d 1002 (Mont. 2000)].  Contracts - Courts look to the place of contracting, place of negotiation of contract, place of performance, location of subject matter of contract, and place of residence of parties, evaluating each factor according to its relative importance with respect to dispute [Emerson v. Boyd., 805 P.2d 587 (Mont. 1991)].