Georgia Injury Lawyer Blog

There are two major organizations which crash test automobiles and report the results to the public. One is the National Highway Traffic Safety Administration, (NHTSA), an agency of the United States government. The other is the Insurance Institute for Highway Safety, (IIHS), a non-profit organization funded by auto insurers.

Both work to reduce the number of motor vehicle crashes, and the rate of injuries and amount of property damage in the crashes that still occur. They each conduct basic research and produce ratings for each model of vehicle.

The Insurance Institute's frontal crash testing differs from that of the NHTSA New Car Assessment Program in that its tests are offset from the center. This test exposes 40% of the front of the vehicle to an impact with a deformable barrier at approximately 40 mph (60 km/h). Because only 40% of the vehicle's front must withstand the impact, some contend it shows the structural strength better than the NHTSA New Car Assessment Program full-width testing does. Many real-life frontal impacts are offset.

The IIHS uses four ratings for each category, Good (best, green G), Acceptable (yellow A), Marginal (orange M) and Poor (worst, red P). Vehicles which score Good in all the various rating categories, or which have only one Acceptable category, are given Best Pick designations.

NHTSA uses a star rating to rate cars for performance in frontal impacts, side impacts and rollovers. A five star rating is the highest.

As with NHTSA's New Car Assessment Program testings, vehicles across different categories may not be directly compared, as increased weight is beneficial in a two-vehicle crash. The IIHS recently introduced a side impact test which differs from that of NHTSA. NHTSA tests with a low barrier. The IIHS uses an elevated barrier to simulate the impact of an SUV (approximately half of all new cars sold) into the side of the vehicle being tested. This is a very demanding test of both the structural integrity of the vehicle, as well as the restraints.

While many new vehicles achieve 4-5 stars from the NHTSA, many do not score well in the IIHS side impact test. The IIHS also evaluates vehicles' bumpers in a series of 5 mph (8 km/h) impacts, as well as seat and head restraint designs in relation to rear-impact protection, using the same Poor-Good rating system.

The IIHS and NHTSA tests can differ. For example, in a series of tests, NHTSA graded the Chevrolet Venture (also marketed as Oldsmobile Silhouette, Pontiac Montana/TransSport) as 4/5 stars, but the IIHS graded it "Poor" due to its poor structural integrity which becomes apparent in the offset crash test.

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The Associated Press has reported that an 86-year-old Providence Rhode Island man died three weeks after a neurosurgeon operated on the wrong side of his head. The patient, whose name wasn't released, died Saturday, and the state medical examiner was determining the cause of death.The man underwent emergency surgery at Rhode Island Hospital on July 30 to treat bleeding in his brain A nurse practitioner for Dr. Frederick Harrington didn't record which side of the man's brain required surgery. When another nurse pointed out the missing information, Harrington allegedly relied on his memory without consulting a CT chart and began operating on the wrong side. Upon realizing the error during the surgery, the surgeon operated on the correct side.

The hospital has suspended Harrington's surgical privileges, and he has agreed to stop performing surgery until an evaluation is complete. The incident marked the third wrong-side surgery error in the hospital's neurosurgery unit in six years. Harrington also operated on the wrong side of a patient's head during a surgery at Roger Williams Medical Center in September.

After reviewing that incident, the state Board of Medical Licensure and Discipline decided there were mitigating circumstances and opted to create a remediation plan for Harrington rather than publicly sanction him.

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Last week, the Insurance Institute for Highway Safety released test results for side impact ratings of large cars. Three of six large car models tested earned the top rating of good, but one was rated marginal in the side impact crash tests. The Institute ratings of good, acceptable, marginal, or poor are based on a crash test in which a barrier designed to replicate the front end of a typical SUV or pickup truck strikes the tested vehicle in the side at 31 mph.

The best performers were the Acura RL, Kia Amanti, and Volvo S80, all 2007 models. The Volvo also earned the Institute's 2007 TOP SAFETY PICK award for superior overall crash protection. The Volvo’s selection was based upon the fact that it rated good in the Institute's front, side, and rear tests and has electronic stability control as standard equipment. The 2007 Cadillac STS and Mercedes E class earned acceptable ratings. The lowest rating was given to the 2008 BMW 5 series, which earned the second lowest rating of marginal for side impact protection.

These side impact tests are important because side impacts are the second most common fatal crash type after frontal crashes. About 9,200 people in passenger vehicles were killed in side impacts in 2005. In crashes with other passenger vehicles during 2004-05, 49 percent of driver deaths in 1-3-year-old cars and minivans occurred in side impacts, up from 31 percent in 1980-81. During the same time, the proportion of driver deaths in frontal crashes declined from 61 to 46 percent.

The testing indicated that the price of a vehicle does not necessarily translate into safety. The lowest priced vehicle in the group the Institute tested, the Kia Amanti, was one of the best performers. One of the most expensive models, the BMW 5 series, was the worst.

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Last Tuesday, our lawyers successfully negotiated a $3,250,000 settlement in a case involving the tragic death of a 64 year old woman in a heavy truck collision. The incident which led to the filing of a lawsuit in federal court in Atlanta, Georgia occurred in the early morning hours of February 5, 2007 on Cobb Parkway in Marietta, Georgia. During the early morning darkness, our clients’ decedent was traveling northbound on Cobb Parkway toward her place of work. Her vehicle struck the rear of a tractor trailer which had stopped in the left lane of the two northbound lanes. The impact caused her vehicle to "underride" the trailer and she was pronounced dead at the scene.

It was determined that the tractor trailer was illegally occupying the left lane and attempting to make a "wide" right turn from the left lane. Additional investigation by our office discovered that at the time of the incident the tractor trailer driver had methamphetamine and a cocaine metabolite in his blood. Our lawyers retained the services of the former head of toxicology for the Georgia State Crime Lab who determined that the ingestion of the illegal drugs by the truck driver had occurred shortly before, of even during the trip by the driver from North Carolina to Georgia.

In previous blog entries we have discussed the dangers of heavy truck and tractor trailer drivers operating large rigs will under the influence of illegal drugs and the frequency of this illegal activity. This case serves as a tragic reminder of the dangers involved. Unfortunately, many drivers feel the need to resort to illegal stimulant drugs in order to overcome fatigue so that they can drive more miles and earn more money.

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Posted In: Truck and Tractor Trailer Accidents

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Our lawyers frequently review cases involving hospital acquired infections, many of which are fatal. New Medicare regulations have been enacted in an effort to prevent these all too frequent tragedies. Under new Medicare regulations, which will become effective in October 2008, hospitals will no longer receive higher payments for the additional costs associated with treating patients for certain hospital-acquired infections and medical errors. The new rules will give hospitals a powerful new incentive to improve patient care, according to Consumers Union, the nonprofit publisher of Consumer Reports. These new regulations are a giant step in the effort to save lives and money by holding hospitals responsible for their preventable negilgent acts which harm patients and cost taxpayers huge sums of money.

“Every year, millions of Americans suffer needlessly from preventable hospital infections and medical errors,” said Lisa McGiffert, Director of Consumers Union’s Stop Hospital Infection’s campaign. “These new rules are a good beginning for Medicare to use its clout to mobilize hospitals to improve care and keep patients safe.”

Under the rules payments will be withheld from hospitals for care associated with treating certain catheter-associated urinary tract infections, vascular catheter-associated infections, mediastinitis after coronary artery bypass graft (CABG) surgery, and five other preventable medical errors. These errors are bed sores, objects left in patients’ bodies, blood incompatibility, air embolism, and falls.

The new Medicare regulations specifically include protections which will prevent hospitals from billing patients when payments are withheld and to minimize avoidance of patients perceived to be at risk for infections.
Catheter-associated urinary tract infections are the most common infection developed by patients in hospitals. The Centers for Disease Control and Prevention (CDC) has reported that there are 561,667 catheter-associated urinary tract infections per year. According to a study in the American Journal of Medicine, the annual cost of urinary tract infections in hospitals is as much as $451 million.

Bloodstream infections are high in volume and cost, and are preventable. The CDC has reported that there are 248,678 cases of central line associated bloodstream infections every year. The Institute for Healthcare Improvement estimates that approximately 14,000 people die every year from central line-related bloodstream infections.

CMS failed to address the incidence of infections caused by methicillin-resistant Staphylococcus aureus (MRSA), a virulent antibiotic resistant bacterium. According to CMS, over 95,000 Medicare patients had MRSA infections in 2005, running up hospital charges of almost $3 billion. MRSA was not selected for nonpayment because of coding issues and because CMS does “not believe there is a consensus among public health experts that MRSA [infection] is preventable.”

Hospital acquired infections are a leading cause of death in the United States. The Centers for Disease Control and Prevention (CDC) estimates that 2 million patients suffer from hospital infections every year and nearly 100,000 of them die. Research shows that hospitals could prevent many infections through stricter adherence to proven infection control practices.
The Centers For Disease Control has estimated that hospital acquired infections result in up to $27.5 billion in additional health care expenses annually. Medicare foots the bill for a big portion of infection-related health care costs.

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Each spring and summer our attorneys see an increasing number of injuries to children caused by lawnmowers. An estimated 9,400 children are injured each year. Many of the accidents result in amputations of legs, hands, fingers, feet, and toes. Experts say that the most serious accidents occur when operators back up rider mowers with the mower blades engaged and run over small children they can’t see.

According to the American Academy of Pediatrics, back over accidents alone account for 560 injuries to children each year. Statistics show that the overall rate of all types of injuries for both adults and children is 2.6 injuries per 1,000 involving ride-on mowers. That is a very high ratio of injury especially for a product used seasonally and not on a daily basis.

In 2003, the lawnmower industry adopted a voluntary industry safety standard requiring new rider mowers to have a “no-mow-in-reverse feature” to prevent the mower from backing up with the blades powered. But, the safety standard allows manufacturers to install a device that overrides the feature.

Many of these accidents could be easily avoided if the mower manufacturers installed more effective no-mow-in-reverse devices and made it more difficult for operators to override the devices. A recent study by the American Academy of Pediatrics found that the rate of lawnmower related injuries to children remained constant from 1990 through 2004 and concluded “current safety features on these products are not adequate to prevent lawnmower-related injuries”.

Most override switches are located on the front control of the mower. The American Academy of Pediatrics recommends that manufacturers locate the override switches on either the posterior wheel well or behind the seat. This would force the operator to look behind the mower before disengaging the no-mow-in-reverse feature.

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In the not too distant past, our lawyers’ experience had been that medical malpractice encompassed almost exclusively the negligent wrongs of physicians. However, as nursing has evolved into a sophisticated, technical, and specialized profession, nurses regularly assume roles previously in the exclusive domain of physicians. These include examinations, diagnosis, post-surgical monitoring, and treatments of patients. Sometimes this is done without any direct supervision from physicians. The nurse’s expanded role in patient care, the continual development of specialized and sophisticated medical technology, and the heightened emphasis on independent nursing practice have placed nurses into positions of increased accountability.

Generally, when the nurse’s negligence occurs in the scope of the nurse’s employment at a hospital or clinic, the nurse’s conduct can be imputed to the facility or the hospital. In certain cases, the nurse’s conduct may be imputed to the physician.

Most nursing negligence results from one or more of the five steps in the nursing process: Assessment, nursing diagnosis, care planning, intervention, and evaluation. More specifically, the allegations often focus on improper treatment, performance of treatment, failure to prevent injuries, failure to follow the chain of command, failure to monitor a patient’s condition, failure to communicate information to physicians, failure to follow hospital policies and protocols, and medication errors.

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This is the time of year where it seems that everyone who rides in an automobiles passes a high school football practice. The sweltering sun and heat of this summer, which is particularly hot, is obviously a danger to those practicing. If those responsible for the players are not careful, deaths can ensue. Indeed, it has almost become commonplace every summer to read about the death of a high school or college football player due to extreme heat conditions.

Our firm, regrettably, has been involved in cases where football players have died. Two years ago, we represented the family of a member of the football team of a state university who died during extreme heat on the very first day of his team’s practice. This particular player had failed the physical provided by the team’s doctor the week before practice began but inexplicably, even though the doctor wanted to conduct more tests, the coaching staff allowed the player to practice with the all to predictable result the he succumbed to the heat. To make matters worse, when the player got into trouble, there was no trainer on the field nor were there any defibrillators present to render aid to the stricken player who died from a heart attack.

Obviously, caution is the best word here particularly for members of the coaching staff. Coaches need to make sure that their players are properly hydrated. They need to have a defibrillator present. Indeed, we contended in the case we handled that the failure to have a defibrillator readily available was negligence in and of itself. Most sports trainers would agree that in this day and age this is inexcusable particularly since these events are predictable.

One of the difficulties counsel faces in these cases is proving legal responsibility for damages. The State has waived its immunity under the State Tort Claims Act. If a county is involved, however, there may be sovereign immunity problems with respect to a particular high school. The same is true for a municipality. Accordingly, the legal analysis when dealing with sovereign immunity does tend to come up in this type of case. Nonetheless, it is clear that in order to prevent such a case from ever occurring, much less involving a lawyer, the sports community itself needs to take appropriate precautions to protect students in their care from preventable injury or death.

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Posted In: Torts , Wrongful Death

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In Georgia, owners and occupiers of land or buildings owe certain duties to those who come on the premises. The duties vary according to the relationship between the owner and the person coming onto the premises. The mere fact that one owns or occupies land or a building does not make one liable for injuries sustained by persons who have entered onto the land or the premises. It is a commonly accepted in Georgia law that the owner of a building or land is not the insurer of the safety of those who enter the property.

In general, the respective duties of care owed are determined by the person’s status while on the property. There are three categories by which the status of one on property is classified ---- trespasser, licensee, and invitee.

A trespasser is one who enters upon the property of another wrongfully and without express or implied permission for the trespasser’s own benefit or amusement.

The distinction between an invitee and a licensee is generally defined by a business relations rule. If the injured person at the time of the injury had business relations with the owner or occupant of the premises that would render his presence of mutual aid or benefit to both, the person is considered an invitee. If, however, the presence on the premises is for the persons own convenience, as in merely accompanying another, the person is a licensee.

The only duty owed a trespasser is not to injure him willfully and wantonly. A person who has the status of licensee is owed a duty greater than that owed a trespasser. This duty has been described as a duty not to expose a licensee knowingly to an unreasonable risk of harm. An invitee is owed the highest degree of care by the owner. In the case of an invitee, the owner is liable for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

When a person’s status as a trespasser, licensee, or invitee is a matter of disputed fact, a jury under appropriate instructions from the Court must resolve these issues.

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Posted In: Premises Liability

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Toy maker Mattel, Inc. issued recalls yesterday for about 9 million Chinese made toys that could be potentially dangerous for children. The recalls were negotiated by the Consumer Products Safety Commission. The majority of the toys subject to the recall contain magnets that can be swallowed by children and the rest have lead paint. The recall includes play sets, including the Polly Pocket dolls and Batman action figures as well as almost a quarter of a million die cast cars that contains lead paint.

This massive recall followed other recent recalls of toys produced in China. Currently, it is estimated that more than 80% of the toys sold worldwide are made in China. The recall involving lead paint was Mattel’s second in two weeks. Earlier this month, consumers were warned about 1.5 million Chinese made toys that contain lead paint.

A parent should be cautious of any products containing magnets which children can potentially swallow. If more than one magnet is swallowed, they can attach to each other and cause intestinal perforation, infection or blockage which can be fatal. Mattel reported that since the initial recall of Polly Pocket play sets on November 11th of this year, three children had been injured by swallowing more than one magnet. All three suffered intestinal perforations which required surgery.

Last March, another toy company, Megabrands, Inc. recalled 3.8 million Magnetix magnetic building sets after one child died and four others were seriously injured after swallowing tiny magnets in them.

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Nokia Corp. warned Tuesday that up to 46 million batteries used in some of its cell phones could pose a serious risk of overheating. The batteries subject to the warning were manufactured by Matsushita from December 2005 to November 2006. Matsushita Battery Industrial Co. Ltd. of Japan is one of several suppliers that have together made some 300 million BL-5C batteries.

Nokia is the world's largest mobile phone maker. The lithium-ion battery is one of 14 different types of battery used in Nokia phones.

Nokia reported 100 incidents of overheating of the Matsushita-made BL-5C batteries. "Consumers with a BL-5C battery subject to this advisory should note that all of the approximately 100 incidents have occurred while charging the battery," the Finnish company said. "According to Nokia's knowledge this issue does not affect any other use of the mobile device."

Nokia did not recall the batteries, but will offer a replacement for any BL-5C battery affected by the advisory at the consumer's request.

Last year, Sony Corp. recalled more than 10 million laptops after it discovered that lithium-ion batteries used in them could overheat and catch fire. The recalls included notebooks made by other major computer makers, including Dell Inc., Lenovo Inc., Apple Inc. and Acer Inc.

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Legislation is being considered in both houses of Congress to fund pilot projects in 10 states that would create administrative panels known as "health courts." This legislation is being strongly supported the medical and insurance lobby. The legislation is based on systems in Scandinavia and New Zealand. The state of Florida also has an existing administrative procedure for dealing with birth-related neurological injuries.

The legislation, if passed in its current form, would eliminate jury trials in medical negligence cases. The standard by which the actions of health care providers is judged would not be the traditional negligence standard, but one of avoidability. All decisions would be made by health court judges who could rely on experts serving on specialized panels. Damages would be limited to a range of predetermined amounts which are assigned to specific injuries.

Similar bills were introduced last year, but were modified and reintroduced this year following intense scrutiny during Congressional hearings. The requirements were modified to allow patients to voluntarily withdraw from participating in the health court proceeding due to serious concerns about the constitutionality of denying access to juries.

One of the prime arguments in favor of health courts is that juries lack the knowledge-base needed to resolve medical negligence claims fairly. However, a study conducted by Philip G. Peters Jr., a professor at the University of Missouri School of Law, refutes this contention. After examining three decades of studies on jury decisions in medical malpractice cases, he concluded that juries actually perform very well. Peters found that in cases with weak evidence juries agreed with the assessments of expert reviewers nearly 90 percent of the time. He also found that juries overwhelmingly favor defendant doctors, even in cases where the evidence against them is strong.

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Posted In: Medical Malpractice

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Powers Fasteners Inc., the company that provided the epoxy adhesive blamed in the fatal Boston Big Dig tunnel collapse was indicted this week in the death of a woman killed on July 10, 2006, when tons of falling concrete crushed her automobile. Milena Del Valle, 39, was killed when as she and her husband drove through the Big Dig tunnel. Her husband escaped with only minor injuries.

An investigation by the National Transportation Safety Board concluded the collapse could have been avoided if designers and construction crews had considered that the epoxy holding support anchors for the panels could slowly pull away over time. The report of the investigation spread blame for the collapse among the many corporations, consultants and engineers involved in the Big Dig project, the most expensive highway project in U.S. history. The agency also faulted the Massachusetts Turnpike Authority for failing to conduct a timely tunnel inspection program.
The indictment alleges that Powers Fasteners knew the type of epoxy it marketed and sold for the nearly $15 billion project was unsuitable for the weight it would have to hold, but never told project managers.

The charge does not directly affect a separate wrongful death lawsuit that Del Valle's husband and daughter filed against Powers, the Massachusetts Turnpike Authority and eight other companies.

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The Associated Press is reporting that the U.S. Department of Justice is weighing whether to intervene in a lawsuit that accuses insurance companies of overbilling the federal government for flood damage from Hurricane Katrina. A team of lawyers filed the "whistleblower" action in April 2006 on behalf of two sisters who worked for a company that helped State Farm Insurance Co. adjust policyholder claims on the Mississippi Gulf Coast after the August 2005 storm.

The whistleblower statute required that the lawsuit remain under seal so the United States Justice Department could investigate and consider intervening in the case. U.S. Magistrate Judge Robert Walker in Gulfport, Miss., ordered the case unsealed Monday, even though the federal government had argued that its disclosure would "compromise (its) ability to conduct an adequate civil investigation of this case."

State Farm, Nationwide Insurance Co., Allstate Insurance Co., USAA Insurance Co., and several engineering firms that contracted with the companies are named as defendants in the suit. The lawsuit accuses the insurance companies of pressuring engineers to falsify reports so storm damage could be blamed on flood water instead of wind, which would shift the financial burden to the National Flood Insurance Program. The insurance companies contend their homeowner policies cover damage from wind but not rising water, including storm surge. Insurers sell separate flood insurance policies that are subsidized by the federal government.

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A federal appeals court recently struck down a Bush administration regulation that increased the number of hours that truck drivers are permitted to drive without rest. This is the second time the regulation has been struck down

The U.S. Court of Appeals for the D.C. Circuit held that the Federal Motor Carrier Safety Administration’s (FMCSA) hours-of-service rule for truckers, issued in Aug. 2005, could put motorists at risk. The rule dramatically increased both the consecutive number of hours that truckers may drive before taking a rest; and, the total number of hours truckers may drive per week.

A lawsuit brought by Public Citizen, a consumer advocacy group, challenged two aspects of the rule: a provision that allowed truck drivers to drive for 11 consecutive hours before taking rest time, increased from the old rule of 10 hours; and, a provision which allowed drivers to “restart” their weekly tally of hours after they had taken a break as short as 34 hours.

The 34-hour restart allowed truckers to drive 77 hours in seven days or 88 hours in eight days – a more than 25 percent increase over pre-2003 rules. On-duty hours during which truckers may drive also climbed, so that a driver working 14-hour shifts under the new rules can now work as many as 84 hours in seven days or 98 hours in eight days – the latter a 40 percent increase over the old limits.

“The trucking profession has become ‘sweatshops on wheels’ because of the excessive and unsafe hours of work and driving time required of truck drivers,” said Daphne Izer, founder of Parents Against Tired Truckers (PATT). “I have paid the ultimate price for government policies that legally allow truck drivers to work and drive exhausted. My 17-year old son Jeff and his three close friends were killed in a preventable crash caused by truck driver fatigue. I welcome the court’s decision that puts people before profits.”

Each year, more than 5,000 people in the United States are killed and more than 110,000 injured in crashes involving large trucks. Truck driver fatigue is a major contributor in many of these crashes.

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Posted In: Truck and Tractor Trailer Accidents

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Our lawyers have successfully represented many clients at mediations, covering a wide range of actions such as truck accidents, medical malpractice, auto collisions, and premises liability. Our experiences have led us to conclude that, under the right circumstances, mediation can be of great benefit to plaintiffs. It generally allows the matter to be concluded long before a trial can be scheduled, removes the risks associated with the trial of some cases, and allows the client to control the result, as opposed to a jury, judge, or arbitrator.

Mediation, is a form of alternative dispute resolution (ADR), which aims to assist two (or more) disputants in reaching an agreement. The key component of mediation is that whether an agreement is reached, and the nature of that agreement, if any, is determined by the parties themselves rather than being imposed by a third party. Mediators use appropriate techniques and/or skills to open and improve dialogue between the parties, aiming to help the parties reach an agreement on the disputed matter. In order for mediation to be successful, all parties must view the mediator as impartial.

Arbitration is a procedure for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. Arbitration is today most commonly used for the resolution of commercial disputes, such as between businesses. In many cases contracts between the parties require mandatory arbitration. This is almost universal in investor/broker contracts. It is also used to resolve other types of disputes, such as labor disputes, consumer disputes or family disputes, and for the resolution of certain disputes between states.

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Posted In: Torts

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Many state, county, and local governments are protected from lawsuits even though their employees may have been extremely negligent in causing severe injuries to innocent citizens. In most instances, the doctrine of sovereign immunity precludes a lawsuit against these entities, unless the governing body, such as the legislature, has waived the protection of sovereign immunity. Even when there has been a waiver, it is generally restricted to a maximun amount of recovery.

For example, in a ruling involving last summers deadly Comair plane crash at Lexington Kentucky, a judge ruled Thursday that the Kentucky airport cannot be sued because it is protected by sovereign immunity as part of the merged Lexington-Fayette County government. This is a severe blow to the airline's efforts to divide blame and apportion potentially millions of dollars in damages.

Comair had countersued the airport, arguing that it is partially to blame for the crash because of poor runway signs and markings that might have contributed to the pilots trying to depart from a runway that was too short.

In Georgia, the legislature has waived sovereign immunity for injuries caused by state employees, under certain circumstances, up to the limit of one million dollars.

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Posted In: Torts

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The Fifth Circuit Court of Appeals in New Orleans ruled Aug. 2, 2007, in In re Katrina Canal Breaches Litigation, No. 07-30119, that property owners in New Orleans whose buildings were flooded as a result of levee breaches in the aftermath of Hurricane Katrina cannot recover losses from their insurance companies because of the flood exclusions in their insurance policies. Thousands of policyholders of various insurance companies will be affected by the ruling and it is estimated that the policyholders may have to absorb losses in the range of 1 billion dollars.

The policyholders had argued that because their properties were flooded as a result of the levee breaches, a "man-made act," the flood exclusions in the policies were void. They argued that the flooding in the city was the result of the negligent design, construction, and maintenance of the levees.

In the Fifth Circuit opinion, which the insurance industry is applauding, the court held "that even if the plaintiffs can prove that the levees were negligently designed, constructed, or maintained and that the breaches were due to this negligence, the flood exclusions in the plaintiffs' policies unambiguously preclude their recovery. Regardless of what caused the failure of the flood-control structures that were put in place to prevent such a catastrophe, their failure resulted in a widespread flood that damaged the plaintiffs' property. This event was excluded from coverage under the plaintiffs' insurance policies, and under Louisiana law, we are bound to enforce the unambiguous terms of their insurance contracts as written."

The case was appealed to the Fifth Circuit from the United States District Court for the Eastern District of Louisiana, which held in November 2006 that ambiguous language in the water damage exclusions in some insurance policies left open the possibility that policyholders could recover losses under their policies.

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Posted In: Civil Procedure

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