Articles Posted in Legal Definitions

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When an accident occurs, there is usually a fight over whose insurance company will pay for the damages. The issue becomes even messier when the driver responsible for the wreck appears to be working under different employers. This was the issue in a recently decided case by the Louisiana Court of Appeal for the Third Circuit, which involved a wreck in Maurice.

In that case, Broussard v. Progressive Security Ins. Co., et. al., a dump truck hauling material to a construction site struck another vehicle in an intersection. The passengers of that vehicle filed a lawsuit against the driver, the subcontractor for which the driver worked, the general contractor who had hired the subcontractor and the insurance companies for both the subcontractor and the general contractor. The issue before the court was which insurance company would be held liable for damages: the subcontractor’s or the general contractor’s.

The court focused primarily on the language of the policy held by the general contractor. Under that policy, a “non-owned auto” could be covered under certain conditions. A “non-owned auto” was described as a vehicle not actually owned by the company, but were vehicles leased, hired or rented to be used in connection with the business. Thus, the question became whether the dump truck driver had been hired by the general contractor and whether or not the truck he was driving was hired or rented by the general contractor.

After analyzing the facts, the court found that, although the employee was hired by the general contractor, there was no evidence that the truck itself was hired or rented. Therefore, the subcontractor’s insurance still covered the truck and would be liable for the plaintiff’s damages.

Insurance issues like this are complex, especially in the business context. Depending on the policy, certain vehicles may be covered and others may not depending on certain circumstances. The determination of which insurance applies could mean hundreds of thousands of dollars for that insurance company, and hundreds or thousands of dollars in increased premiums for the policy holder. For this reason, it is important that companies and individuals know and understand their insurance policies.

Additionally, companies must be aware of who they hire. As was touched on in the above case, employees who cause an accident while operating within the scope of their employment can place their employer in the liability hot seat. Insurance in this context will play a critical role. For example, if an employee is drunk while driving his delivery route and causes an accident, the employer and the employer’s insurance will likely be responsible for damages.

For businesses, this means hiring a questionable driver can put the company at risk of increased expenses from lawsuits and the danger of being dropped from its insurance. For individuals injured by these negligent drivers, this structure allows them to obtain the compensation they need to cover medical expenses, pain and suffering, and lost wages. Then, hopefully, the individual can achieve a full recovery.

When an accident occurs, the last thing people want to deal with is interpreting convoluted insurance policies. Yet, these documents are of vital importance when determining who will pay for accident damages. A competent attorney can walk you through the documents and help create a legal strategy that protects your best interests.

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When personal items are lost to fire, the anguish one experiences can be devastating. One must sift through the remains to determine what was lost, not only as a personal inventory but also for insurance purposes. Such was the experience of Ronald and Delores Semar of Lafayette, Louisiana. Their building was destroyed after an adjacent motor home caught fire due to a defective refrigeration unit. The building housed their collection of antique vehicles, a collection that had taken the Semars 20 years to assemble. The Semars described the collection as a documentary of their lives together. It was reduced to ashes because of the fire.

Property damage to the Semars exceeded their insurance coverage, so the Semars sought to recover their uninsured losses and mental anguish damages from the manufacturer of the defective refrigeration unit. The Semars’ insurance company also sought subrogation against the manufacturer. Subrogation is a legal doctrine by which claims of an insured party (here, the Semars) against a negligent third party (the manufacturer) pass to the insurance company.

Insurance policies and laws are designed to ensure speedy payouts when an insured party properly submits evidence of its damages, even if the insured is a third-party claimant. Specifically, Louisiana Revised Statutes 22:1892(A)(4) provides that all insurers must make a written offer to settle any property damage claim, including a third-party claim, within 30 days after receipt of satisfactory proofs of loss of that claim. Failure to do so subjects the insurer to a penalty payable to the insured, if the insurer’s failure to pay is arbitrary or without probable cause.

In the Semars’ case, the manufacturer’s 2 liability insurers failed to make a written settlement offer within 30 days of receipt of satisfactory proof of their claims. A trial court determined that the insurers had satisfactory proof of loss as to the claim to the building as of November 2009. A written settlement offer was not made until August 2010. The trial court held that the failure of the insurers to comply with the 30-day timeframe was not made in good faith or with probable cause. It ruled against the manufacturer and its insurers, awarding damages in favor of the Semars in the amount of $1,628,789 and in favor of the Semars’ insurance company in the amount of $1,591,505.

The manufacturer appealed, primarily contesting that the trial court improperly concluded that its insurers did not make a written settlement offer within a reasonable time after receiving proper proof of loss for reasons that were arbitrary and without probable cause. A Louisiana Court of Appeals affirmed the trial court’s ruling. It held that proof of loss is a flexible requirement that is met as long as the insurer has sufficient information to act on the claim. The manner in which it obtains the information is immaterial. In this case, because the insurers were informed that the manufacturer was at fault and photographs and documentation proved the loss to the Semars, the court concluded that the insurers were sufficiently apprised of the claims as of November 2009. Its failure to make a written settlement offer until the following August was therefore unjustified. Further, it agreed with the Semars’ contention that the trial court erred in not awarding damages for loss of use of the antique vehicles. Evidence showed that family members of the Semars often used the antique cars when their vehicle was broken down. Accordingly, the court awarded the Semars an additional $20,000 as reasonable compensation for the loss of the use of the antique vehicles. Attorney fees for work completed on the appeal for the Semars and their insurance were assessed against the manufacturer and its insurers as well.

If you have an insurance issue, contact the Berniard Law Firm. Providing the best experts in diagnosing the cause of damages, our law firm can handle all of your litigation needs.

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After a recent car accident in Kenner, Louisiana, the plaintiff’s uninsured/underinsured insurance carrier, Progressive, appealed a claim against it, claiming in part that the general damages awarded the plaintiff were excessive. Although Progressive’s claim was dismissed and the award for general damages affirmed, this case brings up the important subject of general damages in personal injury cases.

When filing a claim in a motor vehicle accident, the plaintiff wants to make sure that he or she receives all appropriate damages, and a large component of the damages award typically falls in the category of general damages. So what are general damages and how do you get the appropriate amount of general damages? First, the phrase “general damages” refers to those damages that you can’t easily put a dollar amount on. This is opposed to the other main category of damages, “special damages,” which refers to those damages such as specific medical bills or lost wages that can more easily be determined precisely.

General damages normally encompass areas of loss such as pain and suffering that are inherently subjective. These damages also include compensation for things such as disfigurement and loss of enjoyment of life. One way these damages can be proven is by testifying of things such as limited mobility or the inability to participate in specific activities as a result of the accident. However, while the loss of enjoyment or pain can be testified of, it is often hard to assign a dollar amount to this suffering.

Because the area of general damages is so subjective, many defendants appeal awards of general damages which they deem excessive, just as in the Progressive case referred to above. In the Progressive case, the award of $40,000 in damages was affirmed, however, because the appellate court decided that it was not an excessive award.

In instances like this, the fact finder must look at a preponderance of the evidence when making its judgment, and Progressive argued that the trial court did not do this. The plaintiff had only been to the doctor four times, and Progressive argued that in light of that, $40,000 was excessive. However, as stated above, general damages are not directly tied to any medical bills or any specifically proven dollar amount. Rather, general damages are subjective awards of damage. In this case, the plaintiff had back pain and was limited in the activities that he could pursue after the accident.

Furthermore, the plaintiff in this case was able to receive general damages even though he had previous back problems. Even if you have had previous health problems, that does not preclude an award of general damages. In the case with Progressive, the plaintiff had previous back problems and serious surgery just two years prior. Despite both of these facts, because the plaintiff was able to prove that the accident exacerbated his back problems, he was able to receive general damages. He testified that before the accident he had gone fishing and hunting often, but he was no longer able to fish after the accident.

Even though it is hard to put a specific dollar amount on the damage that comes from the plaintiff’s newly limited activities, the fact finders (the trial court) must make that determination. Once the trial court decides on a dollar amount and passes its judgment, it can only be reversed if the appellate court finds that the trial court’s judgment was clearly wrong or manifestly erroneous or that abuse of discretion was used. In this case, appropriate discretion was used, and the judgment was not blatantly wrong or erroneous. And most importantly, the plaintiff’s attorney made sure to claim all of the requisite damages so that his client could receive the damages he deserved.

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Jason and Renee Niemann, a couple from Mandeville, Louisiana, purchased a home in 2007 in the Lakeside Village Subdivision in Mandeville, Louisiana. Unbeknownst to them, a subcontractor, Calmar Construction Company, installed Chinese drywall in the home during construction in 2006, and the Niemanns have been fighting the builder, subcontractor, and subdivision developer in court since discovering the defect in 2010.

Chinese drywall became popular amongt builders during the housing boom in 2004 because it was inexpensive and available in mass quantities. However, the defective drywall is infamous for emitting carbon disulfide, carbonyl sulfide, and hydrogen sulfide. These three sulfurous gases cause both irreparable damage to houses and severe health problems. Copper piping in the home begins to erode, taking on a black and powdery look, and residents begin experiencing respiratory issues and headaches. As a result, the house becomes uninhabitable and loses its value.

When the Niemanns signed the sales contract in 2007, they had no idea that Chinese drywall had been installed in their new home. On May 24, 2010, they filed an action in Louisiana state court, alleging breach of warranties and negligence and seeking damages from the builder, subcontractor, and subdivision developer, as well as the respective commercial general liability (CGL) insurance providers. The Niemanns argued that all three companies had been aware (or should have been) of the defects yet failed to disclose them at time of sale. As a result, they stated they had made a home purchase they would not have otherwise made, resulting in damages, economic loss, and a defective home that was unfit for its intended purpose.

During an appeal of a summary judgment order by the trial court, the appellate court asked the parties to submit briefs on whether the Niemanns had a right of action against both Calmar and Calmar’s CGL insurer, American Empire, for non-apparent damages inflicted on the house prior to sale. According to a recent Louisiana Supreme Court case, Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., a plaintiff only has a right of action (or right to sue) for non-apparent damages inflicted pre-sale when there was an assignment of or subrogation of that right from the previous owner to the plaintiff. In plain English, the appellate court wanted to know if the subdivision developer and seller, Lakeside Village Development, had assigned the Niemanns its rights of remedies against Calmar and Calmar’s insurer. These rights only pass on to the new owner if specifically designated in the sale documents.

Because an appellate court can only review what is already in the record on appeal and not any documents not yet submitted into evidence, the court was unable to consider documents the Niemanns had obtained post-summary judgment that allegedly prove subrogation. As such, the court was unable to find any evidence in the facts that showed evidence of such subrogation and therefore affirmed dismissal of the Niemanns’ claims against American Empire.

With that said, there is light at the end of the tunnel. The Louisiana Code of Civil Procedure affords plaintiffs the right to amend their petitions. As such, the Niemanns will have the ability to amend their complaint and submit the evidence of subrogation they have found.

If you suspect your home was built with Chinese drywall, contact the Berniard Law Firm. Providing the best experts in construction and diagnosing the cause of damages, our law firm is fully capable of meeting your litigation needs.

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In Calcasieu Parish School Board vs. Mary Miller, the Louisiana Third Circuit examines a case in which Ms. Miller’s daughter was involved in a fight at school that resulted in injury to an art teacher employed by the school board. The school board paid the teacher workers’ compensation, then sued Ms. Miller’s homeowner’s insurance company, Louisiana Citizens Property. Both the School Board and the insurance company filed for summary judgment. A summary judgment is a ruling by the judge in favor of the filing party before the evidence in the case is presented. The trial court granted the School Board’s motion and denied the insurance company’s. The Third Circuit, in an opinion that elucidates the court’s manner of interpretation of insurance contracts, upheld the trial court’s decision.

In insurance law, the service agreement is the governing contract. The interpretation of this contract may be the deciding factor in the case. When determining coverage, the law requires that the court interpret the parties’ common intent, beginning with the insurance policy itself. The words and phrases used are assumed to have their everyday meaning, stated by the Louisiana Supreme Court as their “plain, ordinary, and generally prevailing meaning,” unless they have obtained a technical meaning. The entire contract must be considered, meaning that if a sentence affects the meaning of another sentence, then that difference in interpretation must be taken into account.

After the application of these rules, if the meaning is clear, the court is bound to apply the contract as written. Of course, at times there may still be different ways that the agreement can reasonably be interpreted. If this situation occurs, there is an ambiguity in the contract. When there is ambiguity regarding the meaning, the court favors the interpretation of the contract that grants coverage.

In the agreement between Ms. Miller and Louisiana Citizens Property, the contract stated that coverage would be granted for medical expenses resulting from actions of one of the individuals insured. A later provision excludes any “loss…[c]aused by a peril…which is expected or intended by one or more ‘insureds’….” Any time a fight takes place, injuries can be expected. Thus injuries such as the teacher’s that result from a fight, would be excluded.

Of course, the daughter would not expect to injure the teacher. Citizens Property argued that because of the mention of “bodily injury,” including an injury “of a different kind, quality, or degree than initially expected or intended,” the exclusion applied. Under this argument, even if the daughter did not expect to harm the teacher, she may have had the expectation that someone would be injured, and thus the resulting injuries would fall under the exclusion. The insurance company would then not be liable for the teacher’s injury.

The insurance company’s argument may seem convincing; however, the language of the exclusion creates an ambiguity, speaking of a “loss” from a “peril.” A loss is not a liability as a liability results when an individual or entity’s actions cause harm to another person and that person has a legal claim to be recompensed for the harm. A loss, in the context of this agreement, is generally damage to property. In addition, peril, as used earlier in the agreement, refers to loss to property, not liability arising from injury to others. The provision, however, also refers to bodily injury. Some of the language seems to limit it to property loss, while the reference to bodily injury indicates that it may be more extensive. Thus, it is unclear whether the exclusion should include liability for injury.

Following the rule that an ambiguity will be interpreted in favor of coverage, the court upheld the lower court’s ruling against Louisiana Citizens Property and in favor of the Calcasieu School Board. Such matters demonstrate the ambiguity in language that requires careful legal argument and calculated application of clauses to receive a quality verdict.

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Keith Brown v. State Farm Mutual Automobile Insurance Company, is a very interesting case to come out of the Parrish of Caddo, Louisiana. Plaintiff, Keith Brown, was injured in a two-car accident on June 30, 2008, while he was the passenger of Michael Darnell. The driver of the other car involved in the accident was Ronald Moseley. At the time of the accident, Plaintiff was insured by State Farm Mutual Automobile Insurance Company (State Farm).

State Farm was given notification of the accident on July 8, 2008, and a claim was set up. On July 18, 2008, State Farm was contacted by Plaintiff’s medical provider, Dr. Diane Sino at Chiropractic Health Center. Subsequently, State Farm paid the submitted bills, with the exception of those bills that were not paid due to invalid procedure codes; or due to a code’s inclusion in another procedure on the bill; or because the code was used more than normally was expected during a visit. Plaintiff and Sino were informed of the reasons for nonpayment, and they did not dispute them.

Further complicating these matters is the fact that on August 5, 2008, Plaintiff was involved in another car accident. On September 10, 2008, he informed State Farm about the accident, and he indicated that Allstate Insurance Company would be responsible for all medicals incurred for that accident. Plaintiff and adjusters for State Farm and Allstate confirmed this during a three-way conference call in which Allstate gave State Farm its claim number and told State Farm to forward its medical payments demand for reimbursement. State Farm had made its final payment to Dr. Sino on September 3, 2008 before receiving notice of the second accident. On September 30, 2008, State Farm sought a refund from Allstate for those inadvertent payments.

This case raised several complicated issues, mainly who was responsible for Plaintiff’s medical bills, since he sustained injuries in two different car accidents and within a relatively short time frame. In December 2008, Plaintiff filed suit against the drivers and their insured for the June 2008 accident. Plaintiff’s claims against Moseley and his insurance company, Shelter Mutual Insurance Company (“Shelter”), were settled on August 29, 2009 for $13,000 pursuant to a “receipt and release.” As pertains to State Farm, in May 2009, State Farm had informed Plaintiff that it would pursue a subrogation claim of $3,894.82 (the amount of the medical coverage paid by State Farm) against Plaintiff, and it requested that he do nothing to jeopardize those rights. In August 2009, Plaintiff’s attorney sent a letter to State Farm indicating that State Farm’s subrogation claim would be protected.

On August 21, 2009, Plaintiff and his attorney received a check for $10,642.31, and a check payable to State Farm for $2,357.69. On September 11, 2009, Plaintiff forwarded the check to State Farm, stating that it represented the “full and final settlement for any subrogation rights that you have against Mr. Brown for payments made in reference to the accident of June 30, 2008.” In the meantime, Plaintiff’s attorney sent a certified letter dated August 14, 2009,to State Farm, indicating that an outstanding balance of $458.18 was owed to Dr. Sino. State Farm received this letter on August 19, 2009. It is this balance which is at issue in the case.

On November 12, 2009, plaintiff filed suit against State Farm, alleging nonpayment of the $458.18, as well as damages and attorney fees due to bad faith. In May 2011, State Farm filed a motion for summary judgment, which the trial court subsequently granted.

The Court of Appeal, for the Second Circuit of Louisiana, affirmed the trial court’s decision. The Court noted that the disputed amount, the $458.18, fell into two categories. One category, totaling $252.86, consisted of items submitted to State Farm that were denied due to “invalid procedure codes, inclusion in another item on the same bill, or submission of multiple codes for the same thing for the same visit.” The other category, totaling $205.32, consisted of items for treatment that took place after the second accident. The Court also found that in regards to all other payments that were not at issue, that State Farm paid them in a timely manner.

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Kevin and Corliss Stenson, Et Al. v. City of Oberlin and Meyer, Meyer, LaCroix and Hixson, Inc. is a very interesting and very important case to come out of the Parish of Allen. The case resulted in divergent opinions between the trial and appelate courts of the Allen Parish, ultimately requiring the Supreme Court to settle the matter. The Supreme Court accepted the case on a Writ of Certiorari, not just to resolve the conflicting results of the trial and appelate courts, but to “resolve a split in the circuits as to whether Louisiana Code of Civil Procedure article 1153, the so called ‘relation back’ doctrine, controls the Fuseliers (the plaintiff in the present case) intervening action or whether Louisiana Code of Civil Procedure 1067, providing the time limitation exception for incidental demands, governs.” The results of this Supreme Court decision will significantly impact future jurisprudence by setting a controlling precedent not just for the Allen Parish, but statewide in decision involving a choice between these two statutes. Before the Louisiana Supreme Court granted Certiorari in this matter, the Second, Third, Fourth and Fifth Circuits confronted similar situations requiring a decision between which of these two statutes to apply.

In the present case the residents of the City of Oberlin brought claims for “property damage and personal injury caused by sewerage overflow” against the City of Oberlin. They later decided to join Meyer, Meyer, LaCroix and Hixson (MMLH) as defendants. For present purposes, the important events to note in the procedural history of this case are the filings of a Second Supplemental Petition for recognition of class status on March 11, 2005, and the service of this petition on the defendant MMLH on March 17, 2005.

On July 20, 2006 Silton and Robin Fuselier filed a petition to intervene as plaintiffs. To intervene means to “become a party to a legal prceding begun by others in order to protect an alleged interest in the subject matter of the proceeding.” The Fuseliers claimed that they too had been damaged by the sewerage overflow.

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As a Louisiana law firm, our practice takes great pride and enjoyment from Fat Tuesday and all of the history that follows. For all of our readers in the New Orleans area, have a safe and happy holiday.

Postings will resume shortly. In the meantime, laissez les bon temps rouler!

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The Third Circuit Court of Appeal for the State of Louisiana affirmed a Pineville City Court’s decision to grant the plaintiffs’ awards for lost wages and injuries that resulted from a serious traffic accident. The decision was affirmed by the appellate court after a finding that the plaintiff was not negligent in the incident and there was no clear showing of error made by the the trial court.

In considering the defendants, Empire Fire & Marine Insurance Company and the defendant driver’s allegation that the trial court erred in the vehicular accident case, the appellate court explored the facts and reasoned that the offered evidence to support a finding of error was not valid. In order to overturn a trial court’s decision, a court of appeal must find manifest error or determine that the initial ruling was clearly wrong. If the testimony provided is not credible, or the inferences of fact were not reasonable, the appellate court may overturn a decision. However, in this case, the appellate court declared that the testimony was credible, in fact, the defendants own testimony supported the trial court’s ultimate decision. Furthermore, the trial court’s assessment of damages is a finding of fact to which appellate courts give great deference on review. It is not an easy task to simply overturn a damages award, thus, as a result, the record must clearly reveal that the jury abused their discretion in making its award.

The plaintiff in this case was a young woman who was driving her Pontiac Grand Prix with her son and an acquaintance who had his ten year old son as passengers. the plaintiff’s vehicle was in the far right lane on a four lane highway with two eastbound and two westbound lanes. The lane the plaintiff was traveling in became heavily congested, thus, she looked in her rear view mirror to determine whether or not the left hand lane was safe to enter. This is an important factor to consider, since the defendant driver testified that he saw her check her rear view mirror numerous times, supporting the idea that she did not simply enter into the lane negligently. In addition to the plaintiff driver checking her rearview mirror, the adult passenger in the vehicle also checked out the window to assure her that it was safe to change lanes. As she entered the lane, an eighteen-wheeler operated by the defendant collided with her Pontiac, making it spin to face the opposite direction. The issue raised by the incident was who was at fault for the collision.

Many times factual determinations rest on testimony provided. In this case, the officer at the scene provided the conversations he had with both parties following the accident. What the officer had to say leaned heavily in the plaintiff’s favor, since the eighteen-wheeler driver declared that he saw the plaintiff check her rear view mirror numerous times and as he was behind her, decided to change lanes at essentially the same time she did, resulting in the collision. Following the accident the plaintiff driver and her passengers and the three passengers sought medical attention, the doctor’s report indicated that two of the passengers suffered various soft-tissue injuries, including cervical, thoracic, and lumbar strains, a post-traumatic headache, and clavicle damage. In order to remedy there injuries physical therapy, medication, and cold/hot packs were prescribed. Unfortunately, none of the injured parties had medical attention, so the medical expenses began to weigh heavily on their finances. Specifically, the plaintiff’s acquaintance that was riding in her vehicle the day the collision occurred was a carpenter, his injuries grew increasingly worse, negatively impacting his ability to perform his work duties. With the loss of income, increasing medical expenses, and the need for future help, the lawsuit ensued. The trial court held that the defendant driver was solely responsible for the accident and the trial court awarded $9,500 in general damages to the adult passenger plaintiff as well as $11,000 in general damages as well as $1,500 in lost wages to the driver plaintiff. Both adult passengers were reimbursed for their medical expenses.

The trial court determined that the testimony provided by all the parties and the resulting injuries supported the finding of damages and responsibility. Yet, the defendants attempted to portray to the appellate court, that the fact at issue was the trial court’s failure to apply appropriate law to the facts of the case. The entire basis of their argument was that the plaintiff driver “it must be presumed…did not look before she turned because if she had looked she would have surely noticed the appellant’s 18-wheeler.” Further, the defendants alleged that the plaintiff did not testify at trial due to a prior felony conviction, thus her declarations in regards to the collision should be held unreliable. Neither argument succeeded. First, the defendant driver testified that he saw the plaintiff driver check her rear view mirror “numerous times,” this negates the defendants argument that she simply “should have known.” Secondly, the trial court was fully aware of her prior felony conviction, but apparently found the plaintiff’s position more credible then the defendant driver’s. Lastly, the plaintiff had no obligation to testify, no one subpoenaed her as a witness, the defendants never called her to the stand.

The defendants failed to provide any authority for their positions, they simply argued that the trial court’s ruling was not fair. In order to make a legal position, one must first build a foundation using precedent, case law, or statutory authority. Without a foundation a building will fall, as such, the defendant’s argument failed without having any support.

If you have been injured in a car accident, you need representation that will be able to build the legal foundation you need in order to have a supported legal argument.

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In Matte v. Imperial Fire & Casualty Insurance Co., the Louisiana Court of Appeal agreed with the decision of the 13th Judicial District Court, Parish of Evangeline that the City of Ville Platte (City) was not liable for a car crash. The crash in question occurred on August 20, 2008, when Michael Jenkins was driving in Ville Platte. Jenkins approached LaSalle Street when, behind a tree, he noted a flashing red light. Despite this sign, Jenkins continued into the intersection, where his vehicle struck the car containing Dana Matte and two passengers. All three suffered injuries.

Matte alleged that the City had failed to maintain its right-of-way because foliage blocked view of the stop sign. The City defended itself by showing it had two traffic control devices at the intersection: the stop sign, and a flashing red light that was more visible to drivers. The City asked the district court to decide that it was not liable while Allstate, the underinsured motorist insurer for Matte’s employer, opposed the motion. The 13th Judicial District Court, Parish of Evangeline granted the City’s motion.

Louisiana statutes limit liability of public bodies “unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.” The City did not dispute that it knew a tree blocked the stop sign. Instead, it showed in a photograph that the flashing red light and stop sign were clearly visible to Jenkins from where he approached the intersection. A flashing red light means that drivers must stop.

Jenkins said that trees blocked both signals, but he estimated that he saw the flashing red light about five seconds before he reached the LaSalle Street intersection but believed that a flashing red signal meant the driver should exercise caution and slow down.

The City Street Commissioner, who is familiar with the intersection, stated he had never witnessed a time when the foliage obscured the flashing red light for a southbound driver. The district court, which said it was familiar with the intersection, agreed. Upon review, the court of appeal analyzed the evidence received by the district court. The City photographs showed that Jenkins should have seen the flashing red light in enough time to respond, but Jenkins did not believe he had to stop at the flashing red light. The reviewing court concluded that the district court was correct when it determined that Jenkins’ negligence caused the accident.

This conclusion means that even if one traffic control device at the intersection may not always be easy to see, a second, more visible device providing the same warning shields the municipal government from liability. Because the City installed the flashing light, it was not liable for an accident when at least the flashing light was visible to a driver who had time to stop.

Auto accidents and the many types of insurance policies that may cover them are complicated matters. Specialized policies and coverage practices are not common knowledge. Governments may be liable, but it may require added knowledge of the facts and the limitations to immunity from suit. An experienced lawyer knows what to look for to obtain the best possible recovery.

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