Florida’s Third District Court of Appeal recently ruled in Bryant v. Windhaven Insurance Co. that a claim for damages related to the death of an infant in a hot van outside a daycare was not covered under the van driver’s personal insurance policy.
The case dealt directly with the specific exclusions spelled out in this insurance policy, though it was not a rejection of van driver’s liability or the liability of the day care owner.
This tragic case happened in July 2011 when the driver of a van, employed by a local daycare, picked the infant and several other children from home to transport to the facility. When he got there, he unloaded all the children – except one. He forgot. The child was left in the back seat of that van, strapped in a car seat, for over seven hours. The child died of the effects of the summer heat.
The child’s parents took legal action on behalf of themselves and the estate they created for their deceased child, seeking wrongful death damages against the driver personally, as well as against the day care facility and the landlord.
When that lawsuit was filed, defendant van driver – an employee of the day care center – requested indemnification from his car insurance company, stemming from a policy he took out for his personal auto.
The insurance company provided indemnification, but also sought a clarification that it was not liable to pay whatever damages were owed by defendant driver for his negligence because there were certain provisions that excluded coverage. Specifically, the policy states exclusion of coverage for accidents or injuries stemming from the use of an auto being used in the course and scope of employment. Further, the company excludes coverage of any accidents or injuries stemming from ownership, maintenance or use of any vehicle other than the insured’s covered automobile.
In this case, the covered automobile was a sedan that was not involved in the child’s death. The van was owned by the day care facility, and although van driver regularly operated it, it wasn’t covered under his own policy.
Trial court granted insurer declaratory judgement on the regular use exclusion, but denied it on the employment use exclusion. The estate appealed and the insurer cross-appealed (on the employment exclusion).
The appeals court affirmed in part but reversed in part also. Justices found the regular use exclusion was applicable, but so too was the employment use exclusion.
Estate argued the exclusion was inapplicable because the policy specified an exclusion for “use” of an employment vehicle. However, he wasn’t “using” the van in this case because it was parked in the parking lot.
However, the appeals court found a direct causal connection to defendant driver’s use of the van and the horrible death of this young child. The undisputed facts are that this child’s injuries and ultimately death were directly related and proximately caused by defendant driver’s use of this work vehicle.
This does not preclude the family from receiving compensation from the day care or even personally from the driver. However, the driver’s personal insurance company will not have to pay.
The Florida Department of Children and Families reported that so far this year in Florida, three children died inside hot cars so far in 2015, and there have been 11 nationally. Children are at high risk for these types of incidents because their body temperatures can rise three times faster than that of an adult.
If you have been a victim of an accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Bryant v. Windhaven Insurance Co. , Aug. 5, 2015, Florida’s Third District Court of Appeal
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NTSB Asks NHTSA to Study School Bus Safety, Aug. 2, 2015, Fort Myers Wrongful Death Attorney Blog