Last year, 32 children died of heat stroke in the U.S. after being left in hot cars. The year before, it was 44 child fatalities for the same reason, and there have been more than 715 child deaths for this same cause since 1990.
That’s according to KidsAndCars.org, which is one of the many organizations that has launched public education awareness campaigns over the last several years to put a stop to this preventable form of death. Most often, it results from caregivers forgetting the child in the car seat in the rear of the vehicle. In Florida, the problem is particularly pervasive, ranking No. 2 in the nation, just behind Texas.
One wrongful death lawsuit was filed by Florida parents whose infant child died in 2011 after the driver of a daycare van left the baby in the back of the vehicle for more than seven hours.
In Bryant v. Windhaven Insurance Company, before the Florida Third District Court of Appeal, the question was whether an insurance policy that covered a sedan owned by the van driver would provide coverage for this incident. This was in spite of the fact that the covered sedan was not involved in the incident. Rather, the van was actually owned by the daycare center.
According to court records, the van was used to transport children to and from the center. The van driver was an employee of the daycare. The driver arrived at the day care in the morning with several children in the vehicle. However, he forgot to take the infant out of the back seat. The baby remained there in the summer heat for seven hours in the parking lot before being discovered.
The child’s parents, on behalf of the child’s estate, filed a wrongful death lawsuit against the daycare center, its landlord and the driver.
After the lawsuit was filed, the driver notified his personal insurance company of the claim and requested a defense and indemnity per his personal automobile insurance policy. The insurer reserved its rights, but still provided a defense. It then filed a declaratory action with the estate as well as with other defendants involved, asserting the policy did not provide coverage for the child’s death or any purported negligence by its insured.
The insurer cited two coverage exclusions to support its position:
- An exclusion for liability coverage of an insured for use of a vehicle in insured’s course and scope of employment or occupation;
- An exclusion for liability coverage for ownership, maintenance or use of any vehicle furnished for regular use other than the covered automobile.
Trial court granted summary judgment under the second exclusion, but not as it pertained the first cited exclusion.
The estate appealed and the insurance company cross-appealed.
The appellate court agreed with trial court for its grant of summary judgment on the “regular use” exclusion. However, appeals court found trial court erred in not providing summary judgment under the employment exclusion.
The estate had argued causation – i.e., that the child’s death wasn’t caused while defendant van driver was using the van, but rather while the van was parked at the daycare center. However, the court found there was a direct causal connection between the use of the van and the tragic death of this baby. The child’s death were the result of an accident arising out of the use of the van for employment purposes. Thus, coverage is not provided.
This does not mean the child’s parents will be unable to recover damages. They still have a pending case against the van driver personally, as well as against the daycare center and the landlord. Those matters are still pending.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Bryant v. Windhaven Insurance Co., Aug. 5, 2015, Florida Third District Court of Appeal
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Fleming v. Dionisio – Court Affirms $3.4M DUI Death Verdict, July 23, 2015, Fort Myers Wrongful Death Attorney Blog