South Florida Injury Lawyers Blog
The parents of an infant who died tragically in a hot car that was parked outside a Florida daycare facility for seven hours in the summer will not be able to collect any compensation from the driver’s personal insurance policy.
That’s according to a new ruling by Florida’s Third District Court of Appeal in Bryant v. Windhaven Insurance Co., which is part of a larger case in which the parents are seeking justice from the van driver personally, as well as the day care center (his employer) and the landlord of the property where the incident occurred.
This ruling will only affect the case insofar as it relates to the van driver’s personal liability. He may yet still be found personally liable and obligated to pay, but he will not have his personal insurance company to be responsible for that payment if that happens.
The case stems from a July 2011 incident in which the driver, using a van owned and insured by his employer, the day care center, picked up this infant, along with several other children, and transported him to the facility for the day. However, when the driver arrived at the center, he reportedly forgot about the infant in the back seat. The child was later discovered by staffers at the end of the day. The infant was deceased when the workers discovered what happened.
Parents later sued numerous individuals and entities involved, including the driver personally.
At issue in the Bryant case was whether driver’s personal automobile insurance policy would provide coverage for this wrongful death. Although the insurance company provided indemnification for the driver’s defense, it sought a declaratory judgment indicating it would not be liable to cover any damages arising from their insured’s personal negligence.
To bolster its position, the insurance company cited two exclusions in the policy. The first indicated that it would not cover any injuries arising from regular use, maintenance or ownership of a vehicle that was not a named auto. The only car listed on driver’s insurance plan was a sedan, which he was not driving at the time of the incident. Secondly, the policy had an exclusion for use of a vehicle in the course and scope of one’s regular employment.
Trial court, in weighing this question, found that the exclusion for regular use was applicable, but denied the declaratory judgment motion in regards to the employment exclusion.
Both sides appealed.
Plaintiffs argued the regular use exclusion didn’t apply because defendant wasn’t actually “using” the vehicle in question. It was parked in the parking lot. Defense argued the employment exclusion was valid because the incident in question arose from his use of an employer-owned vehicle in connection with his employment.
The appeals court sided with the defense, finding both exclusions were applicable.
Presumably, the day care and landlord do also have insurance coverage, and it’s highly possible those entities could be found liable for this tragic child death as well.
Nationally, 11 children have died so far this year after being left in hot vehicles. Three of those were in Florida.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Additional Resources:
Bryant v. Windhaven Insurance Co., Aug. 5, 2015, Florida Third District Court of Appeal
More Blog Entries:
Birth Injury Legal Fee Limits Still in Effect, Per FL 4th DCA, Aug. 4, 2015, Fort Lauderdale Wrongful Death Attorney Blog