Florida Appellate Court Upholds Denial of Insurance Coverage to Defendant Driver in Daycare Van Wrongful Death CaseFlorida Appellate Court Upholds Denial of Insurance Coverage to Defendant Driver in Daycare Van Wrongful Death Case https://www.westandforjustice.com/wp-content/uploads/2018/10/file0001900059289-300x218-2.jpg 300 218 Personal Injury Law Firm | Ft. Myers, Cape Coral, Naples | Lusk, Drasites & Tolisano Personal Injury Law Firm | Ft. Myers, Cape Coral, Naples | Lusk, Drasites & Tolisano https://www.westandforjustice.com/wp-content/uploads/2018/10/file0001900059289-300x218-2.jpg
Many parents rely on daycare services to tend to their children while they are working throughout the day. Although daycare facilities are subject to many health and safety requirements, unfortunately accidents due to an employee’s carelessness occur. When a child’s injuries are the result of a babysitter’s or daycare facility’s negligence, the parents may be able to bring a personal injury action to compensate the child for his or her injuries.
In Bryant v. Windhaven Insurance Co., the Florida Third District Court of Appeal was presented with the issue of whether an insurance company who issued a car insurance policy was legally liable for the death of a child that occurred in a van belonging to a daycare facility. The death occurred after the infant was left inside a daycare facility-owned van during the hot summer months for over seven hours.
Following the tragedy, the infant’s estate brought a wrongful death action against the daycare company, the daycare company’s landlord, and the individual driving the van that day. The driver of the van contacted his personal car insurance company for the purpose of providing defense and coverage, even though the accident occurred in a vehicle owned by the daycare business. The driver’s insurer agreed to provide coverage but did so under a reservation of rights. This means that the insurance company reserved its right to later deny coverage of the incident to the driver.
Shortly thereafter, the insurer filed a document called a declaratory action, stating that the child’s death was not covered under the insurance policy. In reaching this conclusion, the insurer relied on two exclusions in the policy, the first of which indicated that the policy would not cover any vehicle used during the course and scope of the driver’s employment. The second exclusion specifically excluded any coverage for liability associated with a vehicle provided or made available to the insured for regular use.
The insurance company filed a motion for summary judgment, contending that these exclusions barred it from providing coverage for the death of the infant. Although the trial court denied the motion on the basis of the first exclusion, dealing with employment scenarios, it granted the motion for summary judgment based on the second exclusion involving regular use. The insurer appealed.
The Third District Court of Appeal readily agreed that the regular use exclusion provision applied to the facts of this case, allowing the insurance company to deny coverage to the driver. Considering whether the employment-related exclusionary provision applied, however, the court applied a multi-factor test to evaluate whether the death of the infant occurred as a result of the driver’s “use” of the vehicle. According to this three-part test, the accident must arise from the vehicle’s inherent nature and must occur within the “natural territorial limits of an automobile.” This second factor also requires that the use of the vehicle, including unloading and loading, must not have stopped. The final factor requires that the vehicle be the actual producing cause of the injury, as opposed to merely a contributing cause.
Applying this test, the Third District concluded that the first factor was satisfied because the death of the infant arose out of the driver’s use of the van to transport the baby. The second factor was also satisfied. The child remained in the van at the time the accident occurred, meaning that the unloading activity had not yet stopped. Turning to the third factor, the appellate court concluded that the van was the cause of the child’s heat-related death.
If you or a loved one have lost a child due to a daycare facility’s or babysitter’s negligence, you may be entitled to compensation. The wrongful death lawyers at Lusk, Drasites & Tolisano have provided aggressive and dedicated legal guidance to individuals throughout Southwest Florida, including in Cape Coral, Naples, and Fort Myers. Call us now at 1-800-283-7442 or contact us online to set up your free consultation.