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Day Care Driver’s Personal Auto Insurance Does Not Cover Baby’s Wrongful Death

by | Aug 18, 2015 | Wrongful Death

Charlsie Bryant and Rosland Easterling, co-representatives of the estate of Dominicue Amari Andrews, filed a wrongful death lawsuit after Dominicue Andrews died at 22 months in July 2011, allegedly from the effects of the summer heat he was subjected to when he was left in a car seat in the back of a van used to transport him to the Jomiba Learning Center in Homestead, south of Miami.

Windhaven Insurance Co. defeated a lawsuit filed by the child’s family against policyholder Lelier Perez Hernandez, the driver for Jomiba Learning Center in Homestead.

The appellate court upheld Miami-Dade Circuit Judge Lisa Walsh’s ruling that Hernandez’s personal auto policy excluded coverage for the child’s death.

Windhaven issued Hernandez’s policy for his car-not the van involved in the child’s death. When the child’s family sued the day care, its landlord and Hernandez for wrongful death, the driver notified Windhaven and requested a defense and indemnity under his policy. Windhaven successfully argued Hernandez’s policy provided no coverage in the child’s death, his coverage didn’t transfer to other vehicles he drove and a work-use exemption provided an exclusion.

The estate appealed the ruling, arguing that the cause of Dominicue’s death was not Hernandez’s use of the van, because the death happened while the van was parked at the day care center The Third District disagreed with the Estate and upheld the trial court’s ruling. In particular, the court agreed with the trial court’s holding on the regular use exclusion, saying, “We agree with the trial court that the day care center van, like police squad cars assigned for use by law enforcement officers, was furnished for Mr. Hernandez’s ‘regular use,’ and thus subject to coverage exclusion B.2.b”. However, the appeals court, also found in Windhaven’s favor on the employment exclusion. They found a “direct causal connection between the use of the van and the infant’s tragic death.” “The undisputed circumstances of the death establish that the injuries were the result of an accident arising out of the use of the van,” it said. The appeals court applied a three-prong test established in the 1989 case Race v. Nationwide Mutual Fire Insurance Co. to determine whether an accident arises from ownership, maintenance or use of a vehicle. The court found that the accident met the first requirement that it stemmed from the inherent nature of the vehicle because the van was passenger transport. It fulfilled the second prong in that it stemmed from actual use, in the form unloading, which was not terminated. And it satisfied the third prong that the vehicle itself produced the injury because the alleged hyperthermal injury and death was caused by the van’s windows and lack of cooling or ventilation. “Applying that test, we conclude that the accident in the present case stemmed from ‘use’ of the van, supporting application of the employment exclusion.”

The case is Bryant et al. v. Windhaven Insurance Co., case number 3D14-2524, in the Third District Court of Appeal of Florida. Read the appeal here:





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