When parents leave their children with a daycare, they expect the employees to take care of their children and keep them safe. Sadly, children are sometimes injured or killed while in the care of a babysitter or daycare. If a child’s injuries are caused by the negligence of a babysitter or daycare, the child or parents may be able to recover for the loss.

A recent Third District case considered whether an insurer who issued a personal automobile policy was liable for a child’s death in a vehicle belonging to a daycare. In Bryant v. Windhaven Insurance Company, an infant tragically died after being left in a daycare’s van for more than seven hours in the summer.

The estate sued the daycare, the daycare’s landlord, and the driver of the van. The driver then sought defense and coverage from his personal automobile insurance policy, even though the death occurred in the daycare’s van. His insurer provided the defense under a reservation of rights, meaning that it reserved its right to later deny coverage. The insurer then filed a declaratory action claiming that the policy did not provide coverage for the child’s death.

The insurer pointed to two exclusions in the policy. The first exclusion provides that the policy does not provide liability coverage for any vehicle being used for or in the course of the insured’s employment. The second exclusion stated there was no liability coverage for the “ownership, maintenance, or use of” a vehicle furnished or available for the regular use of the insured.

The trial court denied the insurer’s motion for summary judgment based on the employment exclusion, but it granted the motion based on the regular use exclusion. The insurer and the state each appealed.

The Third District easily determined that the daycare’s van was supplied for the regular use of the driver and was therefore subject to the regular use exclusion without significant discussion.

Although finding that the regular use exclusion applied was sufficient, the court then considered the employment exclusion. The argument against applying the exclusion was based on causation. The estate argued that the child’s death was not caused by the driver’s “use” of the daycare van, partly because the van had been parked at the time. The court applied a three-prong test to determine if the incident was the result of the “use” of the vehicle. The test requires that the accident arose from the “inherent nature of the automobile, as such” and “within the natural territorial limits of an automobile.” Under this second prong, the “use, loading or unloading” must not have stopped. The third prong requires that the automobile produce the injury, rather than just being a contributory cause.

The Third District found that the first prong was met because the child’s death arose from the use of the van for passenger transport. The child’s death was a result of unloading the van, so prong two was also met. The child had not been unloaded from the vehicle, so unloading had not stopped. Finally, the van caused the child’s injury and death.

The Third District affirmed the trial court’s order of summary judgment for the insurer based on the use exclusion. The court noted that its analysis of the employment exclusion was not necessary in this case, but they chose to provide it in case there was future review. The Third Circuit affirmed the trial court’s decision.

Although the court found that the driver’s insurer was not liable, this case does not address the liability of the defendants in the estate’s original lawsuit. Therefore, the lack of coverage from the driver’s policy does not necessarily mean a lack of recovery.

If your child has been injured at a daycare center, the experienced South Florida child injury attorneys at Anidjar & Levine can explore all potential avenues of recovery to get the compensation you or your child deserve. Call us (800) 747-3733, or submitting an on-line “Contact Us” form.

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