Louisiana Court of Appeals Concludes that Leaving Child in Hot Car to Die is Excluded Use of Auto
Family Security Insurance Company, appealed the trial court’s judgment denying its Motion for Summary Judgment and granting Katty Calderon, natural mother of decedent Avril Sanabria’s Motion for Partial Summary Judgment on the Issue of Insurance Coverage.
In Katty Calderon, Natural Mother Of The Decedent, Avril Sanabria v. Lezly Sanabria, Suly Sanabria, Jonathan Rivera, ABC Insurance Company, DEF Insurance Company, And GHI Insurance Company, No. 21-CA-579, Court of Appeals of Louisiana, Fifth Circuit (May 4, 2022) resolved the appeal.
This litigation arises out of the tragic death of two-year old Avril Sanabria (“Avril”), who remained secured in a car seat’s harness in the rear of a vehicle that was parked in the residential driveway of 494 Carolyn Drive in Destrehan, Louisiana for over six hours, when the external temperature was ninety-seven degrees Fahrenheit.
Suly Sanabria (“Suly”), the decedent’s paternal grandmother, picked up her daughter, Lezly Sanabria (“Lezly”), and her two-year-old granddaughter and Lezly’s niece, Avril Sanabria (“Avril”). Avril was seated in a car seat with the harness secured. Suly then drove Lezly and Avril to her residence. Suly parked her vehicle in the driveway and entered her home alone, leaving Lezly, Jonathon and Avril at the car. According to Suly, she was unable to fasten or unfasten Avril in her car seat because of disabling arthritis in her hands.
Neither Suly nor Lezly removed Avril from the vehicle. More than six hours later, Suly and Lezly realized that neither of them had Avril. Upon returning to her vehicle, Suly discovered Avril was still in the vehicle. As a result, Avril sustained injuries to her mind and body that led to her death.
Katty Calderon, sued Lezly Sanabria, Suly Sanabria, Jonathan Rivera, and three unknown insurance companies.
UPC filed a Motion for Summary Judgment on the issue of insurance coverage. Relying on a motor vehicle liability exclusion contained in the homeowners’ policy, UPC averred that Avril Sanabria’s death arose “out of the occupancy,” “use” and/or “unloading,” of a motor vehicle, as well as the “failure to supervise and/or negligent supervision,” of the child by Suly and Lezly involving a motor vehicle, which precluded coverage for any of Ms. Calderon’s damages.
The trial court determined that the homeowners’ policy issued by UPC provided indemnity coverage for Avril’s death and denied UPC’s Motion for Summary Judgment.
LAW AND DISCUSSION
UPC averred that the trial court erred in ruling that UPC’s homeowners’ policy affords coverage for Avril’s death when the language of the policy unambiguously excludes coverage for an incident arising out of the:
- unloading, and
- use of a vehicle.
Whether an insurance policy provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. An insurer has the burden of proving that a loss comes within a policy exclusion. Additionally, an exclusionary clause in an insurance policy must be strictly construed. However, an insurance policy, including its exclusions, should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.
UPC’s Motor Vehicle Liability Exclusion
The appellate court found that the Motor Vehicle Liability exclusion under the homeowners’ policy is unambiguous and should be applied as written.
The Motor Vehicle Liability exclusion of the homeowners’ policy functions to broadly exclude coverage for bodily injury and property damage “arising out of the occupancy, use, unloading, and failure to supervise or negligent supervision.”
Arising Out Of Use
To conclude that an injury arose out of the use of the automobile, a court must find the vehicle essential to the theory of liability. In this regard, a court should apply a common sense approach to determine whether the duty breached by the insured flows from the automobile’s ‘use’ under the policy language.
As a custodian, Lezly had a general duty to supervise and protect Avril. The record establishes that Lezly frequently babysat Avril, typically three days per week. On the date of Avril’s tragic death, Lezy testified that Avril was in her care and was to stay overnight at her apartment.
In addition to her general duty, the court found that Lezly, as a custodian, also had a specific duty to protect Avril against the risks of harm that can arise out of the “use” of a motor vehicle by children who are left in or with access to the vehicle.
The specific duty relative to parents’ or custodians’ specific duty the “common sense” approach, was applicable to determining whether the operation or use of a motor vehicle is essential to the alleged breach of the specific duty. The complained-of-conduct was Avril remaining secured in her car seat in the rear of Suly’s vehicle, and thereafter, being left unattended in the vehicle, which was unventilated and trapped heat, for several hours, which led to Avril sustaining injuries that caused her death. Based on the record it is clear that Lezly breached both her general duty to supervise and her specific duty to protect Avril from the danger associated with abandoning a minor child in a vehicle under extreme heat conditions.
Suly breached her duty as a host driver by failing to protect her minor guest passenger, Avril, from being placed in a dangerous predicament – being abandoned in a hot vehicle.
Both Suly’s and Lezly’s negligence was a legal cause of the accident in question when Suly and Lezly failed to exercise the required degree of caution and care toward Avril under the specific circumstances of this case.
Use of the vehicle in this case is an essential element to the theory of liability – Lezly’s and Suly’s failure to supervise or negligent supervision of Avril involved use of the motor vehicle.
Louisiana jurisprudence has given a broad interpretation to the words “arising out of the … use of the automobile.” The totality of the circumstances surrounding or leading up to an accident should be examined in determining if the accident arose out of the “use” of the automobile. Avril’s injuries occurred while the vehicle was used for a purpose inherent to vehicles, that is, to transport persons or things from one location to another.
While the vehicle was no longer being operated when Avril was left unattended, it is well established that one need not be actually operating or driving a vehicle in order to be using it. The vehicle was the catalyst for the heat-chamber-like conditions that arose which may not have occurred without the vehicle.
Avril’s injuries arose from the use of the vehicle since she was restrained in her car seat in the rear of Suly’s vehicle for the purpose of being transported. Suly’s and Lezly’s breach of their duties flows from the use of the vehicle when Avril was left unattended in the hot vehicle for several hours.
Arising Out of Occupancy
The plain meaning of “occupancy” refers to “the act, state, or condition of holding, possessing, or residing in or on something.” Black’s Law Dictionary, 10th Ed. 2014. Applying the ordinary, plain, and usual meaning of the term at issue, Avril was “occupying” or “in” the vehicle under the facts of this case, and that the Motor Vehicle Liability exclusion creates no ambiguity with respect to the coverage or lack of coverage contemplated by the homeowner’s policy.
Arising Out of Unloading
Applying the common sense approach to the instant matter, Lezly’s and Suly’s negligence in failing to unload Avril from the vehicle caused Avril to sustain fatal injuries after being left unattended in the rear of the vehicle for several hours. Accordingly, the Motor Vehicle Liability exclusion was triggered.
Arising Out of Failure to Supervise/Negligent Supervision
While the court was empathic towards the parties regarding the tragic incident that led to Avril’s death, it could not say that this homeowners’ policy and the exclusion at issue would lead to absurd consequences or that it is contrary to public policy.
Therefore, the judgment was reversed and UPC’s Motion for Summary Judgment was granted, and Ms. Calderon’s Motion for Partial Summary Judgment on the Issue of Coverage was denied.
The Louisiana Court of Appeal concluded, logically, and with both legal and common sense, that leaving an infant strapped into a hot vehicle sufficient to cause the child’s death was clearly a negligent use of an automobile. Since the claim against a homeowners policy specifically excluded injuries caused by, or arising from the use of an automobile, there was no possibility of coverage under the homeowners policy.
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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
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