Louisiana Court of Appeals Concludes that Leaving Child in Hot Car to Die is Excluded Use of Auto
Read the full article at https://lnkd.in/gZe69xug and at https://zalma.com/blog plus more than 4200 posts.
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.
FACTUAL BACKGROUND
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:
occupancy,
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.
Duty
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
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.
ZALMA OPINION
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.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
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 [email protected].
Subscribe to Zalma on Insurance at locals.com https://zalmaoninsurance.local.com/subscribe.
Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.
Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com.
Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/
Concurrent Cause Doctrine Does Not Apply When all Causes are Excluded
Post 5119
Death by Drug Overdose is Excluded
See the full video at https://lnkd.in/geQtybUJ and at https://lnkd.in/g_WNfMCZ, and at https://zalma.com/blog plus more than 5100 posts.
Southern Insurance Company Of Virginia v. Justin D. Mitchell, et al., No. 3:24-cv-00198, United States District Court, M.D. Tennessee, Nashville Division (October 10, 2024) Southern Insurance Company of Virginia sought a declaratory judgment regarding its duty to defend William Mitchell in a wrongful death case pending in California state court.
KEY POINTS
1. Motion for Judgment on the Pleadings: The Plaintiff moved for judgment on the pleadings, which was granted in part and denied in part.
2. Duty to Defend: The court found that the Plaintiff has no duty to defend William Mitchell in the California case due to a specific exclusion in the insurance policy.
3. Duty to Indemnify: The court could not determine at this stage whether the Plaintiff had a duty to ...
GEICO Sued Fraudulent Health Care Providers Under RICO and Settled with the Defendants Who Failed to Pay Settlement
See the full video at https://lnkd.in/gDpGzdR9 and at https://lnkd.in/gbDfikRG, and at https://zalma.com/blog plus more than 5100 posts.
Post 5119
Default of Settlement Agreement Reduced to Judgment
In Government Employees Insurance Company, Geico Indemnity Company, Geico General Insurance Company, and Geico Casualty Company v. Dominic Emeka Onyema, M.D., DEO Medical Services, P.C., and Healthwise Medical Associates, P.C., No. 24-CV-5287 (PKC) (JAM), United States District Court, E.D. New York (July 9, 2025)
Plaintiffs Government Employees Insurance Company and other GEICO companies (“GEICO”) sued Defendants Dominic Emeka Onyema, M.D. (“Onyema”), et al (collectively, “Defendants”) alleging breach of a settlement agreement entered into by the parties to resolve a previous, fraud-related lawsuit (the “Settlement Agreement”). GEICO moved the court for default judgment against ...
ZIFL – Volume 29, Issue 14
Post 5118
See the full video at https://lnkd.in/geddcnHj and at https://lnkd.in/g_rB9_th, and at https://zalma.com/blog plus more than 5100 posts.
You can read the full 20 page issue of the July 15, 2025 issue at https://lnkd.in/giaSdH29
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
This issue contains the following articles about insurance fraud:
The Historical Basis of Punitive Damages
It is axiomatic that when a claim is denied for fraud that the fraudster will sue for breach of contract and the tort of bad faith and seek punitive damages.
The award of punitive-type damages was common in early legal systems and was mentioned in religious law as early as the Book of Exodus. Punitive-type damages were provided for in Babylonian law nearly 4000 years ago in the Code of Hammurabi.
You can read this article and the full 20 page issue of the July 15, 2025 issue at https://zalma.com/blog/wp-content/uploads/2025/07/ZIFL-07-15-2025.pdf
Insurer Refuses to Submit to No Fault Insurance Fraud
...
Rulings on Motions Reduced the Issues to be Presented at Trial
Read the full article at https://lnkd.in/gwJKZnCP and at https://zalma/blog plus more than 5100 posts.
CASE OVERVIEW
In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.
FACTS
Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.
Prior to trial Bernier had three remaining claims against State Farm:
1. negligent and reckless claims handling;
2. violation of covenant of good faith and fair dealing; and
3. award of punitive damages.
Both Bernier and State Farm dispositive motions before ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
See the full video at https://lnkd.in/g-f6Tjm5 and at https://lnkd.in/gx3agRzi, and at https://zalma.com/blog plus more than 5050 posts.
This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...