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May 11, 2022
Homeowners Policy Provides no Cover for Killing Child by Leaving her in a Hot Car

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.

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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/

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7 hours ago
Zalma’s Insurance Fraud Letter – January 15, 2026

ZIFL Volume 30, Number 2

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

Post number 5260

Read the full article at https://lnkd.in/gzCr4jkF, see the video at https://lnkd.in/g432fs3q and at https://lnkd.in/gcNuT84h, https://zalma.com/blog, and at https://lnkd.in/gKVa6r9B.

Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th 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/ This issue contains the following articles about insurance fraud:

Read the full 19 page issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/01/ZIFL-01-15-2026.pdf.

The Contents of the January 15, 2026 Issue of ZIFL Includes:

Use of the Examination Under Oath to Defeat Fraud

The insurance Examination Under Oath (“EUO”) is a condition precedent to indemnity under a first party property insurance policy that allows an insurer ...

00:09:20
January 14, 2026
USDC Must Follow the Finding of the Administrator of the ERISA Plan

ERISA Life Policy Requires Active Employment to Order Increase in Benefits

Post 5259

Read the full article at https://lnkd.in/gXJqus8t, see the full video at https://lnkd.in/g7qT3y_y and at https://lnkd.in/gUduPkn4, and at https://zalma.com/blog plus more than 5250 posts.

In Katherine Crow Albert Guidry, Individually And On Behalf Of The Estate Of Jason Paul Guidry v. Metropolitan Life Insurance Company, et al, Civil Action No. 25-18-SDD-RLB, United States District Court, M.D. Louisiana (January 7, 2026) Guidry brought suit to recover life insurance proceeds she alleges were wrongfully withheld following her husband’s death on January 9, 2024.

FACTUAL BACKGROUND

Jason Guidry was employed by Waste Management, which provided life insurance coverage through Metropolitan Life Insurance Company (“MetLife”). Plaintiff contends that after Jason’s death, the defendants (MetLife, Waste Management, and Life Insurance Company of North America (“LINA”)) engaged in conduct intended to confuse and ultimately deny her entitlement to...

00:07:30
January 13, 2026
Mediation in State Court Resolves Action in USDC

Failure to Respond to Motion to Dismiss is Agreement to the Motion
Post 5259

Read the full article at https://lnkd.in/gP52fU5s, see the video at https://lnkd.in/gR8HMUpp and at https://lnkd.in/gh7dNA99, and at https://zalma.com/blog plus more than 5250 posts.

In Mercury Casualty Company v. Haiyan Xu, et al., No. 2:23-CV-2082 JCM (EJY), United States District Court, D. Nevada (January 6, 2026) Plaintiff Mercury Casualty Company (“plaintiff”) moved to dismiss. Defendant Haiyan Xu and Victoria Harbor Investments, LLC (collectively, “defendants”) did not respond.

This case revolves around an insurance coverage dispute when the parties could not be privately resolved, litigation was initiated in the Eighth Judicial District Court of Nevada. Plaintiff subsequently filed for a declaratory judgment in this court.

On or about April 15, 2025, the state court action was dismissed with prejudice pursuant to a stipulation following mediation. Plaintiff states that the state court dismissal renders its ...

00:04:26
December 31, 2025
“Sudden” is the Opposite of “Gradual”

Court Must Follow Judicial Precedent
Post 5252

Read the full article at https://www.linkedin.com/pulse/sudden-opposite-gradual-barry-zalma-esq-cfe-h7qmc, see the video at and at and at https://zalma.com/blog plus more than 5250 posts.

Insurance Policy Interpretation Requires Application of the Judicial Construction Doctrine

In Montrose Chemical Corporation Of California v. The Superior Court Of Los Angeles County, Canadian Universal Insurance Company, Inc., et al., B335073, Court of Appeal, 337 Cal.Rptr.3d 222 (9/30/2025) the Court of Appeal refused to allow extrinsic evidence to interpret the word “sudden” in qualified pollution exclusions (QPEs) as including gradual but unexpected pollution. The court held that, under controlling California appellate precedent, the term “sudden” in these standard-form exclusions unambiguously includes a temporal element (abruptness) and cannot reasonably be construed to mean ...

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December 29, 2025
Doctor Accused of Insurance Fraud Sues Insurer Who Accused Him

Lack of Jurisdiction Defeats Suit for Defamation

Post 5250

Posted on December 29, 2025 by Barry Zalma

See the video at and at

He Who Represents Himself in a Lawsuit has a Fool for a Client

In Pankaj Merchia v. United Healthcare Services, Inc., Civil Action No. 24-2700 (RC), United States District Court, District of Columbia (December 22, 2025)

FACTUAL BACKGROUND
Parties & Claims:

The plaintiff, Pankaj Merchia, is a physician, scientist, engineer, and entrepreneur, proceeding pro se. Merchia sued United Healthcare Services, Inc., a Minnesota-based medical insurance company, for defamation and related claims. The core allegation is that United Healthcare falsely accused Merchia of healthcare fraud, which led to his indictment and arrest in Massachusetts, causing reputational and business harm in the District of Columbia and nationwide.

Underlying Events:

The alleged defamation occurred when United ...

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December 15, 2025
Zalma’s Insurance Fraud Letter – December 15, 2025

Zalma’s Insurance Fraud Letter

Read the full article at https://lnkd.in/dG829BF6; see the video at https://lnkd.in/dyCggZMZ and at https://lnkd.in/d6a9QdDd.

ZIFL Volume 29, Issue 24

Subscribe to the e-mail Version of ZIFL, it’s Free! https://visitor.r20.constantcontact.com/manage/optin?v=001Gb86hroKqEYVdo-PWnMUkcitKvwMc3HNWiyrn6jw8ERzpnmgU_oNjTrm1U1YGZ7_ay4AZ7_mCLQBKsXokYWFyD_Xo_zMFYUMovVTCgTAs7liC1eR4LsDBrk2zBNDMBPp7Bq0VeAA-SNvk6xgrgl8dNR0BjCMTm_gE7bAycDEHwRXFAoyVjSABkXPPaG2Jb3SEvkeZXRXPDs%3D

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/

Zalma’s Insurance Fraud Letter

Merry Christmas & Happy Hannukah

Read the following Articles from the December 15, 2025 issue:

Read the full 19 page issue of ZIFL at ...

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