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Scottsdale Insurance Co. does not have to defend and indemnify a school in the accidental death of a child who was left on a school bus, based on an automobile exclusion in its policy, a federal appeals court said Tuesday in affirming a lower court ruling.
After a 3-year-old boy attended a field trip with his classmates at Houston-based Discovering Me Academy LLC, a caretaker checked him off a list as having exited the school bus, according to the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Scottsdale Insurance Co. v. Discovering Me Academy LLC; Tanisha Butler.
When a teacher noticed the boy was missing, a classmate reported that he had left the field trip with his parents. He was not in the building when his parents arrived later to pick him up from school, and he was eventually found dead from heat exhaustion on the school bus floor.
Scottsdale Insurance Co. filed suit in U.S. District Court in Houston to determine its obligation to defend or indemnify the school and its manager.
The district court granted the insurer’s motion for summary judgment, holding that the policy’s automobile exclusion, which covered bodily injury arising out of the use of any auto operated by the insured, applied.
A three-judge appeals court panel affirmed the lower court’s ruling. Discovering Me Academy had paid an additional premium for sexual and/or physical-abuse liability coverage, and the school argued that these coverages do not include the auto exclusion and should be applied in this case, the ruling said.
The panel disagreed. “Even assuming without deciding that the sexual and/or physical injury or abuse liability coverage includes R.P.’s accidental death, the automobile exclusion is incorporated into the form,” it said, in affirming the lower court.
Attorneys in the case had no comment or could not be reached for comment.