Metropolitan News-Enterprise


Friday, August 25, 2006


Page 3


Insurance Auto Exclusion Includes Children’s Deaths in Hot Car—C.A.


By a MetNews Staff Writer


The deaths of children left in a locked vehicle on a hot day fall within a liability insurance policy’s exclusion for injuries arising out of the use of an automobile, this district’s Court of Appeal ruled yesterday.

Div. Four affirmed the judgment entered by Los Angeles Superior Court Judge Joanne O’Donnell after she sustained United National Insurance Company’s demurrer to a complaint filed by Twila Prince and David Smith, Jr. seeking recovery for the wrongful deaths of their two children, Dakota Denzel Prince-Smith and Nehemaiha Nate Prince-Smith.

Dakota and Nehemaaiha had been placed by the Los Angeles County foster care system in the care of Leslie Smoot. Smoot was licensed by Trinity Children and Family Services to act as a foster parent, and was co-owner with her husband of A Child’s Place Preschool in Lancaster.

In 2003 Smoot left Dakota and Nehemaaiha strapped to their car seats inside her SUV in front of her preschool for six hours, causing their deaths.

Prince and Smith filed suit for wrongful death against the county, Trinity, the Smoots and the preschool. Prince and Smith filed suit against United National after Trinity settled and assigned to Prince and Smith its right to recover against United National, which had issued a “Foster Parent Liability Policy” to Trinity to cover the acts of foster parents licensed or certified under its authority.

The policy contained an exclusion for injuries arising out of the ownership, maintenance, use or entrustment to others of any auto owned or operated by or rented or loaned to any insured.

After United National demurred based on the exclusion, Prince and Smith argued that the exclusion did not apply because Smoot’s negligence was unrelated to her use of the automobile.

But O’Donnell said:

“Smoot’s liability simply cannot be dissociated from the use of the vehicle. Absent the hot car, the children would not have died, and Smoot would not have faced any liability for negligence. Because her liability necessarily arose out of her use of the vehicle — parking it and leaving the children in it — it was not independent of the use of the vehicle.”

O’Donnell distinguished the case from an earlier court of appeal opinion which held that a rape occurring in a car was not covered by an automobile policy because the automobile was nothing more than the situs of the rape, saying:

“In this case, it cannot be seriously argued that the vehicle was merely the ‘situs’ of Smoot’s negligence. Had she abandoned the children in a house, or under a tree, they would not have died in five hours. They died because of the hot car.”

Justice Nora M. Manella, writing for the Court of Appeal, said she agreed with “the well-reasoned order” of O’Donnell.

Manella said:

“[T]he injuries resulting from Smoot’s negligence depended on her operation of the vehicle — specifically, her restraining, transporting and abandoning the children in the SUV.”

Justices Thomas L. Willhite Jr. and Steven C. Suzukawa concurred in the opinion.

Vana Margolese and Wayne Hunkins of Matison & Margolese in Beverly Hills, and Culver City attorney Gregg Goldfarb represented Prince and Smith.

James C. Nielsen and Hillary C. Agnost of Nielsen, Haley & Abbott in San Francisco represented United National Insurance Company.

The case is Prince v. United National Insurance Company, 06 S.O.S. 4500.


Copyright 2006, Metropolitan News Company