Scottsdale Insurance Co. need not defend and indemnify a school in the accidental death of a child left on a school bus, based on an automobile exclusion in its policy, a federal appeals court said Tuesday, upholding a lower court decision.
After a 3-year-old boy participated in a field trip with his classmates at Houston-based Discovering Me Academy LLC, a janitor checked him on a school bus truant list, according to the ruling by the 5th US 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 later came to pick him up from school, and he was eventually found dead of heat exhaustion on the floor of the school bus.
Scottsdale Insurance Co. filed suit in US District Court in Houston to establish its duty to defend or indemnify the school and its principal.
The district court granted the insurer̵7;s motion for summary judgment and held that the policy’s automobile exclusion, which covered bodily injury resulting from the use of any automobile driven by the insured, applied.
A three-judge panel of the Court of Appeals affirmed the lower court’s decision. Discovering Me Academy had paid an additional premium for liability insurance for sexual and/or physical abuse, and the school argued that those coverages do not include automatic exclusion and should apply in this case, the ruling said.
The panel disagreed. “Even assuming without deciding that the sexual and/or physical injury or assault liability coverage includes RP’s accidental death, the automobile exclusion is incorporated into the form,” it said, to affirm the lower court.
Attorneys in the case did not respond to requests for comment.