Verdict in day care drowning contested - Insured claims it represented only 1 of 3 defendants found liable for $9.8M verdict.

Plaintiffs' lawyers who secured a $9.8 million verdict for the parents of a toddler who drowned at an unlicensed day care center operating in a private home said they have an unusual challenge in collecting the money.

They argued that Cincinnati Insurance Company, the carrier of the homeowner's insurance policies, is responsible for the entire judgment, even though the jury said the homeowner was only 22 percent liable.

"It's a strange set of circumstances," said Jeffrey R. Harris of Harris Penn Lowry DelCampo, who tried the case along with R. Alan Cleveland. "I believe in the end, Cincinnati is on the hook for the whole thing."

Not so, said Cincinnati's Associate Counsel James T. Perry, who defended the homeowner at trial. "We disagree with that portion of the verdict that applies to my client, Terry Moon. However, we respect the jury system. No decision has been made on an appeal," Perry said.

A Gwinnett County State Court jury last month found in favor of the plaintiffs, parents Kemi Green and Gbolahan Bankolemoh, against all three defendants. The case was tried before Gwinnett County State Court Judge John F. Doran Jr.

The jury said Tanya S. Moon, who was baby-sitting a group of children at the time that 23-month-old Abiola Bankolemoh fell into a backyard swimming pool, was 50 percent responsible. The jury said Shawn D. Moon, Tanya's husband, was 28 percent responsible.

Terry Moon, Shawn's father and the owner of the home, was found 22 percent responsible.

The suit alleged that Tanya Moon was "babysitting several children at her and defendant Shawn Moon's residence" in 2009 when she "left the children in a room unattended." The boy "found his way out of the room and into the backyard of the Moon residence, where he fell into the pool and drowned."

The complaint accused the defendants of negligent supervision, failing to maintain their pool in conformance with local codes and failure to keep their premises safe, as well as wrongful death and bad faith.

Perry contended that only Terry Moon is his client, but the plaintiffs' lawyers disagreed.

"Tanya and Shawn were covered under the homeowner's and umbrella [policies]. All three should have been defended," said Harris. He noted that Cincinnati Insurance initially defended all three Moons and then dropped Tanya and Shawn before the trial. Tanya and Shawn went to the four-day trial without counsel, Harris said.

"The way this should have happened, if Cincinnati really believed they didn't have an obligation, would have been for them to immediately stay this proceeding and file a declaratory judgment," said Harris. "It's almost worse for the insured to defend them for a while and then withdraw."

Perry declined to discuss the details of the case.

An insurance defense attorney not involved in the case, William D. Strickland of Temple Strickland Dinges & Schwartz, said policies are worded differently and that residential policies in particular have more exclusions for business use.

"It's going to come down to the policy language," Strickland said. He added that even if an insurer chose to defend a case, that wouldn't mean it had a "duty to indemnify" or pay the judgment. Clearly, it appears, Cincinnati made a determination that they had neither a duty to defend or to indemnify.

Harris said the next step is to "begin our efforts to collect and have a conversation with the insurance company to explain why we think they're wrong."

Cleveland, who initiated the lawsuit and brought in Harris, said his clients wanted the trial to reveal what really happened to their son, but many questions weren't answered.

Tanya Moon, who faces criminal charges about the boy's death, cited the Fifth Amendment in declining to answer a number of questions while she was on the witness stand.

"Unlike a criminal proceeding, in a civil case, if a witness takes the Fifth, the jury may assume the answer would have been harmful," Cleveland said.

Cleveland and Harris said jurors told them they were upset that a day care facility could be so negligent.

The plaintiffs' lawyers said Tanya Moon had been working the night shift at a local Wal-Mart and then coming home in the morning to start babysitting. They said the children tried to wake Tanya on the day Abiola disappeared but weren't able to. They said it was Abiola's 3-year-old brother who discovered the body in the above-ground pool, which was accessible from a deck behind the house.

The plaintiffs' lawyers said no one knows exactly how long Abiola was at the bottom of the pool—filled with "dark, nasty water"—before his brother was able to summon help.

"Everybody needs to make sure wherever their kids are in day care that they are licensed," said Harris. "And if you have a pool, that it's closed off."

Both Abiola and his brother had been staying with Moon for about a year while their mother worked as a pediatric home-care nurse, Harris and Cleveland said. She had placed them there instead of in a larger day care center because she believed the home environment would be better for them, they said.

The case is Green v. Moon, No. 09C09633-6.