Submitted: October 9, 2002
Filed: December 4, 2002
JUSTICE STARCHER delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
insured can be a member of the insured's household, and that a person who lives under a
separate roof cannot, it is hereby modified.
5. Because a determination of residency depends on the intent of the parties, it is typically a question of fact that cannot be determined through a motion for summary judgment.
In this appeal from the Circuit Court of Putnam County, we are asked to review
a circuit court order granting summary judgment to an insurance company in a declaratory
judgment action. The circuit court was asked to interpret language in a liability insurance
policy that defined persons insured as including your relatives if residents of your
household. In its order, the circuit court ruled that a tortfeasor, who lived on his father's
farm in a mobile home separate from his father's insured residence, was not a relative who
was residing in his father's household. The circuit court therefore concluded that the
tortfeasor was not insured by the liability insurance policy.
As set forth below, we reverse the circuit court's order.
On July 25, 1996, appellant Hubert Junior Tucker drove to a farm owned by appellee Locie Taylor. The Taylor farm raised and sold pigs commercially, and Mr. Tucker came intending to buy a pig. Locie lived in a mobile home on the farm, and had purchased a second mobile home on the farm in which his son, thirty-eight-year-old appellee Darrell
Lee Taylor, lived. The two mobile homes are between 50 and 100 yards apart. Darrell Lee
worked on the farm for his father.
(See footnote 1)
Mr. Tucker drove to Darrell Lee's mobile home. After knocking on the door, Mr. Tucker noticed smoke coming from the mobile home, and believing that Darrell Lee was inside, began beating on the side of the mobile home. When he received no response, Mr. Tucker kicked in the front door of the mobile home in an attempt to rescue Darrell Lee.
It appears from the record that Darrell Lee was a chronic alcoholic, (See footnote 2) and had apparently passed out inside his mobile home while rendering lard or cooking sausage in a skillet on the stove. Darrell Lee woke up to find his mobile home filling with smoke, and grabbed the burning skillet from the stove. Darrell Lee then carried the skillet to the front door, intending to throw it out so that his mobile home did not catch on fire.
Mr. Tucker, who had just kicked in the door to the mobile home, was severely burned when the skillet of flaming grease was thrown through the doorway by Darrell Lee. Mr. Tucker subsequently brought suit against Darrell Lee and his father, Locie, for
negligence, and Darrell Lee has since admitted he was at fault for Mr. Tucker's injuries.
(See footnote 3)
Locie and Darrell Lee sought coverage from Locie's property insurance company, appellee
Farmers Mutual Insurance Company (Farmers Mutual), to defend against the lawsuit. The
property insurance policy provided liability coverage for any of Locie's relatives if residents
of [Locie's] household. At issue in this litigation is whether Locie's son, Darrell Lee, is a
relative covered by the Farmers Mutual policy.
Farmers Mutual initiated the instant declaratory judgment action against Mr. Tucker, contending that Darrell Lee was not an insured covered by the liability insurance policy purchased by Locie. Specifically, Farmers Mutual asserted that Darrell Lee was not a resident of Locie's household. (See footnote 4)
We review a circuit court's order granting summary judgment de novo.
Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
In reviewing summary judgment, this Court will apply the same test that the circuit court should have used initially, and must determine whether it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify
the application of the law. Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal
Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). As with the circuit
court, we must draw any permissible inference from the underlying facts in the light most
favorable to the party opposing the motion, that is, the appellant. Painter v. Peavy, 192
W.Va. at 192, 451 S.E.2d at 758.
The appellant, Mr. Tucker, argues that the insurance policy at issue provided
liability coverage for relatives such as Darrell Lee who resided in Locie's household.
Mr. Tucker argues that the term household is an ambiguous, flexible, family-oriented
concept. He takes the position that, because the term is ambiguous, it may be construed
broadly to allow an extensive factual inquiry by a jury to determine whether someone is
residing in a particular household. Mr. Tucker contends that because Darrell Lee lived on
his father's land, in a mobile home purchased by his father, he was residing on the property
as a member of his father's household.
The appellee, Farmers Mutual, argues that the term household is a clear, well-defined term, and is not subject to a broad construction. The insurance company argues that household means a collection of persons who live together under the same roof, not those living in separate abodes.
as an insured, but contends he or she is a member or resident of the insured's household. In
sum, we are asked by the appellant to again consider whether the phrase residents of your
household is ambiguous and subject to interpretation.
We begin by noting several axioms of insurance law. We held in the Syllabus of Keffer v. Prudential Ins. Co. of America, 153 W.Va. 813, 172 S.E.2d 714 (1970) that, on the one hand, [w]here the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended. On the other hand, [i]t is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured. Syllabus Point 4, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). Under West Virginia's law, an insurance policy is considered to be ambiguous if it can reasonably be understood in two different ways or if it is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning. Hamric v. Doe, 201 W. Va. 615, 499 S.E.2d 619 (1997); Prete v. Merchants Property Insurance Company of Indiana, 159 W. Va. 508, 223 S.E.2d 441 (1976). When the words of an insurance policy are, without violence, susceptible of two or more interpretations, that which will sustain the claim and cover the loss must be adopted. See Raffel v. Travelers Indemnity Co., 141 Conn. 389, 392, 106 A.2d 716, 718 (1954) (When the words of an insurance contract are, without violence, susceptible of two
interpretations, that which will sustain the claim and cover the loss must, in preference, be
Courts considering whether a person has met the residence requirements of an insurance policy have usually concluded that the question is one of fact, not law. As one court stated:
. . . [t]o reside and its corresponding noun residence are chameleon-like expressions, which take their color of meaning from the context in which they are found. The word residence has been described as being like a slippery eel, and the definition which fits one situation will wriggle out of our hands when used in another context or in a different sense.
Amco Ins. Co. v. Norton, 243 Neb. 444, 447, 500 N.W.2d 542, 545 (1993) (citations omitted).
The word 'resident' certainly may include more than one place. Aetna Cas. & Sur. Co. v. Shambaugh, 747 F.Supp. 1203, 1205 (N.D.W.Va. 1990). This conclusion is apparent from the definition of residence contained in Black's Law Dictionary, which states that residence must be distinguished from domicile:
As domicile and residence are usually in the same place, they are frequently used as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home.
Black's Law Dictionary 1309 (6th Ed. 1990). This Court has acknowledged the flexible, fact- intensive nature of the word residence, and held that while a person may have only one true
domicile, he or she may have more than one residence. As we stated, in Lotz v. Atamaniuk,
172 W.Va. 116, 118, 304 S.E.2d 20, 23 (1983), that [d]omicile and residence are not
synonymous. A man may have several residences, but only one domicile.
(See footnote 5)
Similarly, courts analyzing the word household in insurance policies have
usually concluded that the question of whether a household exists is one of fact, not law.
One court found the term household to be a chameleon like word, Cobb v. State Security
Ins. Co., 576 S.W.2d 726, 738 (Mo. 1979), while another found that the terms have no
absolute meaning. Their meaning may vary according to the circumstances. Cal-Farm Ins.
Co. v. Boisseranc, 151 Cal.App.2d 775, 781, 312 P.2d 401, 404 (Cal.App. 1957). A New
Jersey court stated:
Household is not a word of art. Its meaning is not confined within certain commonly known and universally accepted limits. True, it is frequently used to designate persons related by marriage or blood, who dwell together as a family under a single roof. . . . But it has been said also that members of a family need not in all cases reside under a common roof in order to be deemed a part of the household.
located. The insured lived in one house, which was covered by a homeowner's policy, and
his wife _ from whom he was separated _ and son lived in an adjacent cottage on the
property. When the wife sought indemnification under the homeowner's policy for a
judgment against her in a tort action, the court held that the wife was a member of the
insured's household because the facts supported the insured's belief that the premises was
all one place where the entire family was living. 35 N.J. at 15, 170 A.2d at 808.
Numerous other cases have found a child of divorced or separated parents _ even though living primarily under the roof of only one parent _ was a resident of both parents' households for purposes of insurance coverage. (See footnote 6) Courts note that children often leave belongings at both homes, have a room or area of their own in each home, and until the child expresses another intent, generally hold that the child is a resident of both homes. See, e.g., Simmons v. Insurance Co. of North America, 17 P.3d 56 (Alaska 2001); Aetna Cas.
& Sur. Co. v. Shambaugh, 747 F.Supp. 1203 (N.D.W.Va. 1990); Mutual Service Cas. Ins.
Co. v. Olson, 402 N.W.2d 621 (Minn.App. 1987); Alava v. Allstate Ins. Co., 497 So.2d 1286
(Fla.App. 1986); Cal-Farm Ins. Co. v. Boisseranc, 151 Cal.App.2d 775, 312 P.2d 401
(1957). See also, Annotation, Who is Resident or Member of Same Household or
Family as Named Insureds, Within Liability Insurance Provision Defining Additional
Insureds, 93 A.L.R.3d 420 (1979).
Another common class of cases where courts usually find coverage involves children who have temporarily left their parents' insured house to pursue an education, a job, extensive medical treatment, or to join the armed forces. These individuals often establish a residence a substantial distance from the insured house, and maintain that residence for an extended period. When the facts establish that the child continues to call and treat their parents' house as home, leaving their belongings there and returning when possible, courts usually find that the child is an insured resident of their parents' household. See, e.g., Atlanta Cas. Co. v. Powell, 83 F.Supp.2d 749 (N.D.Miss. 1999) (minor child of divorced named insured resided in insured's household at time of occurrence, even though child was undergoing residential chemical dependency treatment, and even though named insured expressed an intent to send child to live with ex-spouse upon completion of treatment). Wood v. Mutual Service Casualty Ins. Co., 415 N.W.2d 748 (Minn.App. 1987) (son was a resident of his parents' household and covered under automobile policy, even though son joined Army at age 17); Row v. United Services Automobile Assoc., 474 So.2d 348 (Fla.App.
1985) (son with mental illness lived alone in apartment in complex owned by insured father,
but was a member of father's household because he paid no rent or security deposit, signed
no lease, had a key to father's apartment, socialized, ate, cooked, did laundry and bathed in
father's apartment, and received money from father); Crossett v. St. Louis Fire & Marine Ins.
Co., 289 Ala. 598, 269 So.2d 869 (1972) (college student living in a dormitory was a resident
of his parents' household, because he kept a room in the family home, came home on breaks,
stored personal belongings there, listed his parents' address on his driver's license, and
registered for the draft near his parents' home); State Farm Mut. Auto Ins. Co. v. Elkins, 52
Cal.App.3d 534, 125 Cal.Rptr. 139 (1975) (nineteen-year-old daughter lived in a separate
apartment as a temporary experiment to test her independence; she still maintained a
bedroom in the family house; saw her parents daily; ran errands for her parents and used the
family car; and was therefore a resident of her father's household). See also, Annotation,
Who is Resident or Member of Same Household or Family as Named Insureds,
Within Liability Insurance Provision Defining Additional Insureds, 93 A.L.R.3d 420 (1979).
In determining whether there is a common household, our courts often consider whether the insured and the relative seeking coverage share a substantially integrated family relationship. Gibson v. Callaghan, 158 N.J. 662, 673, 730 A.2d 1278, 1284 (1999). According to Black's Law Dictionary 740 (6th Ed. 1990), a household is a family living together, and the [t]erm 'household' is generally synonymous with 'family'
for insurance purposes, and includes those who dwell together as a family under the same
roof (emphasis added).
Dwelling together under the same roof is only one of the considerations in the analysis for determining whether a person is a resident of a household or family, and courts have repeatedly held that a person may prove that he or she is a member of a household or family even though the person does not live under the same roof as the other members. Most courts begin by examining the intent of the parties:
[T]he controlling factor is the intent, as evinced primarily by the acts, of the person whose residence is questioned. If an absence from a residence is intended to be temporary, it does not constitute an abandonment or forfeiture of the residence.
Because a determination of residency depends on intent, it typically should not be made on a motion for summary judgment.
Farmers Automobile Ins. Assoc. v. Williams, 254 Ill.Dec. 231, 234, 746 N.E.2d 1279, 1282 (2001) (citations omitted).
It is possible to show that a person is a member of a household when the person does not live under the same roof as the other members of the household. Courts have endeavored to list the many factors that can be considered to determine whether someone shares a relationship with the insured so as to be considered a resident of the insured household. These factors collectively point to the common inquiry of whether the insured and others in the household intend for the insured's house to be their place of permanent
residency and reasonably act on that intent. State Farm Mutual Auto. Ins. Co. v.
McCormick, 171 Or.App. 657, 17 P.3d 1083 (Ct.App. 2000).
The courts of Wisconsin have indicated that the controlling test of whether persons are members of a household at a particular time is not solely whether they are then residing together under one roof. Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 36, 197 N.W.2d 783, 788 (1972). In Pamperin, the Wisconsin court indicated that an examination should be made of whether the relative and the named insured are:
(1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship . . . in contracting about such matters as insurance or in their conduct in reliance thereon.
55 Wis.2d at 37, 197 N.W.2d at 788. In accord, A.G. v. Travelers Ins. Co., 112 Wis.2d 18, 21, 331 N.W.2d 643, 645 (Ct.App. 1983). Other courts have noted that this is not a mandatory threefold test and [n]o single factor is the sole or controlling test of whether a person is a resident of a household. Londre v. Continental Western Ins. Co., 117 Wis.2d 54, 58, 343 N.W.2d 128, 130 (1983).
The courts of Minnesota have followed Wisconsin's approach, and considered other factors such as: the age of the person; whether the person establishes a separate residence; the self-sufficiency of the person; the frequency and duration of the person's stay in the family home; and the person's expressed intent to return to the family home. Mutual
Service Cas. Ins. Co. v. Olson, 402 N.W.2d 621 (Minn.App. 1987); Wood v. Mutual Service
Cas. Ins. Co., 415 N.W.2d 748 (Minn.App. 1987). Courts in the State of Washington have
suggested consideration of the expressed intent of the person in question, the formality or
informality of the relationship between that person and the members of the household at
issue, the relative propinquity of the dwelling units, and existence of another place of lodging
for the person in question. General Motors Acceptance Corp. v. Grange Ins. Ass'n, 38
Wash.App. 6, 684 P.2d 744 (1984); Pierce v. Aetna Cas. and Sur. Co., 29 Wash.App. 32, 627
P.2d 152 (1981).
A Colorado court has found the following elements to be important: the subjective or declared intent of the person; the formality or informality of the relationship between the person and the members of the household; the existence of another place of lodging by the alleged resident; and the relative permanence or transient nature of the individual's residence in the insured's home. Iowa Nat'l Mutual Ins. v. Boatright, 33 Colo.App. 124, 516 P.2d 439 (1973). Arizona courts consider similar factors, such as the living arrangements of the person prior to the accident; the person's absence or presence from the insured's home on the date of the occurrence; the reasons or circumstances relating to the absence or presence; and the individual's subjective or declared intent with respect to a place of residence. State Farm Mut. Auto. Ins. Co. v. Johnson, 151 Ariz. 591, 729 P.2d 945 (Ariz.App. 1986); Mid-Century Ins. Co. v. Duzykowski, 131 Ariz. 428, 641 P.2d 1272 (1982).
Accordingly, the circuit court's August 27, 2001 order granting summary
judgment is reversed, and the case is remanded for further proceedings.
Reversed and Remanded.