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IN THE SUPREME COURT
OF APPEALS OF WEST VIRGINIA
January 2005 Term
GLEN FALLS INSURANCE COMPANY
Appellee and Plaintiff Below,
BILLIE JOE SMITH, ROBIN SMITH and JOHNNY COMBS
Appellants and Defendants Below.
GMAC INSURANCE COMPANY
Appellee and Plaintiff Below
Appellant and Defendant Below
Appeal from Circuit Court of Wyoming County
Honorable John S. Hrko, Judge
Civil Action Nos.02-C-257 and 03-C-27
Submitted: February 23, 2005
Filed: July 1, 2005
| Charles B. Mullins, II
Pineville, West Virginia
Attorney for Appellants
| Robert P. Martin
Phillip C. Monroe
Campbell, Woods, Bagley, Emerson,
McNeer & Herndon, P.L.L.C.
Charleston, West Virginia
Attorneys for GMAC Insurance Company
| Rochelle L. Brightwell
Pietragallo, Bosick & Gordon
Weirton, West Virginia
Attorney for Glen Falls Insurance Company
Justice Benjamin delivered the opinion of the Court.
JUSTICE DAVIS concurs and reserves the right to file a separate opinion.
CHIEF JUSTICE ALBRIGHT dissents in part, concurs in part, and reserves the
right to file a separate opinion.
JUSTICE STARCHER dissents in part, concurs in part, and reserves the right
to file a separate opinion.
SYLLABUS BY THE COURT
a homeowners' [or automobile] insurance policy that does not otherwise define
the phrase 'resident of your household,' the phrase means a person who dwells
_ though not necessarily under a common roof _ with other individuals who are
named insureds in a manner and for a sufficient length of time so that they
could be considered to be a family living together. The factors to be considered
in determining whether that standard has been met include, but are not limited
to, the intent of the parties, the formality of the relationship between the
person in question and the other members of the named insureds' household,
the permanence or transient nature of that person's residence therein, the
absence or existence of another place of lodging for that person, and the age
and self-sufficiency of that person. Syllabus Point 3, Farmers Mutual
Insurance Company v. Tucker, 213 W. Va. 16, 576 S.E.2d 261 (2002).
in an insurance policy should be given its plain, ordinary meaning." Syllabus
Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345
S.E.2d 33 (1986).
the language of an insurance policy provision is reasonably susceptible of two
different meanings or is of such doubtful meaning that reasonable minds might
be uncertain or disagree as to its meaning, it is ambiguous. Syllabus Point 1, Prete
Merchants Property Ins. Co. of Indiana, 159 W. Va. 508, 223 S.E.2d 441
(1976). Syllabus Point 5, Hamric v. Doe, 201 W. Va. 615, 499 S.E.2d
. . . provisions of an insurance policy should be construed strictly against
the insurer and liberally in favor of the insured, although such construction
should not be unreasonably applied to contravene the object and plain intent
of the parties. Syllabus Point 2, Marson Coal Co. v. Insurance Co. of State
of Pennsylvania, 158 W. Va. 146, 210 S.E.2d 747 (1974). Syllabus Point
6, Hamric v. Doe, 201 W. Va. 615, 499 S.E.2d 619 (1997).
terms ward and foster child as used in the definition
of family member in an automobile insurance policy are terms which
describe a legally recognized relationship.
consolidated actions are before the Court upon the appeal of the Appellant,
Johnny Combs, defendant below, from the December 18, 2003 order of the Circuit
Court of Wyoming County in Civil Action No. 02-C-257, (See
and in Civil Action No. 03-C-27. (See
By its December 18, 2003 order, the Circuit Court granted
both the motion of the Appellee, Glen Falls Insurance Company (Glen Falls),
plaintiff below, for summary judgment in Civil Action No. 02-C-257 (the
Glen Falls case), and the motion of the Appellee, GMAC Insurance Company
(GMAC), plaintiff below, for summary judgment in Civil Action No.
03-C-27 (the GMAC case).
Glen Falls case, Combs contends that the circuit court erred in determining as
a matter of law that he was neither a ward nor a foster child of
Billie Joe Smith, the named insured in a policy of automobile insurance issued
by Glen Falls. Because of such determination, Combs was not eligible, according
to the terms of the policy, for its underinsured motorist coverage for his injuries
arising out of a single vehicle accident that
occurred on January 29, 2002, involving a truck operated by Jimmy Dale Graham,
in which Combs was a guest passenger.
GMAC case, Combs contends that the circuit court erred in determining as a matter
of law that he was not, on January 29, 2002, a resident of the household of his
biological mother, Leneice Combs, the named insured in an automobile insurance
policy issued by GMAC. Because of such determination, Combs was not eligible,
according to the terms of the policy, for its underinsured motorist coverage
for his injuries arising out of the same January 29, 2002 automobile accident.
Thus, Combs seeks coverage under the underinsured motorist coverage in both the
GMAC and Glen Falls automobile insurance policies for alleged injuries in excess
of the insurance policy limits paid by Jimmy Dale Graham's insurer.
Glen Falls and GMAC, contend that the circuit court did not err in granting both
of them summary judgment in their respective actions, Case Nos. 02-C-257 and
03-C-27. The Court has before it the petition for appeal filed by Johnny Combs
the briefs of the parties, and has heard oral argument from counsel for the Appellant
and Appellees. We conclude that the Circuit Court of Wyoming County did not err
in granting Glen Falls' motion for summary judgment in Case No. 02-C-257 and
did not err in granting GMAC 's motion for summary judgment in Case No. 03-C-27.
We therefore affirm the December 18, 2003 order.
FACTS AND PROCEDURAL BACKGROUND
January 29, 2002, the Appellant, Johnny Combs, was injured in a single vehicle
accident while riding as a guest passenger in a truck operated by Jimmy Graham. (See
Combs sustained various physical injuries in this accident,
including permanent facial scarring and the loss of several teeth, and incurred
approximately $18,928.47 in medical expenses. He settled with Mr. Graham's
liability carrier for the $20,000 policy limits of its coverage. Additionally,
he asserted underinsured motorist claims against GMAC and Glen Falls contending
(1) that he was a resident of the household of his mother, Leneice Combs, at
the time of the January 29, 2002 accident and, therefore, qualified for underinsured
motorist coverage for his injuries under a policy of insurance issued by GMAC
to his mother, the named insured; and (2) that he was also a ward or foster
child of Billie Joe Smith and a resident of Mr. Smith's household (which
was separate from that of his mother's household) and was actually residing
therein at the time of the accident, thus also qualifying for underinsured
motorist coverage under a policy of insurance issued by Glen Falls to Billie
Joe Smith, the named insured.
A. The GMAC Policy
terms, Leneice Combs' GMAC policy required Appellant Combs to have been a
resident of [her] household at the time of the accident in order to be
included in its underinsured motorist coverage. Believing that Combs did not
qualify as a resident of his mother's household, GMAC instituted a declaratory
judgment action in the Circuit Court of Wyoming County seeking a declaration
as to whether or not Appellant Combs qualified as an insured under Leneice Combs'
insurance policy. Following the filing of a counter-claim by Appellant Combs,
the filing of answers to both the original complaint and the counter-claim, and
discovery, GMAC filed a motion for summary judgment, to which Appellant filed
no response. The motion was granted by the court in an order entered on December
18, 2003, from which Combs appeals to this Court. In its order, the court found "that
the facts presented do not support a finding that Johnny Combs was a resident
of his mother's household."
B. The Glen Falls Policy
time of the accident at issue, Combs was twenty-two years old and was living
with Billie Joe Smith at his home in Lynco, West Virginia. (See
Billie Joe Smith was married to Leneice Combs, Appellant
Combs' biological mother, from July 1967 until they divorced in July 1978. Thereafter,
Leneice Combs married Clark Combs and Appellant was born of that marriage. Leneice
and Clark Combs divorced in 1980, remarried and divorced again in 1983. After
the second divorce, Leneice Combs and Billie Joe Smith reestablished their relationship,
but did not re-marry. (See
Billie Joe Smith apparently provided emotional and financial
support to Appellant Combs and held him out as a son. Although Appellant Combs
refers to Mr. Smith as dad, there is no evidence on the record before
this Court and no argument has been made, that Billie Joe Smith is Comb's biological
father. Further, no argument has been made nor evidence produced that Mr. Smith
ever legally adopted Combs or formally accepted legal responsibility for him
via guardianship papers or otherwise.
about January 29, 2002, Glen Falls issued an automobile insurance policy, having
a policy period of January 22, 2002 through January 22, 2003, to Billie Joe Smith.
Appellant Combs was not a named driver or an additional insured under this policy.
Nevertheless, Combs asserts a claim for underinsured motorist benefits under
this policy for injuries sustained in the January 29, 2002 automobile accident
arguing that Mr. Smith was his father.
Falls policy defines Covered Person for the purposes of underinsured
motorist coverage as:
for the ownership, maintenance or use of any vehicle, except for occupying, or
when struck by, a vehicle owned by you which is not insured for this coverage
under this policy;
Who does not own an automobile for the maintenance or use of any vehicle;
Who owns an automobile but only for the use of an insured motor vehicle;
while occupying or when struck by, a vehicle owned by you or that person which
is not insured for this coverage under this policy.
(Emphasis in original). The term family member is defined as:
Member means a person related to you by blood, marriage or adoption who is a
resident of your household. This includes a ward or foster child.
the purposes of this definition, to be considered a resident of your household
when evaluating coverage for a loss a person must have been actually residing
in your household on the date the loss occurred. However, your:
the United States military or away at school will be considered a resident of
your household unless he or she has demonstrated an intent to reside elsewhere
about December 4, 2002, Glen Falls instituted a declaratory judgment action seeking
a declaration that Combs' claim for underinsured motorists benefits was not covered
under the terms of the policy issued to Billie Joe Smith. An amended complaint
for declaratory relief was filed on or about April 9, 2003 seeking substantially
the same relief. After discovery, Glen Falls filed a motion for summary judgment
seeking a declaration that coverage did not exist under its policy because Appellant
Combs was not a family member as defined by the policy terms. Following
briefing by the parties, oral argument was held before the circuit court on October
3, 2003. By Order dated December 18, 2003, the circuit court granted Glen Falls'
motion for summary judgment finding that Combs did not qualify as either a ward or foster
child of Billie Joe Smith. The circuit court found that the term
'ward' implies a guardian-ward relationship created by legal process, such as
in W. Va. Code § 44A-1-2," and that West Virginia law does
not support a finding that Johnny Combs qualifies as Billie Joe Smith's foster
child. Appellant Combs now appeals the circuit court's ruling to this
Standard of Review
appeal arises from the entry of summary judgment in favor of two separate insurance
companies finding that coverage does not exist for Appellant Combs' claims under
the underinsured motorist provisions of either individual policy. We review a
circuit court's order granting summary judgment de novo. Syl. Pt. 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;
namely, 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." Syl. Pt. 3, Aetna Casualty & Surety Co. v. Federal Ins.
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,
in this case, the Appellant. Painter, 192 W. Va. at 192, 451 S.E.2d at
ruling of the circuit court presents a question of the proper coverage under
an insurance contract. We have previously recognized that the "[d]etermination
of the proper coverage of an insurance contract when the facts are not in dispute
is a question of law." Syl. Pt. 1, Tennant v. Smallwood, 211 W. Va.
703, 568 S.E.2d 10 (2002). Likewise, "[t]he interpretation of an insurance
contract, including the question of whether the contract is ambiguous, is a legal
determination that, like a lower court's grant of summary judgement, shall be
reviewed de novo on appeal." Syl. Pt. 2, Riffe v. Home Finders Associates,
Inc., 205 W. Va. 216, 517 S.E.2d 313 (1999).
A. The GMAC Case
Point 3 of Farmers Mutual Insurance Company v. Tucker
, 213 W. Va. 16,
576 S.E.2d 261 (2002), this Court held:
a homeowners' insurance policy that does not otherwise define the phrase resident
of your household, the phrase means a person who dwells _ though not necessarily
under a common roof _ with other individuals who are named insureds in a manner
and for a sufficient length of time so that they could be considered to be a
family living together. The factors to be considered in determining whether that
standard has been met include, but are not limited to, the intent of the parties,
the formality of the relationship between the person in question and
the other members of the named insureds' household, the permanence or transient
nature of that person's residence therein, the absence or existence of another
place of lodging for that person, and the age and self-sufficiency of that
The meaning of the phrase "resident of your household," if not otherwise
defined, would be the same when used in an automobile policy as it is when
used in a homeowners' liability policy. Thus, for Appellant Combs to have been
a resident of Leneice Combs' household on the date of the accident (January
29, 2002) for which he sought underinsured motorist coverage under her GMAC
insurance policy, he must, under the foregoing meaning of the phrase, have,
prior to and on that date, dwelt with Leneice Combs in her household "for
a sufficient length of time so that [the two of them] could be considered to
be a family living together."
Court in Farmers Mutual
set forth five non-inclusive factors, quoted above,
which are to be considered in determining whether Johnny Combs had met that standard.
The circuit court considered these factors in its December 18, 2003, order and,
in granting GMAC's motion for summary judgment, concluded:
the instant case, the parties, Leneice and Johnny Combs, both indicated that
they considered Johnny Combs primary residence to be with Billie Joe Smith; Johnny
Combs was past the age of majority; he had no specific living quarters at his
mother's residence; only a few of his belongings were stored at his mother's
home and that was primarily for his convenience on those occasions when he spent
the night; he
regularly visited without staying overnight; he looked to Billie Joe Smith
for money when he was unemployed; and, although he was a somewhat frequent
overnight guest at his mother's home, his stays could best be described as
transient and sporadic.
proceeding with a consideration of the Farmers Mutual
factors in the GMAC
case, it should be noted that in order for Combs to have qualified for underinsured
motorist coverage under the Glen Falls insurance policy to Billie Joe Smith,
he must, among other requirements, have also been "a resident of [Billie
Joe Smith's] household" and have been "actually residing in [Billie
Joe Smith's] household on the date the loss occurred" meaning, according
to Farmers Mutual
, that Combs had to have dwelt with Billie Joe Smith
in his household "for a sufficient length of time so that [the two of them]
could be considered to be a family living together" on the date the loss
occurred. (See footnote 6)
first factor is obviously a most significant one. Did Combs intend that his dwelling
be with his mother on January 29, 2002, and did she, in turn, intend that her
dwelling be his so that they considered themselves to be a family living together?
In Farmers Mutual
, this court observed that "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." Farmers Mutual
, 213 W. Va. at 25,
576 S.E.2d at 70. While that may often be the typical case, it is not the case
here because Combs and his mother made their mutual intent amply clear during
testimony: On and preceding January 29, 2002, Combs "dwell[ed] with" (using
the language found in Farmers Mutual
) Billie Joe Smith, the man who
raised him and with whom he, at the age of twenty-two, continued to reside
on and prior to that date. (See
Smith testified that Combs lived at his home 20 to
25 days out of the month, and that the rest of the time Combs stayed with different
people, including his brother, his sisters, his friends, and his mother. Smith
also testified that at the time of the truck accident on January 29, 2002,
he, his mother, and Combs were living together in the Smith home in Lynco,
Combs' testimony confirms his residence with Smith, not his mother, on and before
January 29, 2002. About the Smith home, Combs was asked, "Is that basically
where you considered your home to be?" He replied in the affirmative. Appellant
testified that he lived with Smith, not his mother, prior to the accident and
only stayed with his mother occasionally.
deposition, Leneice Combs likewise related that she considered Appellant Combs
to be living primarily with Billie Joe Smith, and that she considered Smith's
home to be her son's home. She further testified that Appellant lived with Smith
in January, 2002, and had done so for most of his life; that he had no set schedule
for visiting her; that he visited her more often than he stayed overnight; and
that, in her opinion, he had been living with Smith since he, Combs, had been
eight or ten years old.
upon the definitive deposition responses, we find that there was no genuine issue
as to Appellant Combs' and Leneice Combs' "intent" with respect to
where Appellant dwell[ed] on and prior to the truck accident on January
29, 2002. They both believed that Appellant "dwell[ed] with" Billie
Joe Smith, and was a resident of his household.
The remaining Farmers
factors are undisputed and are likewise definitive that Appellant
combs did not reside with his mother. There was no formality to their relationship
in Leneice Combs' residence. As Ms. Combs' testified, Appellant Combs pops
in and out. Thus, Appellant Combs' presence in Leneice Comb's residence
was, at best, of a transient nature. As previously considered, Appellant,
his mother, Leneice
Combs, and Billie Joe Smith all acknowledged that a place of lodging other
than his mother's existed for Combs. All evidence of record conclusively confirms
that it was Smith's residence where Combs had dwelled and made his home from
the age of eight or ten until the date of their depositions. Finally, Combs
was twenty-two years old at the time of the January 2002 truck accident. Combs
was either self-sufficient or depended upon Billie Joe Smith for financial
assistance from time to time. There was no evidence that Combs' mother provided
him with any financial help.
it is clear from the foregoing that Appellant Combs "dwelled with and "under
the same roof" as Billie Joe Smith on and prior to the date of the truck
accident on January 29, 2002, and that he was, therefore, a resident of Billie
Joe Smith's household on and prior to that date, according to this Court's holdings
in Spangler v. Armstrong
, 201 W. Va. 643, 499 S.E.2d 865 (1997) (per curium)
and Farmers Mutual
. Based upon the evidence outlined above, the granting
of summary judgment in favor of GMAC was appropriate in this case. We therefore
affirm that order.
B. The Glen Falls Policy
Combs also argues that the circuit court erred in holding that he did not qualify
as either a ward or a foster child under the terms
of the Glen Falls policy issued to Billie Joe Smith. Arguing that the terms
are ambiguous, Combs claims underinsured motorist coverage should be provided.
In support of this position, Combs
argues that he always considered Billie Joe Smith to be his father and that
Billie Joe Smith has always treated him as a son. Conversely, Glen Falls argues
that both the term ward and the term foster child are
terms which refer to legally recognized relationships and that the circuit
court did not err in finding that Johnny Combs did not have a legally recognized
relationship with Billie Joe Smith so as to qualify as a family member under
the terms of the Glen Falls policy. For the reasons set forth below, we agree
with the circuit court and Glen Falls.
long held that [l]anguage in an insurance policy should be given its plain,
ordinary meaning." Syl. Pt. 1, Soliva v. Shand, Morahan & Co., Inc.
176 W. Va. 430, 345 S.E.2d 33 (1986), overruled, in part, by National Mut.
Ins. Co. v. McMahon & Sons, Inc.
, 177 W. Va. 734, 356 S.E.2d 488 (1987);
Syl. Pt. 2, Russell v. State Automobile Mutual Insurance Co.,
188 W. Va.
81, 422 S.E.2d 803 (1992); Syl. pt. 2, American States Ins. Co. v. Tanner,
W. Va. 160, 563 S.E.2d 825 (2002). Moreover, [w]here the provisions in
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." Syl. Pt. 3, Soliva, quoting,
Syl. Pt. 1,
Christopher v. United States Life Ins.,
145 W. Va. 707, 116 S.E.2d 864 (1960).
Where, however, the policy language under consideration is ambiguous, the policy
should be liberally construed in favor of the insured although such construction
should not be unreasonably applied to contravene the object and plain intent
of the parties. Syl. Pt. 6, Hamric v. Doe
, 201 W. Va. 615, 499 S.E.2d
619 (1997), quoting
Pt. 2, Marson Coal Co. v. Insurance Co. of State of Pennsylvania
W. Va. 146, 210 S.E.2d 747 (1974). To be ambiguous, the policy provision must
be reasonably susceptible
of two different meanings or [be] of such
that reasonable minds might be uncertain or disagree
as to its meaning
. Syl. Pt. 5, Hamric
, quoting Prete
v. Merchants Property Ins. Co. of Indiana
, 159 W. Va. 508, 223 S.E.2d 441
(1976)(emphasis added). A contract of insurance should never be interpreted
to create an absurd result, but should instead receive a reasonable interpretation. Soliva
176 W.Va. at 432, 345 S.E.2d at 35. The standard is that of what a reasonable
person standing in the shoes of the insured would expect the language to mean. Id.
433, at 35-36. It is the opinion of this Court that a twenty-two year old man,
such as Appellant who has a history of adult gainful employment, cannot reasonably
be considered a ward or foster child of another under
the law of this State, particularly where there has never been a legally recognized
relationship with the purported parent or guardian.
to qualify for underinsured motorist coverage under the Glen Falls policy, Johnny
Combs must be both a family member of Billie Joe Smith and a resident of
his household. The policy defines family member as a person
related to you by blood, marriage or adoption who is a resident of your household.
This includes a ward or foster child. Because we find Johnny Combs is not
a family member of Billie Joe Smith since he is not related to Billie
Joe Smith by marriage or adoption and, furthermore, cannot be deemed a ward or foster
child under West Virginia law, Combs' residence in Billie Joe
Smith's household is, by itself, insufficient for Smith's coverage with Glen
Falls to be extended to Combs.
policy language at issue in this appeal is the Glen Falls policy definition of family
member. Combs does not contend that he is related to Smith by blood, marriage
or adoption. Instead, he contends that he qualifies as a ward or foster
child under the policy definition. At least three courts have analyzed
similar definitions and found that, due to the context in which they are used,
the terms ward and foster child refer to relationships
recognized by law. See, Matthews v. Penn-America Ins. Co.
, 25 P.3d 451,
454 (Wash. Ct. App. 2001)(finding specific references to spouse, ward or foster
child strongly point to the traditional family definition _ those connected by
blood or law and holding policy only provides coverage for those related to the
policy holder by blood, affinity or law) (See
; Virginia Farm Bureau Mut. Ins. Co. v. Gile
S.E.2d 642, 645 (Va. 2000)(holding term foster child as used in definition
of the policy definition of relative unambiguously
refers to a relationship recognized by law based upon context in which the
term is used) (See footnote
; Pisani v. Travelers Ins. Co.
, 560 N.E.2d 155, 156 (Mass.
Ct. 1990)(finding [t]he word 'includes' relates back to the words 'by
blood, marriage or adoption.' The latter words connote legal bonds rather than
[an] informal status). (See
As noted by the Court of Appeals of Washington in Matthews
If "context" means
all the possible dictionary definitions, it is meaningless. To be meaningful,
context must refer to the context of Penn-America's policy. Thus, we consider
all appropriate dictionary meanings of "family" and then look to the
words and phrases surrounding "family" in Penn-America's policy to
guide us to the meaning of "family" in that context. And this requires
us to consider the limiting effect of Penn America's use of "spouse," "ward," and "foster
, 25 P.3d at 454. Defining a term in an insurance policy with
reference to the context in which it is used is consistent with West Virginia
law which requires that a policy be read as a whole, giving meaning to each
, 176 W. Va. at 432, 345 S.E.2d at 35. We find the analysis
utilized by these courts to be persuasive and thus, hold the terms
ward and foster child as used in the context of the definition
of family member in an automobile insurance policy are terms which
describe a legally recognized relationship.
found that the terms ward and foster child as used in
the definition of the term family member describe legally recognized
relationships, we must determine whether Johnny Combs' relationship with Billie
Joe Smith is a legally recognized ward or foster child relationship
under West Virginia law. West Virginia statutory law recognizes two types of
guardian-ward relationships. First, a guardian may be appointed for a minor via
a testamentary appointment by the minor's parent or by the circuit court or family
court of the county in which the minor resides or in which the minor has an estate,
if such appointment is in the minor's best interest. W. Va. Code 44-10-1
(1923); W. Va. Code 44- 10-3 (2004). A minor is defined, under West Virginia
law, as a person under the age of eighteen years. W. Va. Code 2-2-10(aa)(1998).
Secondly, a guardian may be appointed for a protected person, defined
as an adult individual, eighteen years of age or older, who has been found
by a court, because of mental impairment, . . . W. Va. Code 44A-1-2
(1994). As Combs was over the age of eighteen at the time of the accident at
issue, he could not qualify as a ward unless he is also a protected person. There
is no evidence before this Court that Combs has been adjudicated to be a protected
person for whom Billie Joe Smith
has been appointed as guardian. Therefore, Combs cannot reasonably be considered
a ward of Billie Joe Smith under the terms of the Glen Falls policy. (See
problematic is the determination as to whether Combs, a twenty-two year old man
who has a history of gainful employment, may reasonable be considered to be Billie
Joe Smith's foster child. Combs argues that in today's society, the
term foster child should not be limited to those individuals formally
placed by the State in another's home, but should include persons who are cared
for and supported by persons other than their natural parent regardless of age.
In support of this argument, Combs quotes at length the opinions in Sigel
v. New Jersey Mfr. Ins. Co.
, 745 A.2d 602 (N.J. Super. Ct. App. Div. 2000),
and United Services Auto. Assoc. v. Gambino
, 443 S.E.2d 368 (N.C. Ct.
App 1994). (See footnote
The first of these two cases is readily distinguishable. In Sigel
the New Jersey court was presented with the question as to whether the term related
by marriage within the definition of family member encompassed
, 745 A.2d at 603. Therein, the court held
that the term related by marriage encompasses step-siblings and
that there was no need to add economic dependence as a required criterion. Id.
did not involve the question of whether a person constitutes
a foster child.
closely on point is the decision in Gambino
, wherein the court found a
question of fact existed as to whether the claimant constituted a foster
child of an insured, thereby precluding summary judgment in favor of the
, 443 S.E.2d at 372. The alleged foster child in Gambino
a nineteen year old college student who had lived with the insured since before
his high school graduation, who returned to the insureds' home during school
breaks and who received food and spending money from the insureds, in addition
to utilizing the insureds' family vehicle. Id.
at 370. The court in Gambino
the term foster child referred to a sociological relationship independent
of a person's age and means a person whose upbringing, care and support
has been provided by someone not related by blood or legal ties and who has reared
the person as his or her own child. Id.
at 371-2. The court did
not, however, examine the term foster child in the context of the
remaining terms in the definition of family member, recognizing,
as we have, that each refers to a legally recognized relationship. (See
Instead, the court took the term out of context
and, looking to dictionary definitions, adopted a definition which is not a
legally recognized relationship.
if it were applicable, we decline the invitation to follow the Gambino (See
decision. The context in which the term foster
child is used in the Glen Falls policy is determinative of its meaning.
This Court is more persuaded by the ample case law viewing the term in context
and considering both the existence of a legally recognized relationship and the foster
child's age. See, e.g., Virginia Farm Bureau Mut. Ins. Co. v.
, 524 S.E.2d 642, 645 (Va. 2000)(looking to Virginia statutory law to
determine scope of foster
relationship); Wheeler v. Rocky Mtn. Fire & Cas. Co.
, 103 P.3d 240,
243 (Wash. Ct. App. 2004)(finding reasonable meaning for a foster child
means a child under the age of 18"); Congdon v. Automobile Club Ins.
, 816 A.2d 504, 507 (Vt. 2002)(holding, in light of statutes governing
placement of foster children, the term foster child in automobile
policy reasonable refers to child under the age of majority).
Virginia statutory law also provides guidance as to whether Appellant Combs may
reasonably, legally be considered a foster child. Although, the West
Virginia Code does not define the term foster child, it repeatedly
defines child, infant and minor in the same
manner - a person under the age of eighteen years. (See
footnote 15) See
, W. Va. Code 2-2-10(aa)
(1998)(rules for construction of statutes); W. Va. Code 48-10-202 (2001)(Grandparent
Visitation); W. Va. Code 48-20-102(b)(2001)(Uniform Child Custody Jurisdiction
and Enforcement Act); W. Va. Code 49-1-2 (1999)(child welfare statutes); W. Va. Code 49-2A-1 (1975)(Interstate Compact on the Placement of Children)(defining child as person
who, by reason of minority, is legally subject to parental, guardianship or
similar control); W. Va. Code 49-2B-2(f) (2001)(outlining duties
of commissioner of human services for child welfare); W. Va. Code 49-5-1
(1998)(juvenile proceedings); W. Va. Code 49-9-2 (1997)(Missing Children
Information Act); W. Va. Code 61-8D-1 (1988)(child abuse). Considering
these statutory definitions of the term child in light of West
Virginia's child welfare statutes governing the placement of children with
foster parents or in foster homes, W. Va . Code 49-1-1, et seq
this Court concludes the term foster child refers to a person,
under the age of eighteen years, who has been entrusted to the care of a person
other than a biological parent or legal guardian, by a state agency. As Johnny
Combs was twenty-two years of age at the time of the accident in question,
he does not, by definition, qualify as a foster child of Billie
Joe Smith. Moreover, even if Johnny Combs had been under the age of eighteen
at the time of the accident, he was not involved in a legally recognized relationship
with Billie Joe Smith pursuant to which he could legally be recognized as Billie
Joe Smith's foster child. As such, the circuit court did not err in finding
that Combs was not entitled to coverage under the underinsured motorist benefits
of the Glen Falls policy.
the foregoing reasons, we affirm the judgment of the Circuit Court of Wyoming
County. Appellant Johnny Combs can not reasonably be considered to be a resident of
his mother's household so as to qualify for underinsured motorist benefits
under the policy of insurance issued by GMAC. Likewise, Appellant Combs cannot
reasonably be considered to be a ward or foster child of
Billie Joe Smith so as to qualify for underinsured motorists benefits under
the Glen Falls policy of insurance because Appellant Combs' relationship with
Billie Joe Smith did not rise to the level of a legally recognized ward or foster
Joe Smith and Robin Smith were also defendants below; however, they did not
join Johnny Combs in the Petition for Appeal of the Circuit Court's Order and
have not appeared as Appellants before this Court.
two civil actions were consolidated by the Circuit Court of Wyoming County
in an agreed order entered on or about April 22, 2003.
was actually involved in two separate motor vehicle accidents: January 29,
2002 and April 26, 2002. In the later accident, Appellant was a passenger in
a vehicle driven by Robin Smith who was insured under the same Glen Falls policy.
Appellant filed a claim against the driver of the other vehicle in the April
26, 2002 accident. That claim was settled by the other driver's insurer for
less than policy limits. Accordingly, Appellant now has no claims against either
GMAC or Glen Falls for the April 26, 2002 accident.
appears from the record that Appellant Combs lived almost continuously with
Billie Joe Smith from the time Appellant was eight or ten years old. Upon turning
eighteen, Appellant lived outside of the State of West Virginia for some period
of time in connection with his employment.
record is not clear if Leneice Combs and Billie Joe Smith resided together
upon resuming their relationship or, if so, when they ceased co-habitation.
While Glen Falls
challenged Comb's qualification for underinsured motorist coverage under its
policy with Billie Joe Smith on the grounds that he was neither a "ward" nor
a "foster child" of Smith, Glen Falls did not challenge Appellant'
residency in Billie Joe Smiths' household.
is neither the biological nor the adopted son of Billie Joe Smith. In his deposition,
Combs referred to Billie Joe Smith as his "daddy." When asked why
it was that Combs called Smith his daddy, Smith replied in his
deposition, "Well, he sort of adopted me." Smith further related
that Combs commenced living with him when he was around eight or ten years
of age and that the relationship had continued, at least until the date of
Smith's deposition, March 25, 2003. Smith stated that the reason Combs started
living with him at the age of eight or ten was because "[h]e just wanted
to stay with me and I couldn't deny him the right." Smith was asked, "Do
you consider [your home] to be his [Combs'] home? Smith replied "Yes,
policy at issue in Matthews
provided underinsured motorist coverage
for the person named in the policy, who was described as [y]ou, your,
yourself means the person named on the Declarations page and includes the spouse
if a resident of the same household. This also means a member of the family
who is a resident of the household and includes a ward or foster child. Matthews
25 P.3d at 452. The terms family and member of the family were
not defined in the policy. Id.
at 453. The court concluded that, in
the context of the policy, the average insured would read family in
the traditional sense, that is connected by blood, affinity or law. Id.
policy defined the term relative as a person related to the
named insured by blood, marriage or adoption, including a ward or foster child,
who is a resident of the same household. Gile
, 524 S.E.2d at 645.
While the court looked to Virginia statutory law in determining the meaning
of the term foster child when determining the scope of the term
for the purpose of underinsured motorist coverage, it looked to the context
in which the term is used in determining the scope of medical benefits coverage. Id.
policy at issue defined the term household member as anyone
living in your [i.e., that of the named insured] household who is related to
you by blood, marriage or adoption. This includes wards or foster children. Pisani
560 N.E.2d at 155-6.
Court is not currently presented with a situation wherein the guardianship
of a minor child has been transferred to another by the minor's biological
parent by execution of a verified or notarized document, though not court approved.
Therefore, the Court reserves for another day an opinion as to whether, in
such a circumstance, the minor would qualify as a ward for purposes
of the guardian's automobile insurance policy.
opinions quoted were, in essence, set forth in their entirety in Appellant's
brief, as Appellant's argument without acknowledgment that the language therein
derive from a published opinion. The Court takes this opportunity to remind
parties that extensive quotes of court opinions used in support of a party's
position should be clearly identified as a quote, including the use of the
Court in Gambino
did, however, rely upon the decision in Joseph v.
Utah Home Fire Ins. Co.,
835 P.2d 885 (Ore. 1992), which rejected the legal
relationship analysis, finding that the term foster child was ambiguous
in the context in which it was used. Joseph
, 835 P.3d 886-87. At issue
was whether personal injury protection coverage and uninsured motorist coverage
were available to a six-year old child living with her mother and the insured
under the insured's policy. Id.
at 885-86. The definition of relative in
Personal Injury Protection section of the policy was slightly different than
the general definition of family member utilized for uninsured
motorists coverage. The Personal Injury Protection definition included the
phrase related to the named insured by . . .adoption (including a ward
or foster child). The general definition of family member stated related
to you by blood, marriage or adoption. . . . This includes a ward or foster
at 886. The court noted that the term foster
child was grammatically related to the term adoption [in
the Personal Injury Protection definition] and, as the definition of foster
child specifies that a foster child is not related to the foster parent
by adoption an ambiguity is created. Id.
Moreover, the court in Joseph
limited its holding to construing the term under this policy
no opinion as to the meaning of foster child in any other context. Id.
899 (emphasis in original). The ambiguity noted in Joseph
is not created
by the context in which the term is used in the Glen Falls policy at issue.
adopt the reasoning employed by Gambino
and urged by Combs would require
this Court accord legal recognition to all types of de facto familial
relationships, be it adult-child type relationships, common law marriages,
or roommates who consider themselves to be like siblings. Where the legislature
has not conferred legal recognition on a de facto
Court will likewise refuse to confer such legal recognition in determining
the scope of available insurance coverage. See, W. Va. Code §48-5-707
(2001) (reduction or termination of spousal support because of de facto
footnote 10 of Martin v. Randolph County Bd. of Educ., 195 W.Va. 297,
465 S.E.2d 399 (1995) we noted, [a] canon of statutory construction
called noscitur a sociis, which holds that a word is known by the company
it keeps, is pertinent here. Babbitt v. Sweet Home Chapter of Communities
for a Great Oregon, 515U.S. 687, 115 S.Ct. 2407, 2411, 132 L.Ed.2d 597,
613 (1995); Darlington v. Mangum, 192 W.Va. 112, 450 S.E.2d 809 (1994); Banner
Printing Co. v. Bykota Corp., 182 W.Va. 488, 388 S.E.2d 844 (1989); Wolfe
v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975). The fact that several items
in a list share an attribute counsels in favor of interpreting the other items
as possessing that attribute as well. Martin v. Randolph County Bd.
of Educ., 195 W.Va. 297, 311, 465 S.E.2d 399, 413 (1995). Though the doctrine
of noscitur a sociis generally is invoked in interpreting words contained
in a single statute, we believe its principles may here be invoked to recognize
that where the Legislature consistently defines a term in a certain manner
throughout the West Virginia Code, the term should receive a consistent interpretation
where it has not otherwise been defined.