Countryside Cas. Co. v. McCormick

• Citation: 722 S.W.2d 655
• Decision Date: 21 January 1987
• Docket Number: No. 14441,14441
• Parties: COUNTRYSIDE CASUALTY COMPANY, an Insurance Corporation, Plaintiff-Appellant, v. Billy Don McCORMICK, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 655

722 S.W.2d 655

COUNTRYSIDE CASUALTY COMPANY, an Insurance Corporation, Plaintiff-Appellant, v. Billy Don McCORMICK, Defendant-Respondent.

No. 14441.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 21, 1987.

John R. Fowlkes, Caruthersville, for plaintiff-appellant.

Michael R. Baker, Columbia, for defendant-respondent.

FLANIGAN, Judge.

Plaintiff Countryside Casualty Company brought this declaratory judgment action against defendant Billy Don McCormick, the father of Briah Dawn McCormick who was five years old when she was fatally injured on April 8, 1979, as a result of an automobile accident which occurred on that date. The accident took place near Steele in Pemiscot County. At the time of the accident Briah was a passenger in an uninsured vehicle operated by Ronald Sweat. Another passenger in that vehicle was Cathy McCormick Sweat, Briah's mother, who married Ronald Sweat after she divorced defendant.

The issue is whether defendant, by reason of Briah's death, is entitled to benefits under the "uninsured motorist insurance" provision of an automobile liability policy issued to him by plaintiff. Resolution of the issue depends, in turn, on whether Briah was "a relative" of Billy Don McCormick, who was the named insured.

As applicable here, the policy defined "relative" as "a person related to the named insured ... by blood ... and who is a resident of and actually living in the same household as the named insured...." The trial court, sitting without a jury, found that Briah was "a relative" and therefore was an insured under the uninsured motorist provision of the policy.

Plaintiff's sole point is that the trial court's finding that Briah "was a resident of and actually living in the same household as defendant father at the time of her death" was against the weight of the evidence, "in that Briah was within the legal custody and actually and physically (living?) with her mother at the time of the fatal accident and hence not an insured under the policy." Both sides have filed excellent briefs addressing plaintiff's point.

The evidence consisted of certain stipulated facts and the testimony of defendant Billy Don McCormick and his present wife Jackie Pace McCormick.

The marriage of defendant Billy Don McCormick and Cathy McCormick was dissolved by a decree of the Circuit Court of Dunklin County on July 23, 1975. By the terms of that decree Cathy McCormick was awarded custody of Briah, subject to the reasonable rights of visitation of Billy Don McCormick, who was ordered to pay $25 weekly as child support.

Billy Don McCormick married Jackie Pace on October 31, 1978. The record does not show the date of Cathy McCormick's marriage to Ronald Sweat but apparently it was "in late 1978."

Jackie Pace McCormick testified that on the date of the accident, April 8, 1979, Cathy and Ronald Sweat lived in Steele. They had previously lived in Blytheville, Arkansas. While they lived in Blytheville, Briah "came and spent time" in Billy Don McCormick's home. At that time Billy Don lived in Kennett with his parents. Billy Don moved away from his parents' home when he married Jackie.

Jackie testified: "I don't know how many times Briah came to our quarters since we have been married. Briah would spend the weekend and once, when we were first married, Briah spent a week with us. A few times during the summer (sic) when people wanted to take a vacation Briah would spend a few weeks with us while her mother was taking a vacation. Briah and her father got along quite well. They had a good relationship."

Billy Don testified that he had been living in Kennett since the middle of 1979 and prior to that had lived in various other locations in Kennett where his parents lived. Immediately after his divorce from Cathy, Cathy lived in Steele, about 25 miles from Kennett, and later moved to Blytheville until she married Ronald Sweat, at which time they moved back to Steele. "At the time of Briah's death my child support was fully paid up. During the time Cathy lived in Blytheville, Briah came very regularly to spend the night at my house. We were very prompt about our every other week intervals. Cathy and I had more or less the understanding that I would have alternate weekends. During Cathy's courtship with Ronnie, I took more control over Briah to give Cathy and him time to establish a relationship." He further testified that he had a two-bedroom home and that when Briah stayed with him Briah had her own bedroom.

McCormick also testified: "I feel that Briah was as much a part of mine (household?) as she was Cathy's and Briah was with me as much or more than she was with Cathy." He testified that Briah spent "as much time in my residence as she did in Cathy's residence."

The following testimony was elicited from McCormick:

"Q. Did Briah keep any permanent clothing at your house?

A. She had her own clothes, her own toys, things of that nature, that she kept in Kennett, Missouri, in my or my mother's possession, whichever place I had residence at. She had her own separate--there was no dragging back and forth. She had her own separate wardrobe.

Q. She didn't have to pack any things to bring with her for your weekend custody?

A. Just her favorite things she liked to sleep in or things she liked to play with. That's the only thing that was transacted."

One commentator has said:

"Separations and marriage dissolutions often pose difficult problems in regard to determining whether a child is still residing with a named insured for purposes of the uninsured motorist coverage. When the breakdown of the marital relationship has led to the establishment of separate residence for the spouses, judges generally view the determination of whether a child is a resident of the same household as the named insured as a question of fact.

* * *

When a separation is clearly permanent, the courts almost always examine the circumstances with a view to evaluating whether the nature of the relationship between the injured child and the non-resident parent at the time of the accident justifies an extension of coverage. The most significant factor in determining the residence of the child is a judicial determination awarding custody. Even when custody has been awarded, however, a child may still be deemed an insured under the other parent's insurance if the insured parent can show either (1) that there are periods of residence with both parents or (2) that the non-resident parent provides substantial support of the child and the home where the child resides. Evidence of either of these factors may be sufficient to warrant the determination that a child continues to be a resident of the insured parent's household."

Widiss, Uninsured and Underinsured Motorist Insurance, Second Ed., Vol. 1, § 4.13.

In some factual situations a child of separated or divorced parents has been held to be a resident, for insurance purposes, of the same household as the named insured-parent, although at least some of the time the child resided in the household of the other parent. Wainscott v. Ossenkop, 633 P.2d 237 (Alaska 1981); Cal-Farm Insurance Company v. Boisseranc, 151 Cal.App.2d 775, 312 P.2d 401 (1957); Butler v. MFA Mut. Ins. Co., 356 So.2d 1129 (La.App.1978); Fidelity General Insurance Company v. Ripley, 228 So.2d 238 (La.App.1969); Miller v. United States Fidelity and Guaranty Co., 127 N.J.Super. 37, 316 A.2d 51 (1974); Allstate Insurance Company v. Luna, 36 A.D.2d 622, 319 N.Y.S.2d 139 (1971); Davis v. Md. Cas. Co., 76 N.C.App. 102, 331 S.E.2d 744 (1985); Hartford Cas. Ins. Co. v. Phillips, 575 S.W.2d 62 (Tex.Civ.App.1978). On the other hand, coverage has been denied in situations where the facts were insufficient to support a finding that the child was a member of the household of a named insured-parent. Gulf American Fire & Cas. Co. v. Azar, 364 So.2d 332 (Ala.Civ.App.1978); Griffith v. Security Ins. Co. of Hartford, 167 Conn. 450, 356 A.2d 94 (1975); Cavalier Insurance Corp. v. Bailey, 292 So.2d 67 (Fla.App.1974); Kemp v. State Farm Fire & Cas. Co., 442 So.2d 642 (La.App.1983); Bearden v. Rucker, 418 So.2d 713 (La.App.1982); Ursin v. Oubre, 343 So.2d 1189 (La.App.1977); Chapman v. Allstate Insurance Company, 306 So.2d 414 (La.App.1975); Pierce v. Aetna Cas. & Sur. Co., 29 Wash.App. 32, 627 P.2d 152 (1981); Londre v. Cont. West. Ins. Co., 117 Wis.2d 54, 343 N.W.2d 128 (Wisc.App.1983). ¹

Some of the foregoing authorities have stated that "resident" and "household" are not terms having an absolute definition. Cal-Farm Insurance Company v. Boisseranc, supra; Miller v. United States Fidelity and Guaranty Co., supra; Davis v. Md. Cas. Co., supra. In Griffith v. Security Ins. Co. of Hartford, supra, 356 A.2d at 97 the court said:

"Over the years, many courts have been faced with the similar problem of deciding whether on a given state of facts individual persons are members of a particular household and, in each case, the decision has depended upon the particular factual circumstances involved. These factual circumstances are so varied that the decisions themselves are of little precedential value."

In Cobb v. State Sec. Ins. Co., 576 S.W.2d 726 (Mo. banc 1979), the court examined the question of whether an illegitimate child of the named insured qualified, under the uninsured motorist clause of an insurance policy, as a "relative" and as a member of the insured's "household." With regard to the latter term, the court said, at p. 738:

" 'Household' is a chameleon like word. The definition depends on the facts of each case. It is difficult to deduce any general principles. One theory...