BDB v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 11 May 2001
• Citation: 814 So.2d 877
• Parties: B.D.B. and P.S. v. STATE FARM MUTUAL AUTMOBILE INSURANCE COMPANY.
• Court: Alabama Court of Civil Appeals

814 So.2d 877

B.D.B. and P.S. v. STATE FARM MUTUAL AUTMOBILE INSURANCE COMPANY.

2990114.

Court of Civil Appeals of Alabama.

May 11, 2001.

Melissa A. Moreau and Robert L. Gonce of Gonce, Young, Sibley & Moreau, Florence, for appellants.

J. Michael Tanner of Ashe, Tanner, Wright & Kelley, P.C., Tuscumbia, for appellee.

THOMPSON, Judge.

B.D.B. was born in 1985 while her parents were dating. Her parents never married. B.D.B. has been in the primary physical custody of her mother, P.S., from her birth. The most recent custody-visitation order awarded the father visitation rights "[two] Saturdays per month for not less than 8 hours nor more than 12 hours with the visitation falling between the hours of 9:00 a.m. and 9:00 p.m." B.D.B.'s father exercised visitation with her and paid child support and provided medical insurance.

On September 7, 1996, while B.D.B. was visiting with her father, she was struck by a van while crossing Woodward Avenue in Muscle Shoals. The van was driven by L.B.M. On June 16, 1997, B.D.B. and P.S., sued L.B.M. for damages based on injuries B.D.B. sustained when struck by the van. They later amended their complaint to seek insurance benefits from State Farm Mutual Automobile Insurance Company, her father's automobile insurance carrier. State Farm moved for a summary judgment, claiming that B.D.B. was not covered under her father's automobile policy because, it argued, she did not fall within the policy definition of "relative." The trial court granted State Farm's motion for summary judgment on October 8, 1999. B.D.B. and her mother appealed. The Supreme Court of Alabama transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The father's automobile insurance policy with State Farm provided uninsured-motorist coverage to relatives of B.D.B. The term "relative," as defined in the policy, is "a person related to you or your spouse by blood, marriage, or adoption who lives primarily with you."¹

B.D.B. and her mother argue that they alleged sufficient facts to permit a jury to answer the question whether B.D.B. falls within the policy definition of "relative." They argue that the court had before it evidence—regarding material facts—that was subject to conflicting interpretations and thus that the summary judgment was improper. They point to evidence of several facts they claim support their contention. First, they argue that at the time of the accident, B.D.B. was primarily living with her father because she was visiting with him. They further assert that B.D.B. falls within the policy definition of "relative" because, as a matter of public policy, they say, she should be considered a resident of both parents' homes. As proof of her contention that she lived primarily with her father, B.D.B. stated that she maintained a bedroom in her father's house, that she stayed overnight with her father on occasion, and that some of her personal belongings remained at his house. B.D.B.'s mother stated that both parent's addresses are listed on B.D.B.'s school records. B.D.B. further contends that the phrase "lives primarily with you" is ambiguous and must be interpreted in favor of providing coverage.

The interpretation of an insurance contract presents a question of law. See Holt v. State Farm Mut. Auto. Ins. Co., 507 So.2d 388 (Ala.1986)

. Issues of insurance coverage are therefore properly decided on a motion for summary judgment. "Our standard of review in cases involving summary judgments is de novo." Lee v. Burdette, 715 So.2d 804, 806 (Ala. Civ.App.1998). A party is entitled to a summary judgment if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. "In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact" and whether the movant "is entitled to [a] judgment as a matter of law." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c)(3), Ala. R. Civ. P. "[I]f the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden ... shifts to the non-movant." The nonmovant must then "show `substantial evidence' in support of his position." Bass v. SouthTrust Bank, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is "of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

When analyzing an insurance policy, a court gives words used in the policy their common, everyday meaning and interprets them as a reasonable person in the insured's position would have understood them. Western World Ins. Co. v. City of Tuscumbia, 612 So.2d 1159 (Ala. 1992); St. Paul Fire & Marine Ins. Co. v. Edge Mem'l Hosp., 584 So.2d 1316 (Ala. 1991). If, under this standard, they are reasonably certain in their meaning, they are not ambiguous as a matter of law and the rule of construction in favor of the insured does not apply. Bituminous Cas. Corp. v. Harris, 372 So.2d 342 (Ala.Civ. App.1979). Only in cases of genuine ambiguity or inconsistency is it proper to resort to rules of construction. Canal Ins. Co. v. Old Republic Ins. Co., 718 So.2d 8 (Ala. 1998). A policy is not made ambiguous by the fact that the parties interpret the policy differently or disagree as to the meaning of a written provision in a contract. Watkins v. United States Fid. & Guar. Co., 656 So.2d 337 (Ala.1994). A court must not rewrite a policy so as to include or exclude coverage that was not intended. Upton v. Mississippi Valley Title Ins. Co., 469 So.2d 548 (Ala.1985). Giving the words of the State Farm policy their common, everyday meaning, we must look to see whether the evidence created a genuine issue of fact as to whether B.D.B. "lives primarily with" her father.

In determining the common meaning of the terms of an insurance policy, this court has looked to dictionary definitions. See Boone v. Safeway Ins. Co. of Alabama, Inc., 690 So.2d 404 (Ala.Civ.App. 1997)

. In Merriam Webster's Collegiate Dictionary, Tenth Edition, (1999), "primarily" is defined as "for the most part, chiefly." Accordingly, we conclude that the term "primarily," when considered in light of the facts of this case, is not ambiguous. The common definitions of the term leave us with no doubt as to the meaning of the term. It is clear from the language of the policy that the terms of the policy provided no coverage to B.D.B. because she does not live chiefly with her father.

Although no Alabama case has defined the phrase "lives primarily with you" within the context of the policy's definition of "relative," and that phrase has yet to be defined in any other jurisdiction, B.D.B. argues that two cases that discuss the phrase "lives with you" are dispositive.² In Withers v. State Farm Mutual Automobile Insurance Co., 580 So.2d 582 (Ala. 1991), and Davis v. State Farm Mutual Automobile Insurance Co., 583 So.2d 225 (Ala.1991), the supreme court held that the phrase "lives with you" was ambiguous. However, we do not agree that the phrase "lives primarily with you" is ambiguous, because in this present case we conclude that the definition of "primarily" is clear. The phrase "lives primarily with you" is not so broad as to violate public policy declared by the statute governing uninsured-motorist coverage. A court should follow the clear language of the policy in deciding whether B.D.B. is covered under her father's automobile insurance policy with State Farm. The language of the policy is clear; to hold that B.D.B. was covered by the policy would be contrary to that clear language.

B.D.B. also relies on a Mississippi case in which the court held that for purposes of uninsured-motorist coverage, a minor is a resident of each parent's household. See Aetna Cas. & Sur. Co. v. Williams, 623 So.2d 1005 (Miss.1993)

. The question whether a child can be said to "reside" with the noncustodial spouse for purposes of uninsured-motorist coverage has been considered in several jurisdictions, with mixed results. Where custody has been determined, and the arrangement is fashioned as a joint-custody situation, most courts have found coverage for the minor child under the noncustodial parent's policy subject to the provision that the noncustodial parent must have a presence in the minor child's life. See Casolari v. Pipkins, 253 Ill.App.3d 265, 191 Ill.Dec. 580, 624 N.E.2d 429 (1993); and Adams v. Great American Ins. Companies, 87 Wash.App. 883, 942 P.2d 1087 (1997). Coverage has also been found where there is a significant physical presence by the noncustodial parent who is the named insured, if the child has an economic dependence on the named insured and there is a permanence of living arrangements between the named insured and the minor child. See Butler v. MFA Mut. Ins. Co., 356 So.2d 1129 (La.Ct. App.1978)(where the noncustodial father owned the house where the minor child lived and spent a substantial amount of time there); American Family Mut. Ins. Co. v. Thiem, 503 N.W.2d 789 (Minn. 1993)(where the parents established a cooperative effort for the minor child and each parent's intention was that the child be a resident of both households); Countryside Cas. Co. v. McCormick, 722 S.W.2d 655 (Mo.Ct.App.1987)(where the court noted that the most significant factor in determining residence is custody but that a child may be held to reside with a noncustodial parent where there are periods of residence with both parents and the noncustodial...