Allstate Ins. Co. v. Neumann

• Decision Date: 27 May 1982
• Docket Number: No. 3-1080A306,3-1080A306
• Citation: 435 N.E.2d 591
• Parties: ALLSTATE INSURANCE COMPANY, Defendant-Appellant, v. Wallace NEUMANN, et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 591

435 N.E.2d 591

ALLSTATE INSURANCE COMPANY, Defendant-Appellant, v. Wallace NEUMANN, et al., Plaintiffs-Appellees.

No. 3-1080A306.

Court of Appeals of Indiana, Third District.

May 27, 1982.

Arthur A. May, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for defendant-appellant.

Robert W. Miller, Miller & Miller, Elkhart, for plaintiffs-appellees.

GARRARD, Judge.

On September 29, 1973 Jenny Rivera took a Grand Prix automobile owned by Harry Bates to drive to a local shopping mall. While enroute she lost control and collided with an automobile that was owned and operated by Wallace Neumann. Neumann and his passengers were injured. At the time Bates had automobile liability insurance with United States Fidelity & Guaranty Company (USF & G) and Neumann was insured by Allstate Insurance Company (Allstate).

Neumann sued Rivera for damages. After securing a summary judgment on the question of liability, Neumann accepted an offer of judgment for the injuries to Neumann and his passengers in the total amount of.$23,500. Neumann then instituted proceedings supplementary against USF & G claiming coverage under Bates' policy. After hearing, the court determined that Rivera's operation of the vehicle was not insured. ¹ Neumann then sought to recover from Allstate pursuant to uninsured motorist provisions in his own policy. The trial court granted summary judgment against Allstate but reduced the judgment amount by $1853 as a setoff of Allstate's subrogation claim for collision and towing payments.

On appeal Allstate contends that USF & G was liable on the Bates policy. It also contends that in any event the summary judgment entered against it was improper.

USF & G and Neumann allege that the court improperly set aside its original entry of judgment against Allstate with the consequence that Allstate's motion to correct errors was filed too late. In addition, Neumann claims the court erred in allowing Allstate the setoff in the summary judgment for uninsured motorist protection.

I. Owner's Coverage

Bates' policy with USF & G provided that:

"The following are insureds under Part 1:

(a) with respect to the owned automobile,

(i) the named insured and any resident of the same household ...."

The question argued is whether the court properly determined that Rivera was not a resident of Bates' household at the time of the collision.

The facts in evidence disclosed that at the time in question Jenny Rivera was Bates' girlfriend. She was a recipient of C.E.T.A. funds and was attending Ivy Tech vocational school in South Bend. In June 1973 she secured a room at the Y.W.C.A. in South Bend. She paid her rent weekly and retained the room until January 1974. Although the evidence was contradictory as to the length of her relationship with Bates, it clearly appears that it preceded the date of the collision by at least two months and continued thereafter for at least a month. During this period on weekdays she would attend classes at Ivy Tech. When she returned to the Y.W.C.A. in the evening Bates would usually pick her up and they would go to his home in Elkhart. ² Although she might have stayed overnight on a few of these occasions, Bates would normally return her to the Y.W.C.A. the same night so that she would be ready to attend her classes the following morning. The testimony was, however, without conflict that during this period she spent the weekends with Bates. She testified that she kept clothing both at the Y.W.C.A. and at Bates' house. Bates also testified that when she was with him she would sometimes cook their meal. At trial Rivera testified that she considered she was living at Bates' house. Other evidence was introduced that after the collision both she and Bates had given statements to the effect that she was not a resident of Bates' house.

In its findings the trial court concluded that on the date of the collision Rivera was a resident of the Y.W.C.A. and Bates was the sole member of his household. Accordingly, the court determined that USF & G was not liable on its policy.

Initially, we note our agreement with appellant's assertion that the term "resident" had no fixed or precise meaning in the law. It is an amorphous term that, as one court observed, has as many colors as Joseph's coat. Weible v. United States (9th Cir. 1957), 244 F.2d 158.

At one end of the scale it may be used to refer to domicile. In such instances, once acquired it may be maintained although physical presence is elsewhere. Bd. of Medical Registration v. Turner (1960), 241 Ind. 73, 168 N.E.2d 193.

At the opposing extreme the term refers to actual presence and is broad enough to include transients. Bd. of Medical Registration, supra ; 25 Am.Jur.2d Domicile § 4.

When used as a term to distinguish from both transient status and domicile, "resident" may be said to refer to one having a fixed abode but only for the time being. As such the term involves a subjective element of intent. Guessefeldt v. McGrath (1952), 342 U.S. 308, 72 S.Ct. 338, 96 L.Ed. 342; Stadtmuller v. Miller (2nd Cir. 1926), 11 F.2d 732, 45 A.L.R. 895.

It follows that at least for some purposes a person may have more than one residence.

As a consequence of these considerations courts have long held that to determine the meaning of the term "resident" we must look to both the context in which the term is used and the purpose of the statute (or instrument) in which it is employed. Stadtmuller v. Miller (2nd Cir. 1926), 11 F.2d 732, 45 A.L.R. 895; 25 Am.Jur.2d Domicile § 4.

As a corollary, decisions construing the term in insurance policies have applied to it the rule of construction which favors coverage of the insured. ³ Thus, the term is to be given its broad meaning in the so-called "extension" cases, and is construed narrowly in "exclusion" cases. Aetna Cas. & Sur. Co. v. Miller (D.C.Kan.1967), 276 F.Supp. 341; Tencza v. Aetna Cas. & Sur. Co. (1974), 21 Ariz.App. 552, 521 P.2d 1010; Mazzilli v. Accident & Cas. Ins. Co. (1961), 35 N.J. 1, 170 A.2d 800; Cal-Farm Ins. Co. v. Boisseranc (1957), 151 Cal.App.2d 775, 312 P.2d 401. We agree in the soundness of this doctrine with the traditional caveat that in choosing a broad or narrow construction of a word or phrase the choices are limited to the reasonable interpretation of the term as used.

Here the policy purports to insure, with respect to the owned automobile, the named insured (Bates), any resident of the same household, or any other person using the automobile with the permission of the named insured. ⁴

A household may be defined as consisting of those who dwell under the same roof and compose a family; a domestic establishment. Websters New International Dictionary, Unabridged, 2nd Ed. The term has been said to be synonymous with "family" but broader, in that it includes servants or attendants; all who are under one domestic head. Engebretson v. Austvold (1937) 199 Minn. 399, 271 N.W. 809, 810. It is not restricted to relatives by blood or marriage.

In Barrett v. Commercial Standard Ins. Co. (Tex.Civ.App.1940), 145 S.W.2d 315 the court observed that the evident purpose of an insurer in providing an exclusion clause for members of the insured's household in its provisions covering theft of an automobile was to guard against liability when the theft should be committed by one having unrestricted access to the home and its contents, including keys to the automobile. We can identify the same general purpose in the inclusion clause before us: to provide coverage to persons having unrestricted access to the home and its contents. Yet the Barrett court held that this did not as a matter of law exclude coverage where the thief was a nephew who had been aided by the insured and on the day in question was in the house by invitation.

Similarly, we believe there existed in the case at bar factual questions concerning whether Jenny Rivera was a resident of Bates' household on the date of the collision. More than physical presence was necessary to make her a resident of the household. There was additionally a subjective element of intent. See Stadtmuller, supra.

We believe the evidence was sufficient that the trial court could have determined that she met the requirements for coverage under the policy. The issue then is whether it was required to do so.

The burden was on Neumann in the proceeding supplemental to establish his rights to coverage under the policy. Hinds v. McNair (1955), 235 Ind. 34, 129 N.E.2d 553. He suffered a negative judgment and on appeal we may not reverse unless the evidence without conflict leads unerringly to the conclusion opposite that reached by the trial court. We cannot say that this standard for reversal has been met.

While Rivera testified at trial that she considered Bates' home to be her residence, evidence of prior statements given by both Rivera and Bates asserted she did not reside at his house. At trial Bates testified he lived at the house alone and then corrected this to include Rivera. The evidence was conflicting as to how long Rivera visited Bates' house both before and after the collision. While the evidence of Rivera's living habits was susceptible to the conclusion that she was a resident of Bates' household, it certainly did not command that conclusion. Finally, we note that at trial Bates testified that he expressly told Rivera not to drive the auto and that he left the house before she did. On the other hand, she testified that she had Bates' permission to drive the car; that she left before he did; and that, indeed, he had been following behind her but stopped at a service station. Thus, the court was confronted with a substantial credibility problem concerning these witnesses.

From all this the court could properly have concluded that the burden of proof had not been met. We therefore affirm the determination that USF & G was not liable on its policy.

II. Uninsured Motorist Judgment

After the trial court determined that USF & G was...