Alpaugh v. Continental Ins. Co.

• Decision Date: 29 June 2001
• Docket Number: No. 2001-C-0101.,2001-C-0101.
• Citation: 791 So.2d 71
• Parties: Katherine T. ALPAUGH, Tutrix, On Behalf of Her Minor Child, George Reade Alpaugh v. The CONTINENTAL INSURANCE COMPANY and Liberty Mutual Insurance Company.
• Court: Louisiana Supreme Court

791 So.2d 71

Katherine T. ALPAUGH, Tutrix, On Behalf of Her Minor Child, George Reade Alpaugh v. The CONTINENTAL INSURANCE COMPANY and Liberty Mutual Insurance Company.

No. 2001-C-0101.

Supreme Court of Louisiana.

June 29, 2001.

Monique M. Garsaud, Scott G. Jones, Hulse & Wanek, New Orleans, Counsel for Applicant.

Warren S. Edelman, Morton H. Katz, Ryan P. Reece, Joseph A. Kott, Herman, Herman, Katz & Cotlar, New Orleans, Thomas L. Gaudry, Jr., Gretna, William K. Christovich, Joseph I. Giarrusso, Jr., Kevin R. Tully, Margaret Diamond, McGlinchey Stafford, New Orleans, Counsel for Respondent.

PER CURIAM.¹

The issue in this writ concerns whether a minor child of divorced parents with joint custody falls within the exclusion of the father's liability insurance policy's definition of a family member who is a resident of the insured's household.

The case involves a claim for damages by Katherine Alpaugh on behalf of her minor son, George Reade Alpaugh, for injuries sustained in an automobile accident in Mississippi. George Alpaugh is the son of Katherine and Chester T. Alpaugh who were divorced at the time of the accident. George Alpaugh was injured when the vehicle in which he was traveling, driven by Chester Alpaugh, George's father, collided with another vehicle. George and Chester Alpaugh were returning to New Orleans from a Boy Scout camping trip in Mississippi when the accident occurred. Katherine Alpaugh sued Continental Insurance Company ("Continental"), Chester Alpaugh's liability insurance carrier, and Liberty Mutual Insurance Company ("Liberty Mutual"), the insurer of the Boy Scouts of America.

Continental denied coverage of George Alpaugh's damages based on an exclusion in its policy for bodily injury to a family member who is a resident of the insured's household. Katherine Alpaugh and Continental each filed a motion for summary judgment. The trial court denied Continental's motion for summary judgment.²

In support of her motion for summary judgment, Katherine Alpaugh offered: her sworn affidavit that George Alpaugh was residing with her on the day of the accident; the petition for divorce by Chester Alpaugh seeking a divorce from her; the consent judgment awarding physical custody to her from January 1 to June 30 each year and to Chester Alpaugh from July 1 to December 31 each year that provided George Alpaugh "shall reside with the parent having physical custody"; and, the Continental insurance policy. The accident occurred on March 15, 1998 during Katherine Alpaugh's six month physical custody period.

The Continental insurance policy excluded losses for "[b]odily injury to you [the insured] or any family member." The policy defines family member as:

Family 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.

For the purposes of this definition, to be considered a resident of your household when evaluation of coverage for a loss, a person must have been actually residing in your household on the date the loss occurred. However, your (a) son (b) daughter (c) ward or (d) foster child; in 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 permanently.

The parties do not dispute that George Alpaugh was with his father returning from a Boy Scout camping trip in Mississippi at the time of the accident and that Chester and Katherine Alpaugh maintained the custody agreement that provided Katherine Alpaugh has physical custody of George Alpaugh during the six months in which the accident occurred. The trial court granted Katherine Alpaugh's motion for summary judgment. The trial court found that "the insurance policy issued by Continental to Mr. Alpaugh provided coverage for the injuries to the minor child sustained in the March 15, 1998 accident." Continental appealed the trial court's judgment to the Fourth Circuit.³ The court of appeal affirmed, basing its decision on "the intention of the parents regarding the minor child's residence..." and the consent judgment. Alpaugh v. Continental Ins. Co., 00-228, p. 5 (La.App. 4th Cir.12/13/00), 776 So.2d 1245, 1248. We granted writs to further address this issue. See Alpaugh v. Continental Ins. Co., 01-0101 (La.3/23/01), 787 So.2d 1004

.

Continental argues that George Alpaugh's damages are excluded from coverage because the residency of a child is tied to his parent and George Alpaugh was with his father at the time of the accident. Continental asserts that the fact George and Chester Alpaugh were on a Boy Scout camping trip does not affect the residency status of George Alpaugh because a household extends beyond the four literal walls of Chester Alpaugh's physical home in New Orleans. Conversely, Katherine Alpaugh argues that according to the definition of residency in the Continental insurance policy, George Alpaugh was not residing with Chester Alpaugh because they were on a camping trip and not "actually residing" in Chester Alpaugh's household. Further, Katherine Alpaugh argues that the consent judgment provided that Katherine Alpaugh had physical custody of George Alpaugh at the time of the accident and the provision in the consent judgment that the child resided with the parent who had physical custody should control.

Although both parties make good arguments regarding George Alpaugh's residency status, we pretermit a discussion on George Alpaugh's residency status and reverse the judgments of the lower courts. We find insufficient evidence to resolve the genuine issue of material fact of George Alpaugh's...