American Family Mutual Ins. v. Hoffman

• Decision Date: 29 May 2001
• Citation: 46 S.W.3d 631
• Parties: (Mo.App. S.D. 2001) American Family Mutual Insurance Company, Respondent, v. Michael Hoffman, by and through his Next Friend, Marilyn Schmutzler, formerly Don Roark, and Tanya Toebben, Appellant. WD58984 0
• Court: Missouri Court of Appeals

46 S.W.3d 631 (Mo.App. S.D. 2001)

American Family Mutual Insurance Company, Respondent, v. Michael Hoffman, by and through his Next Friend, Marilyn Schmutzler, formerly Don Roark, and Tanya Toebben, Appellant.

WD58984

Missouri Court of Appeals Western District

05/29/2001

Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown, III

Counsel for Appellant: Christopher P. Rackers

Counsel for Respondent: Robert K. Angstead

Opinion Summary: Michael Hoffman was injured during a weekend visit with his mother, Tanya Toebben. Michael, by and through his next friend, Marilyn Schmutzler, filed suit against his mother for his injuries. Ms. Toebben's homeowner's insurance company, American Family Mutual Insurance Company (American Family), filed a petition for declaratory judgment seeking a determination that Ms. Toebben's policy excluded any duty to pay for Michael's losses because Michael was a resident of Ms. Toebben's household at the time he sustained his injuries. After both parties filed motions for summary judgment, the trial court granted American Family's motion. Michael appeals, claiming that the trial court erred in concluding that he was a resident of both his father's and mother's households at the time he sustained his injuries.

Division I holds: The trial court erred in granting summary judgment in favor of American Family. The question of whether a person is a resident of a particular household is one of fact. In making this factual determination, the court is to consider whether the living arrangement is permanent or temporary, and whether the parties function as a family unit. Because genuine issues of fact remained on these issues, and on the ultimate issue of whether Michael was a resident of both Mr. Hoffman's and Ms. Toebben's household, summary judgment was improper.

Patricia Breckenridge, Judge

Michael Hoffman was injured during a weekend visit with his mother, Tanya Toebben. Michael, by and through his next friend, Marilyn Schmutzler, filed suit against his mother for his injuries. Ms. Toebben's homeowner's insurance company, American Family Mutual Insurance Company (American Family), filed a petition for declaratory judgment seeking a determination that Ms. Toebben's policy excluded any duty to pay for Michael's losses because Michael was a resident of Ms. Toebben's household at the time he sustained his injuries. After both parties filed motions for summary judgment, the trial court granted American Family's motion. Michael appeals, claiming that the trial court erred in concluding that he was a resident of both his father's and mother's households at the time he sustained his injuries. Because this court finds that whether Michael was a resident of his mother's household at the time he sustained his injuries was a disputed issue of fact, the summary judgment in favor of American Family is reversed, and the cause is remanded.

Factual and Procedural Background

The following are some of the facts to which the parties agree. Michael, who was born on August 5, 1985, is the son of Ms. Toebben and David Hoffman. Ms. Toebben and Mr. Hoffman were divorced on July 26, 1989. In the decree of dissolution, the court granted Ms. Toebben and Mr. Hoffman joint custody of Michael and his sister, with Mr. Hoffman having physical custody of the children subject to Ms. Toebben's liberal and reasonable visitation. The court also ordered the parties to abide by the terms of their separation agreement, which, with regard to custody, provided that:

Husband and Wife agree that they shall mutually exercise the joint care, custody, control and education of the minor children born of the marriage, to-wit: Michael Dean Hoffman and Jessica Lea Hoffman, sharing the decision making rights, responsibilities and authority relating to the health, education and welfare of the children. The physical placement of the children shall be with husband, subject to wife's liberal and reasonable visitation. This arrangement is to be established with the intention that both Husband and Wife shall continue the "co-parenting" atmosphere, which the parties and the minor children have been maintaining.

Ms. Toebben and Mr. Hoffman also agreed that Ms. Toebben would not pay any child support, and that Mr. Hoffman would be responsible for providing all support for the children, even when the children were in Ms. Toebben's physical custody.

Since the dissolution, Michael has lived with his father in Russellville, Missouri, where he attends school. Michael generally spends every other weekend and approximately two weeks during the summer with his mother at her home in Taos, Missouri, which is 25 miles from his father's home in Russellville.

Ms. Toebben exercised one of her weekend visits with Michael on the weekend beginning Friday, April 10, 1998. Michael spent the night at Ms. Toebben's house on that Friday. On the next day, April 11, 1998, Michael was injured while riding a neighbor's all-terrain vehicle.

Michael subsequently filed a petition for negligence against Ms. Toebben.¹ In the petition, Michael alleged that he suffered injuries consisting of a severe right femur fracture, bruising, contusions, cuts, scrapes, pain and suffering, mental anguish, and impairment of his health, strength, vitality, his ability to perform daily duties and responsibilities, and his capacity to engage in his educational and recreational activities. Michael also alleged that the injuries required him to undergo medical treatment and will require medical services and treatment in the future.

Michael then made demand upon American Family, Ms. Toebben's homeowner's insurance company, claiming that his losses were covered under Ms. Toebben's policy. With regard to liability coverage, Ms. Toebben's homeowner's insurance policy provides that American Family will pay, "up to our limit, compensatory damages for which any insured is legally liable because of bodily injury or property damage caused by an occurrence covered by this policy." Under the "Exclusions" section, however, the policy excludes "intra-insured" suits, stating that American Family "will not cover bodily injury to any insured." The policy's definition of "insured" reads:

Insured means you and, if residents of your household:(1) your relatives; and

(2) any other person under the age of 21 in your care or in the care of your resident relatives.

Following Michael's demand for payment under the policy, American Family filed a petition for declaratory judgment in which it sought a declaration from the court that the "intra-insured" exclusion applied to preclude coverage for Michael's alleged losses because Michael was a resident of Ms. Toebben's household at the time he suffered his alleged injuries. American Family and Michael each filed motions for summary judgment.

On July 27, 2000, the trial court granted American Family's motion. In its judgment, the trial court concluded that Michael was a resident of both Mr. Hoffman's and Ms. Toebben's households and, therefore, the intra-insured exclusion in Ms. Toebben's insurance policy with American Family precluded coverage for Michael's alleged injuries. Michael filed this appeal.

Standard of Review

Appellate review of a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). This court reviews the record in the light most favorable to the party against whom the judgment was entered, and "accord[s] the non-movant the benefit of all reasonable inferences from the record." Id. To demonstrate a right to summary judgment on its petition for declaratory judgment, American Family, as the claimant, must establish that there were no genuine issues upon which it would have had the burden of persuasion at trial, and that it was entitled to judgment as a matter of law. Id. at 381.

Michael's Residency is a Disputed Issue of Fact Precluding Summary Judgment

In his first point, Michael claims that the trial court erroneously applied the law by concluding that he was a resident of both Mr. Hoffman's and Ms. Toebben's households at the time he...