Bruton v. North Carolina Farm Bureau Mut. Ins. Co., COA96-1490

• Decision Date: 07 October 1997
• Docket Number: No. COA96-1490,COA96-1490
• Citation: 127 N.C.App. 496,490 S.E.2d 600
• Court: North Carolina Court of Appeals
• Parties: Thomas Allen BRUTON, Plaintiff, v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant.

Page 600

490 S.E.2d 600

127 N.C.App. 496

Thomas Allen BRUTON, Plaintiff, v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant.

No. COA96-1490.

Court of Appeals of North Carolina.

Oct. 7, 1997.

Crossley, McIntosh, Prior & Collier by Clay A. Collier, Wilmington, for defendant-appellee.

Mast, Schulz, Mast, Mills & Stem, P.A. by Charles D. Mast and Bradley N. Schulz, Smithfield, for plaintiff-appellant.

LEWIS, Judge.

In this appeal, we are called upon to decide whether, within the context of an insurance policy, plaintiff was a "resident" of his father's household at the time of his injury by automobile accident on 31 October 1992.

Plaintiff was injured when the car in which he was riding, driven by his girlfriend, swerved off the road and hit a tree. Plaintiff incurred expenses of $125,000 as a result. He collected the policy limit of $25,000 from his girlfriend's liability carrier. He now seeks to collect the remaining $100,000 under his father's policy, which provides up to $300,000 in underinsured motorist (UIM) coverage to any "family member." The policy defines "family member" as "a person related to you [the insured] by blood, marriage or adoption who is a resident of your household " (emphasis added). The policy, however, does not define "resident." Whether plaintiff can recover under his father's UIM coverage hinges on whether plaintiff was a "resident" of his father's household at the time of the accident.

In a declaratory judgment action instituted by plaintiff the trial judge, sitting without a jury, found that plaintiff was not a "resident" of his father's household and was not covered under his father's policy. Plaintiff appeals.

The meaning of language used in an insurance policy is a question of law for this Court, as is the construction and application of the policy's provisions to the undisputed facts. Daniel v. City of Morganton, 125 N.C.App. 47, 53, 479 S.E.2d 263, 267 (1997). As with any other question of law, our review is de novo. Bicket v. McLean Securities, Inc., 124 N.C.App. 548, 553, 478 S.E.2d 518, 521 (1996), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997).

The word "resident" is an elastic, flexible, and somewhat ambiguous term. Great American Ins. Co. v. Allstate Ins. Co., 78 N.C.App. 653, 656, 338 S.E.2d 145, 147, disc. review denied, 316 N.C. 552, 344 S.E.2d 7 (1986). Its meaning can fall anywhere within the spectrum of "a place of abode for more than a temporary period of time" to "a permanent and established home." Id.

We conclude that a reasonable construction of the term "resident" does not include plaintiff based on the facts before us. We find that plaintiff was not a resident of his father's household at the time of the accident. The undisputed facts show that plaintiff spent the majority of his time with his girlfriend in his mobile home in Faison; prior to the accident he purchased a health insurance policy for which he listed his Faison address; he listed his Faison address for a bank account; his utility bills were incurred at and mailed to his Faison address; his Faison address was given for all tax matters; and his Faison address was also listed as his "residence" with the United States Post Office. In addition, following the accident plaintiff gave his Faison address to the medical authorities for all of his...