Cal-Farm Ins. Co. v. Boisseranc, CAL-FARM

• Decision Date: 19 June 1957
• Docket Number: CAL-FARM
• Citation: 151 Cal.App.2d 775,312 P.2d 401
• Court: California Court of Appeals Court of Appeals
• Parties: INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Carolyn BOISSERANC and James Boisseranc, a minor, Defendants, James Boisserance, Respondent. Civ. 17223.

Page 401

312 P.2d 401

151 Cal.App.2d 775

CAL-FARM INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Carolyn BOISSERANC and James Boisseranc, a minor, Defendants James Boisserance, Respondent.

Civ. 17223.

District Court of Appeal, First District, Division 1, California.

June 19, 1957.

Rehearing Denied July 19, 1957.

Hearing Denied Aug. 13, 1957.

Campbell, Custer, Warburton & Britton, Alfred B. Britton, Jr., San Jose, W. R. Dunn, Burlingame, of counsel, for appellant.

Rankin, Oneal, Luckhardt, Center & Hall, San Jose, Edward J. Niland, San Jose, of counsel, for respondent.

PETERS, Presiding Justice.

Jame Boisseranc, the child of Carolyn and August Boisseranc, aged 6, injured another child. Civil actions were filed against the Boisserances and James. The insurance carrier brought this action for declaratory relief, seeking a determination that the insurance company was not liable under a policy issued by it to August Boisseranc. This policy was a comprehensive liability policy which protected August and his wife and relatives 'if residents of his household' against liability imposed by law because of bodily injuries sustained by others. The trial court found that the insurance carrier was not obligated to defend or to respond in damages in any action against Carolyn, but decreed that James was an insured within the meaning of the policy. Cal-Farm appeals from this portion of the judgment.

The insurance policy contains the following pertinent coverage provisions:

'Coverage A--Bodily Injury Liability.

'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law * * * for damages, because of bodily injury * * * sustained by any person or persons.'

It is also provided that: 'The unqualified word 'insured' includes the named insured and also includes, if residents of his household, his spouse and relatives * * *.'

Under the terms of the policy the insurer is admittedly obligated to defend any suit asserting a liability against any of the insured covered by the policy. The question presented is whether James, the son of August Boisseranc, is an insured within the meaning of the policy. This depends upon whether James, as a matter of fact, qualified as a 'resident' of the 'household' of August on the date of the accident.

When the policy was executed in 1949 the Boisseranc family was intact, that is, August and Carolyn and their children, including James, lived as a family unit on the insured premises. In 1952 August and Carolyn separated, and two of the children, including James, went to live with their mother. In February of 1953 Carolyn secured an interlocutory decree of divorce. Following the separation, James spent part of his time with each parent, the major portion being spent with his father. On September 1, 1953, shortly after leaving his father's home and while staying with his mother, James injured the child who has brought the action from which the insurance carrier seeks to be relieved.

The main argument of the insurance carrier is that under the terms of the interlocutory decree of divorce between August and Carolyn, their son James, as a matter of law, resided with Carolyn and not with August. The interlocutory, in reference to the custody of James, provided as follows:

'That said parties are awarded the joint custody of James Boisseranc, the minor son of these parties, provided that the physical residence of the said James Boisseranc shall be divided between the parties so that said son shall reside alternate periods of fifteen (15) consecutive days with each of the parties, the first of said fifteen (15) day periods to begin with the 6th day of February, 1953, and plaintiff to have the first opportunity to select the beginning period in which said child will reside with her.

'That each of said parties shall have freedom of visitation with the child or children in the custody of the other at reasonable times and places.'

Several months after this decree was entered, and before September 1, 1953, the terms of the interlocutory were modified by stipulation to read as follows 'That said parties be awarded the joint custody of Diane Boisseranc, their minor daughter, as well as the joint custody of James Boisseranc as provided for in said agreement and decree;

'That the physical residence of Diane Boisseranc shall continue to be with plaintiff and that the physical residence of James Boisseranc shall be with plaintiff, rather than divided, as provided in said decree; provided, however, that defendant shall have the right of visitation with said two minor children at all reasonable times and places, including the visitations by them in his home.'

The evidence most favorable to respondent shows that after the interlocutory was entered James spent substantially three-fourths of his time, day and night, with his father. After the decree was modified and up to June, 1953, James was with his father more than half the time. The school year ended in June. After the termination of the school year, James spent a few days with his mother and then returned to his father's home, where he remained until about a week before the accident when he returned to his mother's house. He was physically staying at his mother's home when the accident occurred. The evidence shows that between the date of the modification of the interlocutory and the date of the accident James was with his father three-fourths of the time. After the accident and up to December of 1953 James spent substantially more time with his father than he did with his mother. James had a bed in his father's house and kept a substantial amount of his clothing and many of his playthings there. At all times August Boisserance paid for his son's support, clothing and medical bills.

August testified that it was his belief that he and his wife were equally entitled to the custody of James. Carolyn testified that she did not interpret the modified interlocutory as meaning that James' 'residence' was to be exclusively with her. She also testified that even after the interlocutory and following the accident she had not definitely decided never to return to August. Later, however, she did secure a final decree and marry another person.

On this evidence the trial court, after finding that Carolyn was not covered by the policy, found that 'on September 1, 1953, defendant James Boisseranc, a minor, was the son and a resident of the household of August Boisseranc within the meaning and terms of the policy of insurance, the subject of this action, and that on said date a relationship of insurer and insured did exist between the plaintiff herein and the said James Boisseranc.'

Appellant, as already stated, places its main reliance on the custody terms of the interlocutory decree and its modification in support of its contention that, as a matter of law, James was not a 'resident' of August's 'household' at the time of the accident. It cites cases dealing with the technical definitions of 'residence' and 'domicile,' particularly in the fields of family law and conflict of laws.

There can be no doubt that in some situations, particularly in the field of jurisdiction, courts have held that the terms of a divorce decree are decisive as to the residence of a minor child. ¹ There are also a line of cases holding that the parent to whom custody has been given by a decree has the power to change the legal residence of the child. Section 213, Civ.Code; § 1526, Welf. & Inst.Code; Sampsell v. Superior Court, 32 Cal.2d 763, 197 P.2d 739; In re Gi, 134 Cal.App.2d 479, 286 P.2d 364; Guardianship of Brazeal, 117 Cal.App.2d 59, 254 P.2d 886; Heinz v. Heinz, 68 Cal.App.2d 713, 157 P.2d 660; In re Chandler, 36 Cal.App.2d 583, 97 P.2d 1048; Guardianship of Casella, 133 Cal.App. 80, 23 P.2d 782; Annotation 53 A.L.R. 1160.

Appellant also emphasizes that James was living with his mother when the accident occurred, and contends that this negatives any thought that James was then a 'resident' of his father's 'household.'

The contention that residence, so far as coverage under the policy is concerned, is a question of law is not sound. Obviously, extrinsic evidence had to be admitted before the court could interpret the policy. This is one test as to whether the question is one of 'fact' or 'of law.' Quader-Kino A. G. v. Nebenzal, 35 Cal.2d 287, 217 P.2d 650; Edwards v. Billow, 31 Cal.2d 350, 188 P.2d 748; Transportation Guar. Co. v. Jellins, 29 Cal.,2d 242, 174 P.2d 625; In re Estate of Rule, 25 Cal.2d 1, 152 P.2d 1003, 155 A.L.R. 1319. At the trial both sides introduced extrinsic evidence on the subject. Thus, appellant introduced the terms of the interlocutory and its modification. Both sides, without objection, presented evidence as to the periods James spent with each parent. The parties were undoubtedly correct in assuming that extrinsic evidence was admissible on the question of interpretation. Obviously 'relatives' of the named insured 'if residents of his household' require some explanation dehors the contract. Chastain v. Belmont, 43 Cal.2d 45, 271 P.2d 498; Herrmann v. Fireman's Fund Ins. Co., 127 Cal.App.2d 560, 274 P.2d 501; Pendell v. Westland Life Ins. Co., 95 Cal.App.2d 766, 214 P.2d 392.

Since the question is one of fact then, of course, any reasonable construction by the lower court must be upheld under the general rules applicable to conflicting evidence. Another rule of construction is also applicable, that is, that in determining whether the trial court's construction is reasonable any ambiguities in the policy must be interpreted against the insurer. This rule of construction extends to a determination of the question as to who is covered by a policy. In Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d 423, 437, 296 P.2d 801, 809, it was stated: 'It is elementary in insurance law that any ambiguity or uncertainty in an insurance policy is to be...