Crossett v. St. Louis Fire & Marine Ins. Co.

• Citation: 269 So.2d 869,289 Ala. 598
• Parties: George D. CROSSETT v. ST. LOUIS FIRE AND MARINE INSURANCE CO., a Corporation. SC 33.
• Decision Date: 30 November 1972
• Court: Alabama Supreme Court

Page 869

269 So.2d 869

289 Ala. 598

George D. CROSSETT v. ST. LOUIS FIRE AND MARINE INSURANCE CO., a Corporation.

SC 33.

Supreme Court of Alabama.

Nov. 30, 1972.

Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellant.

Huie, Fernambucq & Stewart, Birmingham, for appellee St. Louis Fire and Marine Ins. Co.

Cato & Hicks, Birmingham, for appellee Cavell Co., Inc.

BLOODWORTH, Justice.

This is an appeal from a final decree in a declaratory judgment action. The trial court held that the bodily injury liability coverage, provided for under the omnibus clause of a homeowners insurance policy, did not apply to the son of the named insureds, who was then a student at Auburn University, Auburn, Alabama, living in Cavell Dormitory.

Appellant is George D. (Don) Crossett. The homeowners policy was issued to his parents, who lived in Birmingham, Alabama. On the evening of November 4 1967, Don Crossett allegedly injured a classmate, Jerry Patterson, who was a close friend and former roommate, while they were engaged in an alleged altercation in Cavell Dormitory at Auburn, Alabama. The injury allegedly resulted in the loss of the classmate's eye. Don Crossett is the defendant in a lawsuit filed by the injured party, Jerry Patterson, which suit is pending in the Circuit Court of Jefferson County.

The insurer, St. Louis Fire and Marine, filed this declaratory judgment action to obtain a determination that it is not obligated to defend Crossett nor to afford him protection under the policy in that suit. Crossett's father and mother (George W. and Elizabeth B. Crossett) are the named insureds under the homeowners policy and were made parties respondent along with Jerry Patterson and Cavell Company, the dormitory owner.

The trial court held that Don Crossett was not an insured within the meaning of the policy terms under the omnibus clause, which reads as follows, viz:

'2. DEFINITIONS:

(a) Insured: The unqualified word 'Insured' includes (1) the Named Insured and (2) If residents of his household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of an Insured.' (Emphasis ours.)

The trial court declined to make findings on the questions as to whether the alleged injury was 'caused intentionally' or as to whether the alleged acts of Don Crossett were 'business pursuits,' both being policy exclusions. The trial judge decreed that both these questions were issues to be determined on the law side of the court. The trial court further held that St. Louis Fire and Marine Insurance Company had no obligation to defend Don Crossett nor any obligation to the injured party arising out of the incident.

The issue presented to us on this appeal is whether Don Crossett was a resident of the household of the named insureds, his parents (George W. and Elizabeth B. Crossett), on the date of the alleged incident.

Although Don Crossett was attending Auburn University, whereas his parents lived in Birmingham, Don had a room in the family home. (Auburn, Alabama, is 116 miles distant from Birmingham, Alabama.) Don was an only child and came home on weekends, except when Auburn was playing football at Auburn. He kept all of his personal belongings at his parents' home, including his off-season clothes; except those clothes he needed at school, his radio, books, and personal necessities. At the time of the incident, Don Crossett was 20 years old and a senior. He became 21 on November 21, 1967, and married the next day. St. Louis Fire infers from the testimony that the reason Don went 'home' was to see his girl friend, who lived in Birmingham and whom he subsequently married.

Don's father paid his tuition, automobile expenses, board, and provided him with money for incidental expenses. He was receiving his room rent free in Cavell Dormitory in exchange for serving as a counselor. Don sometimes worked during Christmas vacation in order to buy presents. He worked one summer driving a truck for the City of Birmingham and worked the Coke concession during one football season at Auburn's home football games, earning five to ten dollars per game.

Don listed his parents' address on his driver's license and registered for the draft in Ensley, near his parents' home.

He was at his family home during all holiday periods. When at his parents' home, they put restrictions on him, such as requiring him to be in at a reasonable hour.

When at school, he did as he pleased. He went to school all four quarters, but there were breaks between quarters of several weeks duration, when he was at his father's home in Birmingham, Alabama.

Resolution of the primary issue in this case turns upon an interpretation of the omnibus clause, which defines additional insureds as being relatives 'if residents of his (the named insured's) household.' Don Crossett was, of course, a relative of the named insureds, his mother and father.

Counsel for Crossett contend that the clause 'residents of his household' is ambiguous and is due to be construed so as to extend coverage to the person seeking to become an additional insured if he can qualify in any ordinary sense, citing State Farm Mutual Automobile Ins. Co. v. Hanna, 277 Ala. 32, 166 So.2d 872 (1964).

The insurer also cites State Farm Mutual Automobile Ins. Co. v. Hanna, supra, contending that it is factually almost identical with the case at bar, dealt with a policy provision with almost identical provisions, and ought to be followed. The insurer argues that to follow Hanna, supra, will result in an affirmance of the trial court's decree, which held Don Crossett was not a resident of his father's household in Birmingham.

We must state our disagreement with the insurer's arguments and our agreement with Crossett's contentions. For it is our conclusion that the trial judge erred in holding that Don Crossett was not an additional insured within the meaning of, and as defined in the policy of insurance.

Perhaps at this point we ought to restate some general principles which we consider to be controlling in this case.

In Alabama Farm Bureau Mut. Cas. Ins. Co. v. Preston, 287 Ala. 493, 253 So.2d 4 (1971), it was said, viz:

'Insurance contracts, like other contracts, are not to be construed so technically as to defeat the intention of the parties, but are to be given a rational and practical construction. We are not at liberty to make a new contract for the parties by a tortured construction. * * *'

On the other hand, we stated in Hanna, supra, viz:

'The rule is too well settled by our decisions to require citation of authority that where provisions of an insurance policy are susceptible of plural constructions, consistent with the object of the obligation, that construction will be adopted which is favorable to the insured.'

Neither party has presented us with a decision of any court interpreting a like provision in a homeowners policy in a similar factual situation. Nor, has our research disclosed such a case. We have found one case interpreting an identical policy provision. It is Stadelmann v. Glen Falls Insurance Co. of Glen Falls (1967), 5 Mich.App. 536, 147 N.W.2d 460.

In Stadelmann, supra, it was held that a sister of the insured, member of another household and resident of a foreign country, was not a 'resident of his household,' within a homeowners policy definition of 'insured,' which included 'residents of his household' and would not be entitled to recover for loss of personal property. While factually the case is inapposite, the policy provision is identical. The court did go on to hold that relatives, such as plaintiff, are temporary guests when visiting (as in this case), for definite periods of time and do not fall within the terms of the policy provisions as to additional insureds.

We have found other cases from other jurisdictions interpreting similar, or almost identical, policy provisions. For the most part, they have arisen in the construction of automobile liability policies extending coverage to additional insureds or excluding coverage to those who are residents of the insureds' household. See Barker v. Iowa Mutual Insurance Company, 241 N.C. 397, 85 S.E.2d 305 (1955) (construing clause 'residing with insured' in loss away from premises in fire policy); Bartholet v. Berkness (1971), 291 Minn. 123, 189 N.W.2d 410 (construing clause 'members of the same household' within meaning of auto liability exclusion).

Two cases interpreting similar or like clauses in automobile liability policies appear to us to be in point. They are: American States Ins. Co., Western Pac. Div. v. Walker, 26 Utah 2d 161, 486 P.2d 1042 (1971), and Manuel v. American Employees Insurance Company (La.Ct. of App. Third Circuit, 1969), 228 So.2d 321.

In Walker, supra, the daughter of insured, who kept some furniture, books and clothing in ther father's home in Idaho, who had Idaho driver's license an voted there, but who had gone to Utah to college and was in training as x-ray technician, was held to be a 'resident of the same household' as her father, the insured, and thus covered under his automobile liability insurance policy.

The Supreme Court of Utah, speaking through Mr. Justice Ellett, had this to say about the meaning of the clause in question:

'A resident of a household is one who is a member of a family who live under the same roof. Residence emphasizes membership in a group rather than an attachment to a building. It is a matter of intention and choice rather than one of geography.

'Ordinarily when a child is away from home attending school, he remains a member of the family household, and the question of when he ceases to be such is one which must be determined from all of the facts and circumstances as revealed by the evidence.'

In Manuel, supra, the Court of Appeal of Louisiana, Third Circuit, in an opinion authored by Judge Tate (now Associate Justice, Supreme Court of Louisiana), held that a son of insured, who attended college 40 miles from...