Dairyland Ins. Co. v. Auto Owners Ins. Co.

• Decision Date: 13 May 1983
• Docket Number: Docket No. 55895,AUTO-OWNERS
• Citation: 333 N.W.2d 322,123 Mich.App. 675
• Parties: DAIRYLAND INSURANCE COMPANY, a Michigan corporation, and Dairyland Insurance Company, a Michigan corporation as subrogee of Thomas Sterly, Plaintiff-Appellant, v.INSURANCE COMPANY, a Michigan insurance corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 322

333 N.W.2d 322

123 Mich.App. 675

DAIRYLAND INSURANCE COMPANY, a Michigan corporation, and Dairyland Insurance Company, a Michigan corporation as subrogee of Thomas Sterly, Plaintiff-Appellant, v. AUTO-OWNERS INSURANCE COMPANY, a Michigan insurance corporation, Defendant-Appellee.

Docket No. 55895.

Court of Appeals of Michigan.

Submitted March 4, 1982.

Decided March 8, 1983.

Released for Publication May 13, 1983.

Landman, Luyendyk, Latimer, Clink & Robb by Stanley J. Stek, Grand Rapids, for plaintiff-appellant.

Linsey, Strain & Worsfold, P.C. by Patrick D. Murphy, Grand Rapids, for defendant-appellee.

Before WALSH, P.J., and CYNAR and HOOD, JJ.

HOOD, Judge.

Plaintiff appeals as of right from a judgment denying plaintiff's claim for reimbursement from defendant for personal injury protection benefits paid by plaintiff to Thomas Sterly. The benefits consisted of $41,343.79 for medical expenses and $4,668.80 for lost wages resulting from injuries Sterly sustained in an accident which occurred while he was a passenger in an automobile owned and being driven by plaintiff's insured, James Leach.

At the time of the accident there was in force a no-fault insurance policy issued by defendant to Thomas Sterly's mother, Betty Sterly. Citing M.C.L. § 500.3114; M.S.A. § 24.13114, which reads in pertinent part:

"(1) Except as provided in subsection (2), (3), and (5), a personal protection insurance policy * * * applies to accidental bodily injury to the person named in the policy, the person's spouse, and a relative of either domiciled in the same household * * *."

plaintiff claims that defendant's policy provided personal injury protection coverage to Thomas Sterly under one of two alternate theories. The first theory is that although at the time of the accident Thomas Sterly was living with his sister and grandfather in the grandfather's trailer in Petoskey he was nevertheless domiciled in his mother's household in Harbor Springs. Alternately, if he was domiciled in the household of his grandfather and sister in Petoskey, the policy covered him because his sister should be considered a person named in defendant's policy. The trial court found that plaintiff was not entitled to recover under either theory. We affirm.

The first issue presented is whether the trial court correctly ruled that at the time of the accident Sterly was not domiciled in the same household with his mother.

The testimony disclosed that Sterly was 20 years old at the time of the accident, which occurred August 17, 1978. In the summer of 1977, a year after his graduation from high school, he left his mother's home for his brother's farm, where he lived and worked until November, and then went to Detroit. His employment there proved unsatisfactory and he returned in early 1978 to his mother's home in Harbor Springs. About a month later he moved to his grandfather's trailer home, where his sister also lived, in Petoskey. He took with him only his clothes and what he needed for his day to day existence, leaving his stereo and some other items of property with his mother. His reasons for leaving his mother's home were to be closer to his work and to his friends, and also because of some differences with his mother and some incompatibility with his mother's live-in companion. He had lived in the grandfather's trailer more than six months at the time of the accident. He ate his meals there (except for the meals he obtained at the restaurant where he was employed), slept there, and traveled from there to his job and back. He was satisfied with the arrangement and had no plans to terminate it. He received no support of any kind from his mother. Nevertheless, he retained his mother's address as his official address for such things as his bank statements and driver's license. He knew that he could and probably would return to his mother's home if he lost his job or if some other contingency occurred.

Domicile and residence in Michigan are generally synonymous terms and, for purposes not involving insurance law, have been defined as "the place where a person has his home, with no present intention of removing, and to which he intends to return after going elsewhere for a longer or shorter time". Hartzler v. Radeka, 265 Mich. 451, 452, 251 N.W. 554 (1933). See also, Leader v. Leader, 73 Mich.App. 276, 251 N.W.2d 288 (1977).

Workman v. Detroit Automobile Inter-Ins. Exchange, 404 Mich. 477, 274 N.W.2d 373 (1979), is the only Michigan Supreme Court case interpreting the term "domicile" for the purposes of the no-fault act. That decision began its analysis by pointing out that for insurance purposes the term "domiciled in the same household" has no absolute or fixed meaning, and must be viewed flexibly in the context of the numerous factual settings possible. Workman, pp. 495-496, 274 N.W.2d 373. The Court further stated that in determining whether a person is "domiciled in the same household" as an insured, the courts of this and other states have articulated a number of factors, no one of which is, by itself, determinative. Each factor is to be weighed and balanced with the other. The Court went on to say:

"Among the relevant factors are the following: (1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his 'domicile' or 'household' * * * ; (2) the formality or informality of the relationship between the person and the members of the household * * * ; (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises * * * ; (4) the existence of another place of lodging by the person alleging 'residence' or 'domicile'." Workman, pp. 496-497, 274 N.W.2d 373. (Citations and footnote omitted.)

Based upon these factors Workman upheld the trial court's finding that a daughter-in-law who lived with her husband in a trailer within the curtilage of the house of her father-in-law, the named insured, was "domiciled in the same household" with the named insured.

In ascertaining domicile for purposes of the no-fault act, our Court has held that persons domiciled may include those who are not actually living in the same household as the insured. Specifically, it has been held that estranged spouses and children living with estranged spouses qualify for protection even though living apart from the named insured. Bierbusse v. The Farmers Ins. Group of Companies, 84 Mich.App. 34, 269 N.W.2d 297 (1978); Citizens Mutual Ins. Co. v. Community Services Ins., 65 Mich.App. 731, 238 N.W.2d 182 (1975). However, this Court has not had the opportunity to consider the particular problems posed by young people departing from the parents' home and establishing new domiciles as part of the normal transition to adulthood and independence. This case, therefore, presents a question of first impression in this jurisdiction.

All relevant factors must be considered in ascertaining domicile. Montgomery v. Hawkeye Security Ins. Co., 52 Mich.App. 457, 217 N.W.2d 449 (1974). In Workman, supra, as previously noted, the Court stated that the four factors therein specified were merely "among the relevant factors" to be considered. ¹ See also, Davenport v. Aetna Casualty & Surety Co. of Illinois, 114 Ga.App. 474, 241 S.E.2d 593 (1978) (domicile to be ascertained by evaluating the aggregate of details surrounding living arrangements). Other relevant indicia of domicile include such factors as whether the claimant continues to use his parents' home as his mailing address, whether he maintains some possessions with his parents, whether he uses his parents' address on his driver's license or other documents, whether a room is maintained for the claimant at the parents' home, and whether the claimant is dependent upon the parents for support.

Courts which have considered whether children of named insureds are domiciled with their parents for purposes of insurance benefits have sometimes held that even when most of those ties are present domicile has been severed. In Waller v. Rocky Mountain Fire & Casualty Co., 272 Or. 69, 535 P.2d 530 (1975), the court held that the named insured's son, who had prior to the accident moved to his friend's parents' house, was not a "resident" of his father's home, despite the fact that the son had left clothing with his parents, had not changed his mailing address, had given his parents' address on an employment application, and returned to his parents' home most weekends. The finding of non-residency was upheld in part on the son's testimony that he planned to move back with his parents in the future on only a very temporary and indefinite basis. In Cotton States Mutual Ins. Co. v. McEachern, 135 Ga.App. 628, 218 S.E.2d 645 (1975), the court held that the son of a named insured who had moved from his father's home six weeks previously was not a resident of his father's household, despite the fact that he and his wife frequently took their meals at his father's home. The court stated that the mere intent to change domicile may suffice if the individual takes some action to remove himself from his parents' home. In Tencza v. Aetna Casualty & Surety Co., 111 Ariz. 226, 527 P.2d 97 (1974), the court held that the named insured's 18-year-old stepdaughter who had moved away from his household two months before did not qualify as a domiciliary, since all relevant indicia pointed to her emancipation. ...