Dautel v. United Pacific Ins. Companies

• Decision Date: 05 August 1987
• Docket Number: No. 18373-7-I,18373-7-I
• Citation: 48 Wn.App. 759,740 P.2d 894
• Parties: Larry DAUTEL and Irene Dautel, husband and wife, Assignees; and Jay P. King, Assignor, Respondents, v. UNITED PACIFIC INSURANCE COMPANIES, a Washington corporation, Appellant.
• Court: Washington Court of Appeals

Page 759

48 Wn.App. 759

740 P.2d 894

Larry DAUTEL and Irene Dautel, husband and wife, Assignees and Jay P. King, Assignor, Respondents, v. UNITED PACIFIC INSURANCE COMPANIES, a Washington corporation, Appellant.

No. 18373-7-I.

Court of Appeals of Washington Division 1.

Aug. 5, 1987.

As Changed Sept. 15, 1987.

James M. Beecher, Theodore H. Millan, Hackett, Beecher, Hart, Branom & Webster, Seattle, for United Pacific Ins. Co. Edward C. Beeksma, Alan R. Hancock, Zylstra, Beeksma, Waller & Skinner, Oak Harbor, for Larry and Irene Dautel.

SCHOLFIELD, Chief Judge.

United Pacific Insurance Company appeals a judgment against it in the amount of $300,000 plus $49,906.85 in interest, in favor of Larry Dautel and Irene, his wife. We reverse.

FACTS

Donna Kester, United Pacific's named insured, purchased a homeowner's insurance policy with an effective date of September 1, 1981. The policy remained in force at least through September 1, 1984.

In the fall of 1982, Kester and her brother, Jay King, who lived in Arizona, made arrangements for King to travel to Washington state to visit with Kester and to go deer hunting. King planned to stay in Washington for a week to 10 days. After King arrived to stay with Kester, he slept on a sofa bed in the living room. King brought only his possessions necessary for a 10-day stay in Washington. King had taken vacation time from work and planned to return to Arizona when his visit was finished.

Kester and King went on the hunting trip, accompanied by Larry Dautel, Kester's long-term boyfriend. Upon their return from the hunting trip, while at Kester's home, Dautel and Kester began arguing, and eventually the argument became physical. Dautel slapped Kester once, and at that point King picked up a hunting rifle. King pointed the weapon at Dautel, who attempted to wrest the rifle from King. Dautel was shot in the abdomen in the ensuing struggle. King was arrested by law enforcement authorities and then released, but the record does not indicate that any charges were filed against him.

Dautel and his wife, Irene, filed suit against King in Skagit County. King admitted his negligence, and a stipulated judgment in the amount of $1 million was entered against The Dautels entered into a covenant not to execute beyond available insurance coverage in favor of King. In exchange, King assigned to the Dautels all of his rights under Kester's homeowner's policy with United Pacific. The Dautels filed suit against United Pacific for the limits of Kester's policy, $300,000.

                him.   King's own homeowner's insurer, State Farm, paid its policy limits of $100,000
                

Kester stated in an affidavit that King was a guest in her home at the time of the incident. Kester further stated that the purpose of King's trip was a vacation, that it was fully understood that King would return to his home in Arizona at the end of his vacation, and that they did not consider King a resident in Kester's home or an insured under the policy.

Cross-motions for summary judgment were filed, and the court granted the Dautels' motion and entered a monetary judgment against United Pacific in favor of the Dautels in the amount of $300,000, plus $49,906.85 in interest.

STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Hartley v. State, 103 Wash.2d 768, 698 P.2d 77 (1985). The court must consider the evidence in the light most favorable to the nonmoving party. Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972). On review of an order granting summary judgment, the appellate court must "engage in the same inquiry as the trial court." Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

RESIDENT OF THE HOUSEHOLD

The issue in this case is coverage. As Kester's relative, King is an insured under the policy only if he is a resident of her household.

Kester's homeowner's policy stated in pertinent part:

Definitions

* * *

4. "insured" means you and the following residents of your household:

a. your relatives;

* * *

Coverige F

Medical Payments to Others

... This coverage does not apply to you or regular residents of your household other than residence employees....

The Dautels argue that the phrase "residents of your household" is an ambiguous one, requiring interpretation. Insurance coverage is ambiguous when the policy on its face is fairly susceptible to more than one interpretation, all of which are reasonable. An ambiguous insurance policy will be given the reasonable interpretation which is most favorable to the insured. Exclusions from coverage are contrary to the fundamental protective purpose of an insurance policy and will, therefore, be narrowly construed. McDonald Indus., Inc. v. Rollins Leasing Corp., 95 Wash.2d 909, 631 P.2d 947 (1981); see also Morgan v. Prudential Ins. Co. of America, 86 Wash.2d 432, 545 P.2d 1193 (1976).

The Dautels argue that because the policy uses both the word "resident" and the phrase "regular resident" in different places in the policy, each must have a different meaning. The Dautels contend that a regular resident is one who resides in the household of the named insured on a permanent or long-term basis, while a resident is one who lives in the household on a temporary or short-term basis.

Although no cases in Washington have construed the meaning of the term "residents of [the same] household" with regard to a homeowner's insurance policy, this phrase has been examined in the automobile liability context. In Consumers United Ins. Co. v. Johnson, 26 Wash.App. 795, 614 P.2d 657 (1980), the driver of an insured vehicle was a 22-year-old friend of the named insured. Although the friend generally lived with his girl friend, he had access to the insured's apartment as " 'someplace to crash' ". In the 60 days prior to the accident, he had stayed at the apartment " 'probably around three or four nights.' " Consumers United, at 800, 614 P.2d 657.

The court held that the friend was not a resident. The court stated:

The term "resident" connotes a living arrangement with some degree of permanence ...

Consumers United, at 801, 614 P.2d 657.

In Pierce v. Aetna Cas. & Surety Co., 29 Wash.App. 32, 627 P.2d 152 (1981), a divorced father unsuccessfully sought a declaratory judgment that he and his injured son were residents of the same household for purposes of uninsured motorist coverage. The mother had custody of the son and resided with him in the family home. The father, although retaining ownership of the home, visited it only occasionally.

On appeal, the court noted that "resident" is usually defined as "one who dwells or has an abode in a place for a continued length of time ..." Pierce, at 36, 627 P.2d 152. The Pierce court cited several relevant factors in determining who is a resident of the same household:

(1) the intent of the departing person, (2) the formality or informality of the relationship between the person and the members of the household, (3) the relative propinquity of the dwelling units, and (4) the existence of another place of lodging.

Pierce, at 38, 627 P.2d 152 (citing Workman v. Detroit Auto Inter-Ins. Exch., 404 Mich. 477, 479, 274 N.W.2d 373, 379 (1979)).

In GMAC v. Grange Ins. Ass'n, 38 Wash.App. 6, 684 P.2d 744 (1984), the issue on appeal was whether the driver, the policyholder's son, was insured under the policy as a "resident of the household", since he lived part of the time in an apartment 15 miles from home. On appeal, the court noted that the phrase "resident of the same household" has been interpreted numerous times, and the phrase varies according to individual circumstances, but will be interpreted against the insurance company and in favor of coverage. GMAC, at 9, 684 P.2d 744. Utilizing the same factors as set forth in Pierce, the GMAC court found the evidence supported the trial court's conclusion that the son was a resident of the household.

Other jurisdictions have examined this question with respect to both automobile liability policies and homeowner policies. Turning to the automobile liability policies first, in Hardware Mut. Cas. Co. v. Home Indem. Co., 241 Cal.App.2d 303, 50 Cal.Rptr. 508 (1966), the named insured's nephew lived regularly with the insured, although he still nominally shared an apartment with a roommate. In determining a definition for "resident", the court stated:

We think that a resident of the same household is one, other than a temporary or transient visitor, who lives together with others in the same house for a period of some duration, although he may not intend to remain there permanently.

Hardware Mut., 50 Cal.Rptr. at 514. The court upheld the determination that the nephew was insured under the policy.

In Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 197 N.W.2d 783 (1972), a young woman who normally lived at her mother's home went to stay temporarily at her uncle's home to care for his children. On appeal, the court determined that the niece was not a resident of her uncle's household. The court utilized the following factors in rendering its decision:

[W]hether a person is a resident or member of a household in the...