Davis by Davis v. Maryland Cas. Co.

• Decision Date: 16 July 1985
• Docket Number: No. 8430SC1203,8430SC1203
• Citation: 331 S.E.2d 744,76 N.C.App. 102
• Parties: Michelle Beth DAVIS, by her Guardian ad Litem, Sandra Dee DAVIS v. MARYLAND CASUALTY COMPANY, A Maryland Corporation.
• Court: North Carolina Court of Appeals

Page 744

331 S.E.2d 744

76 N.C.App. 102

Michelle Beth DAVIS, by her Guardian ad Litem, Sandra Dee DAVIS v. MARYLAND CASUALTY COMPANY, A Maryland Corporation.

No. 8430SC1203.

Court of Appeals of North Carolina.

July 16, 1985.

McLean & Dickson, P.A. by Russell L. McLean, III, Waynesville, for plaintiff-appellee.

James F. Blue, III, P.A. by Sheila Fellerath, Waynesville, for defendant-appellant.

MARTIN, Judge.

This appeal concerns a declaratory judgment action to construe an automobile insurance policy. The sole issue is the interpretation of the phrase, "resident of your household," contained in the policy's uninsured motorist coverage. We are persuaded that under the facts of this case, the minor plaintiff is a resident of her father's household, so as to be within the coverage provided by the policy, even though the father lived separately from the mother, who had custody of the minor plaintiff under a separation agreement. Accordingly, we affirm the judgment of the trial court.

The facts of the case are undisputed. Virgil Davis had been issued an automobile insurance policy by Maryland Casualty Company which provided uninsured motorist coverage to the insured "or any family member". "Family member" was defined as meaning "a person related to you by blood, marriage or adoption who is a resident of your household." [Emphasis supplied]. On 3 March 1983, Michelle Beth Davis, the five year old daughter of Virgil and Sandra Dee Davis, was struck and injured by a motorcycle, the owner and operator of which was uninsured. On behalf of her daughter, Sandra Dee Davis filed a claim under the uninsured motorist's coverage of Virgil Davis' policy. Maryland Casualty Company, however, denied coverage, asserting that Michelle Beth Davis was not a resident of the same household as her father, Virgil Davis, on the date of the accident.

Virgil Davis and his wife, Sandra Dee Davis, separated in January 1981. Sandra Dee Davis was given custody of Michelle Beth Davis pursuant to a separation agreement. Sandra Dee Davis and the minor plaintiff continued to live in the family residence while Virgil Davis moved to his grandmother's, later into an apartment, and then into a trailer. Since the time of the separation, Michelle Beth has frequently stayed overnight with her father, as many as two or three nights a week. Although a visitation schedule was provided for in the separation agreement, actual visitation has been more liberal. The minor plaintiff has frequently called her father to arrange additional visitation, and Sandra Dee Davis has permitted the additional visitations whenever the child requested them. The father has made provision for keeping her clothes, personal property, and some of her furniture at his residence. In addition, he has provided support for her, and is obligated by the separation agreement to provide hospitalization coverage for the minor plaintiff and to pay all of her medical and dental expenses. There has been no court decree adjudicating custody of the minor plaintiff. Sandra Dee Davis and Virgil Davis are not divorced. On the basis of these facts the trial court found that "the parents exercised unlimited freedom to have the child with each of them, and in effect, treated their respective contacts with the child as if they had joint custody." The trial court concluded that

[t]he father, Virgil Davis, had and continues to have such liberal and flexible visitation privileges with the minor plaintiff so as to conclude he essentially had joint custody of the said child, and that the child, on March 3, 1983 was with her father frequently enough on a custodial basis to be a resident of his household....

The insurance policy at issue here provided uninsured motorist coverage to relatives of the named insured only if such relatives were residents of the named insured's household. Insurance policies are construed in accordance with the general rules applicable to other contracts, and the court must interpret them according to the intent of the parties. Woodell v. Aetna Insurance Co., 214 N.C. 496, 199 S.E. 719 (1938). The terms of the policy must be understood in their plain, ordinary, and popular sense. Grant v. Ins. Co., 295 N.C. 39, 243 S.E.2d 894 (1978). If such terms have more than one meaning in ordinary usage, they are to be construed liberally to provide coverage for those who, by any reasonable construction, can be included within the coverage. Insurance Co. v. Insurance Co., 266 N.C. 430, 146 S.E.2d 410 (1966). Terms such as "resident" and "household" can have a variety of meanings depending upon the facts to which they must be applied. See, e.g. Barker v. Insurance Co., 241 N.C. 397, 85 S.E.2d 305 (1955); Fonvielle v. Insurance Co., 36 N.C.App. 495, 244 S.E.2d 736, disc. rev. allowed, 295 N.C. 465, 246 S.E.2d 215 (1978).

Cases interpreting the phrase, "residents of the same household," as used in insurance policies, are legion. See generally Annot., 93 A.L.R.3d 420 (1979) (liability insurance); Annot., 96 A.L.R.3d 804 (1979) (no-fault and uninsured motorist provisions). These cases can be divided into two categories: those involving clauses that exclude from coverage members of the insured's household, and those that extend coverage to such persons. Applying the general rule that coverage should be provided wherever, by reasonable construction, it can be, courts have restrictively defined "household" in those cases where members of the insured's household are excluded from coverage. On the other hand, where members of an insured's household are provided coverage under the policy, "household" has been broadly interpreted, and members of a family need not actually reside under a common roof to be deemed part of the same household. See, e.g. Bearden v. Rucker, 437...