Fonvielle v. South Carolina Ins. Co., 778SC546

• Decision Date: 06 June 1978
• Docket Number: No. 778SC546,778SC546
• Citation: 244 S.E.2d 736,36 N.C.App. 495
• Court: North Carolina Court of Appeals
• Parties: Lloyd M. FONVIELLE and wife, Barbara B. Fonvielle v. SOUTH CAROLINA INSURANCE CO., Roger Benton and Delores Benton.

Page 736

244 S.E.2d 736

36 N.C.App. 495

Lloyd M. FONVIELLE and wife, Barbara B. Fonvielle v. SOUTH CAROLINA INSURANCE CO., Roger Benton and Delores Benton.

No. 778SC546.

Court of Appeals of North Carolina.

June 6, 1978 Certiorari Allowed by Supreme Court July 14, 1978.

Taylor, Warren, Kerr & Walker by Robert D. Walker, Jr., Goldsboro, for defendants-appellants.

CLARK, Judge.

Under the terms of the automobile liability policy issued by defendant South Carolina Insurance Company to the named insured, Roger Benton, Sr., the operator of the automobile, Delores Benton, owned by her brother, Roger Benton, Jr., at the time of the collision on 22 December 1974, was an insured if (1) Delores Benton was a resident of the same household of the named insured, and (2) Roger Benton, Jr. was not a resident of the same household of the named insured.

The term "resident" is not defined in the insurance policy. Such term, if not defined, is capable of more than one definition and is to be construed in favor of coverage. Insurance Co. v. Insurance Co., 266 N.C. 430, 146 S.E.2d 410 (1966), has made this rule of construction clear:

"When an insurance company, in drafting its policy of insurance, uses a 'slippery' word to mark out and designate those who are insured by the policy, it is not the function of the court to sprinkle sand upon the ice by strict construction of the term. All who may, by any reasonable construction of the word, be included within the coverage afforded by the policy should be given its protection. If, in the application of this principle of construction, the limits of coverage slide across the slippery area and the company falls into a coverage somewhat more extensive than it contemplated, the fault lies in its own selection of the words by which it chose to be bound." 266 N.C. at 437-8, 146 S.E.2d at 416.

But a rule of construction cannot supply a material element even in the case of a "slippery" term as long as the term has some meaning. Jamestown considered "resident" a slippery term but was able to give some definition to its material elements. Intent to remain at a place seems determinative, although not intent to remain permanently. It is clear that the intent necessary to show residence is not that necessary to show domicile. Jamestown, supra; Newcomb v. Insurance Co., 260 N.C. 402, 133 S.E.2d 3 (1963). Jamestown, supra, citing 17A Am.Jur., Domicile, § 9, has it:

""'Residence" has many shades of meaning from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence, in which event intent is material. " Residence," as a legal term, is something more than the mere actual presence in a locality, even where it is not equivalent to domicile.

'Any place or abode or dwelling place constitutes a residence, however temporary it may be, while the term "domicile" relates rather to the legal residence of a person or his home in contemplation of law.' " (Emphasis added.) 266 N.C. at 437, 146 S.E.2d at 415. Also see 25 Am.Jur.2d, Domicil, § 4.

In Jamestown, supra, an adult son, staying at his father's house until he found a place more suitable for his new job, was deemed a resident of his father's house. Newcomb, supra, emphasizing that residency is determinable on the basis of conditions existing at the time the accident occurs, considered a husband and wife, staying with the wife's mother until one of the adult sons returned, residents of the mother's household even though the couple had a cottage-home elsewhere.

The evidence relating to the residency of defendant Delores Benton was conflicting. But in light of the foregoing decisions we find the evidence sufficient to support the finding of the trial court that Delores Benton was a resident relative of the household of the named insured, her father Roger Benton, Sr.

But the only evidence which speaks to the issue of whether Roger Benton, Jr., was a resident of the household was Delores Benton's testimony that her bro...