Grange Mut. Cas. Co. v. Brinkley

• Decision Date: 19 March 1987
• Docket Number: No. 73695,73695
• Parties: GRANGE MUTUAL CASUALTY COMPANY v. BRINKLEY.
• Court: Georgia Court of Appeals

Page 767

355 S.E.2d 767

182 Ga.App. 273

GRANGE MUTUAL CASUALTY COMPANY v. BRINKLEY.

No. 73695.

Court of Appeals of Georgia.

March 19, 1987.

Richard A. Rominger, Randolph H. Donatelli, Savannah, for appellant.

Carmel W. Sanders, Karen D. Barr, John T. Woodall, Savannah, for appellee.

BANKE, Presiding Judge.

The appellant, Grange Mutual Casualty Company, issued three policies of motor vehicle accident insurance to the appellee, Durwood B. Brinkley. While these policies were in effect, Mr. Brinkley's minor daughter, Debra, sustained severe injuries in a collision which occurred while she was riding as a passenger on an uninsured motorcycle being operated by her boyfriend, Leo Peloquin. Grange sought a declaratory judgment to the effect that Debra was not a resident of her father's household when this accident occurred and thus was not entitled to recover either "no-fault" or uninsured motorist benefits under the terms of the policies. We granted an interlocutory appeal from the denial of the company's motion for summary judgment in this action.

Debra's parents were divorced in 1978, at which time she began living, pursuant to court order, in the legal custody of her mother. In February of 1982, her mother signed a document purporting to relinquish custody to the father, for the stated reason that Debra's behavior had become "completely uncontrollable, and I have exhausted all of my resources to help her." Debra resided with her father until September of 1982, when she began living with Mr. Peloquin. She continued to live with Mr. Peloquin until August 14, 1983, the date of the accident. Upon her release from the hospital following the accident, she returned to her father's home.

When Debra left her father's house to live with Mr. Peloquin, she left behind her television set, her stereo, and some of her clothing, all of which remained in what had been her bedroom. On several occasions during the course of the following year, she and her father discussed the possibility of her returning to his house to live. Her father told her during these discussions that she was free to return at any time, but only if she agreed to attend school, study, maintain a more pleasant attitude at home, and cease seeing Mr. Peloquin. Although Debra apparently indicated to her father more than once that she intended to return to his home and abide by these rules, she never actually attempted to do so. Throughout this period, the father's then--wife, Tammy Brinkley, continued to list Debra as a beneficiary under her group health insurance coverage.

In the uninsured motorist coverage provisions of the three automobile insurance policies issued to Mr. Brinkley by the appellant insurance company, the term "insured" is defined, in pertinent part, to mean "the named insured and, while residents of the same household, his spouse and the relatives of either ..." (Emphasis supplied.) In the personal injury protection, or "no-fault," provisions of the policy, the term "eligible insured person" is defined in pertinent part, to mean "the named insured or any relative"; and the term "relative" is defined to mean "the spouse or any other person related to the named insured by blood, marriage, or adoption ... who is a resident of the same household as the named insured, whether or not temporarily residing elsewhere." (Emphasis supplied.)

In support of its contention that Debra was not covered by the policy at the time of the accident, the insurance company relies on Robertson v. Lumbermen's Mut. Cas. Co., 160 Ga.App. 52, 53, 286 S.E.2d 305 (1981), wherein this court held that "[t]he ordinary and accepted meaning of the phrase 'one residing in the same household' in an insurance policy, pertains to one who physically maintains permanent or frequently utilized living accommodations in the principal insured's home." Mr. Brinkley, on the other hand, relies on Davenport v. Aetna Cas., etc., Co., 144 Ga.App. 474, 475, 241 S.E.2d 593 (1978), wherein this court, citing State Farm., etc., Ins. Co. v. Snyder, 122 Ga.App. 584, 586, 178 S.E.2d 215 (1970), held that " '[a] common roof is not the controlling element.' [Cit.] It is rather a conclusion based on the aggregate details of the living arrangements of the parties." The trial court, "mindful of the seeming opposite results reached" in these two cases, concluded that the facts of the present case were more similar to those in Davenport than to those in Robertson and, noting the evidence that a portion of Debra's belongings had remained in her father's home while she was living with Peloquin, ruled that the insurance company had failed to establish as a matter of law that Debra was not a resident of her father's household at the time of the accident. Held:

We agree with the trial court that, since the "no-fault" provisions of the three policies specifically provide coverage for any relative who is a member of the named insured's household, "whether or not temporarily residing elsewhere," the Robertson test of maintaining "permanent or frequently utilized living accommodations in the principal insured's home" is clearly inapplicable to that claim. We also agree with the trial court that...