Gulf American Fire & Cas. Co. v. Azar

• Decision Date: 13 September 1978
• Citation: 364 So.2d 332
• Court: Alabama Court of Civil Appeals
• Parties: GULF AMERICAN FIRE & CASUALTY COMPANY v. William Dean AZAR, a minor who sues by and through his father and next friend, Zack Azar, Zack Azar, William Benjamin McGiffert. Civ. 1523.

Page 332

364 So.2d 332

GULF AMERICAN FIRE & CASUALTY COMPANY v. William Dean AZAR, a minor who sues by and through his father and next friend, Zack Azar, Zack Azar, William Benjamin McGiffert.

Civ. 1523.

Court of Civil Appeals of Alabama.

Sept. 13, 1978.

Rehearing Denied Oct. 18, 1978.

Henry C. Chappell, Jr., Montgomery, for appellant.

George B. Azar, Montgomery, for appellees.

BRADLEY, Judge.

Appellees (William Benjamin McGiffert, William Dean Azar and Zack Azar) filed suit against appellant (Gulf American Fire & Casualty Company) in the Circuit Court of Montgomery County. Appellees sought recovery for injuries sustained by McGiffert and William Dean Azar in an automobile collision with an uninsured motorist. Their suit was premised on an uninsured motorist provision contained in T. B. McGiffert's automobile insurance policy. T. B. McGiffert is the father of appellee-William Benjamin "Ben" McGiffert.

The issue presented for our determination is whether William Dean Azar and Ben McGiffert were excluded from coverage under a policy issued to the latter's father, T. B. McGiffert. The circuit court held that they were not excluded and granted a partial summary judgment in favor of appellees. We reverse.

T. B. McGiffert was divorced from his wife Katilou McGiffert Murchison on July 25, 1973. Under the terms of the divorce decree Mrs. Murchison was awarded custody of the couple's children including Ben McGiffert. The decree also permitted T. B. McGiffert reasonable visitation with the children and required him to furnish money for their support. The family residence remained in the joint ownership of T. B. McGiffert and Katilou McGiffert Murchison and was to be sold as soon as possible in order that the proceeds from the sale could be used to pay off certain outstanding loans. The wife was granted the right to occupy the family home until the sale and the husband was not to come onto the premises while the wife was residing there. Accordingly, T. B. McGiffert continued to live at the address where he had taken up residence prior to the couple's actual divorce. Finally, the divorce decree stipulated that the husband (T. B. McGiffert) was to provide "automobile insurance for as long as the Wife and minor children reside(d) in the family home. . . ."

The automobile accident which resulted in this dispute occurred on October 8, 1973. At the time of the accident seventeen year old Ben McGiffert was driving an automobile owned by a third person. Appellee-William Dean Azar was a passenger in the vehicle driven by McGiffert. The car containing McGiffert and Azar collided with a vehicle driven by an uninsured motorist and both McGiffert and Azar sustained injuries. It was undisputed that the negligence of the uninsured motorist caused the accident.

The uninsured motorist provision of the policy in question provides coverage with respect to a non-owned vehicle for the named insured or his relatives. However, the term "relative" in the policy is defined as "a relative of the named insured who is a resident of the same household." Thus, there is coverage only if Ben McGiffert was a resident of the same household as his father, T. B. McGiffert.

The circuit court found that the language "who is a resident of the same household" was ambiguous and, accordingly, that such language should be construed in favor of the insured. The court then concluded that Ben McGiffert and T. B. McGiffert were members of the same household.

Appellant-Gulf American contends that under the facts presented, the circuit court erroneously concluded that Ben McGiffert was a resident of his father's household. In support of its contention Gulf American relies on two Louisiana decisions which are factually similar to the instant case: Chapman v. Allstate Insurance Co., 306 So.2d 414 (La.App.1975); Ursin v. Oubre, 343 So.2d 1189 (La.App.1977).

Conversely, appellees rely on two Alabama cases, State Farm Mutual Automobile Insurance Co. v. Hanna, 277 Ala. 32, 166 So.2d 872 (1964) and Crossett v. St. Louis Fire & Marine Insurance Co., 289 Ala. 598, 269 So.2d 869 (1972), which held that terms such as "residing" or "residents" as used in policies referring to households of the named insured were ambiguous. ¹ Accordingly, both decisions found that such language should be construed in favor of the insured.

We believe that appellees' and the circuit court's reliance on Hanna and Crossett was misplaced. While we have no quarrel with the general proposition stated in those cases, we are of the opinion that even a favorable construction of ambiguous terms for the insured requires a factual basis. Indeed, the necessity of providing facts in support of a party's contention that he is or is not a resident of the same household as the named insured is clearly indicated by the opinions of former Justice Harwood in Hanna and Justice Bloodworth in Crossett. See Nationwide Mutual Insurance Co. v. Herren, Ala.Civ.App., 362 So.2d 253 (1978). In the present case there were simply no facts presented to the circuit court which would demonstrate that Ben McGiffert resided in the same household as his father, the named insured.

When the automobile accident which resulted in this dispute occurred, Ben McGiffert was living with his mother, Mrs. Murchison. T. B. McGiffert, the named insured, resided at an entirely different location. And although Ben McGiffert visited his father at the father's home, Mrs. Murchison testified by deposition that the visits did not include overnight stays. Furthermore, custody of Ben McGiffert had been awarded to Mrs. Murchison under the provisions contained in the decree divorcing her and her husband, and, consequently, Ben was a legal resident of his mother's household. See ...