John D. Waugh v. William A. Akers
| Decision Date | 25 January 1999 |
| Docket Number | 99-LW-0504,98 CA 21 |
| Parties | JOHN D. WAUGH, Plaintiff-Appellant v. WILLIAM A. AKERS, ET AL., Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
[1]COUNSEL FOR APPELLANT: Theresa A. Tarchinski, Amer Cunningham Brennan Co., L.P.A., 159 South Main Street, Sixth Floor, Key Building, Akron, Ohio 44308-1322.
COUNSEL FOR APPELLEE STATE FARM MUTUAL AUTOMOBILE INS. CO.: Mark A Preston, Fosson, Mann & Preston, 280 Yoctangee Parkway Chillicothe, Ohio 45601.
DECISION
This is an appeal from a summary judgment entered by the Lawrence County Common Pleas Court in favor of State Farm Mutual Automobile Insurance Company, defendant below and appellee herein, against John D. Waugh, plaintiff below and appellant herein.
Appellant assigns the following error:
"THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND ENTERING JUDGMENT IN FAVOR OF THE DEFENDANT STATE FARM INSURANCE COMPANY BASED UPON ITS DETERMINATION THAT THE PLAINTIFF-APPELLANT JOHN WAUGH WAS NOT AN INSURED UNDER HIS PARENTS' UNDERINSURED MOTORISTS COVERAGE THROUGH STATE FARM INSURANCE COMPANY."
On January 23, 1997, appellant filed the instant action alleging, in pertinent part, that he is entitled to recover under the underinsured motorist and medical payment provisions of the policy between his parents and appellee, for injuries he suffered in an automobile accident on July 14, 1996. The accident occurred when William Akers was driving appellant's parents' automobile without their permission. Appellant, a passenger in the automobile, suffered a traumatic amputation of his left leg below the knee when the automobile struck an embankment and rolled over several times.
At the time of the accident, appellant was nineteen years old and had been living in a house trailer with his wife[2] and her young child for approximately five months. Appellant's older brother had previously purchased the trailer, moved it onto their parents' property, and lived in it with his wife and children. Appellants' parents live in a house on the same property. The house and the trailer share a mailbox, yard, and driveway.
When questioned by appellee's claims specialist Tamara S. Basham, appellant stated in pertinent part as follows regarding his parents, the house, and the trailer:
A. No.
Q. Okay.
A. We do.
Q. You and Jennifer [appellant's wife]?
A. Right.
Appellant's mother, in her deposition, testified in pertinent part as follows concerning appellant's living arrangements:
Q. Who did John live with at the time of the accident?
A. He lived in the trailer at the time of the accident.
Q. With whom?
A. Huh?
Q. With whom?
A. With his wife, Jennifer.
Q. And it had been about six (6) months since he had lived with you and your husband?
A. Probably.
Q. Okay. In your mind was that to be a permanent arrangement that he would have his own house?
A. Yes.
Q. His own home?
A. Right."
Appellant's father, in his deposition, testified in pertinent part as follows that appellant was not living with him
at the time of the accident:
"Q. Okay. After John moved into the trailer did you have any intention that he would move back home with you and your wife?
A. No.
Q. Any why is that?
A. Right.
Q. On his own?
A. It was time for him to go, you know, but it's hard to get him moving."
Appellant and his father disagreed about whether appellant and his wife paid rent and utilities for the trailer. Appellant, in his deposition, testified that he and his wife paid $150 per month rent and utilities for the trailer. Appellant's father, in his deposition, testified that appellant and his wife did not pay rent and most of the time did not pay utilities. Appellant's father further testified that the trailer has its own electric and water hookups, which are listed in his name rather than appellant's name.
At the time of the automobile accident, appellant and his parents had separate automobile insurance policies. Appellant had an automobile insurance policy with Progressive Insurance Company, which has tendered its $13,500 policy limit to appellant as a result of the accident. Appellants' parents had an automobile insurance policy with appellee.
In this action, appellant seeks to recover from the underinsured motorists and medical payments provisions in his parents' policy with appellee. The uninsured/underinsured motorists provisions of that policy provide in pertinent part as follows:
1. the first person named in the declarations;
2. his or her spouse;
3. their relative; and;
* * *"
The policy defines "relative" as follows:
(Emphasis added.)
The policy does not define the phrase "lives primarily with you." Appellant claims he qualifies as an insured under his parents' policy because he "lives primarily with" his parents.
On March 31, 1998, appellant filed a motion for summary judgment. In his memorandum in support of the motion, appellant argued that "the only determination to be made by this Court is what the language `lives primarily with you' means." Appellant noted that the insurance policy between his parents and appellee does not define the term "primarily." After reciting the facts of this particular case, appellant asserted that the phrase "lives primarily with you" could reasonably be defined "as a relative who spends much or most of their time in the home of the named insured for a period of some duration or regularity."
In support of his argument that he "lives primarily with" his parents, appellant noted that he has "sometimes" slept, ate, watched television, and stored possessions in his parents' home. When asked how often he slept at his parents' home before he and his wife were married, he answered, "Not often, just a few times." Appellant's mother, in her deposition, explained that the possessions that appellant stored in her home were "things hanging on the wall that kids just don't want in their own home but mom'll take care of it, you know, stuff like that." Appellant, in his deposition, explained that he stored at his parents' home "just personal belongings that I didn't have room for, such as big dressers and my gun cabinet and stuff like that." Appellant admitted that although he sometimes ate with his parents, he had separate kitchen and cooking facilities in his trailer.
On May 27, 1998, the trial court entered judgment denying appellant's motion for summary judgment. The trial court wrote that "[t]he defining point of this decision rests upon the meaning of `lives primarily with you.'" After finding that dictionaries define the word "primarily" as meaning "first," "chiefly," and "principally," the trial court concluded that the evidence in the case reveals that appellant does not live primarily with his parents. The court wrote in pertinent part as follows:
On June 22, 1998, the trial court entered a nunc pro tunc
judgment granting summary judgment to appellee. The trial court
wrote in pertinent part as follows:
"It is the further finding of the Court that although defendant State Farm Mutual Automobile Insurance Company (hereafter State Farm) did not move for summary judgment, that no issue as to any material fact exists, that the Court's findings are determinative of the dispute between plaintiff and defendant State Farm, and accordingly defendant State Farm is entitled to judgment herein as a matter of law."
Appellant filed a timely notice of appeal.
said party being entitled to have the evidence construed most strongly in his favor. Turner v....
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