Londre by Long v. Continental Western Ins. Co.

• Decision Date: 20 December 1983
• Docket Number: No. 83-335,83-335
• Citation: 343 N.W.2d 128,117 Wis.2d 54
• Parties: Glenn LONDRE, a minor, by his Guardian ad Litem, James R. LONG; Gerald Londre and Sandra Londre, his wife, parents and natural guardians of Glenn Londre, Plaintiffs-Respondents, v. CONTINENTAL WESTERN INSURANCE COMPANY, Defendant-Appellant, Robert J. Robinson, Badger Mutual Insurance Company and Richard Robinson, Rural Mutual Insurance Company and Kobussen Bus Company, Defendants. *
• Court: Wisconsin Court of Appeals

Page 128

343 N.W.2d 128

117 Wis.2d 54

Glenn LONDRE, a minor, by his Guardian ad Litem, James R LONG; Gerald Londre and Sandra Londre, his wife parents and natural guardians of Glenn Londre, Plaintiffs-Respondents, v. CONTINENTAL WESTERN INSURANCE COMPANY, Defendant-Appellant Robert J. Robinson, Badger Mutual Insurance Company and Richard Robinson, Rural Mutual Insurance Company and Kobussen Bus Company, Defendants.^*

No. 83-335.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 24, 1983.

Opinion Released Dec. 20, 1983.

Opinion Filed Dec. 20, 1983.

Gabert & Williams and Thomas L. Williams, Appleton, for defendant-appellant.

Herrling, Clark, Hartzheim & Siddall, Ltd., and Roger W. Clark, Appleton, for plaintiffs-respondents.

Before FOLEY, P.J., DEAN and CANE, JJ.

CANE, Judge.

Continental Western Insurance Company appeals the trial court's denial of its motion for summary judgment. The court held that Continental's homeowner's insurance policy, issued to Robert Robinson, covered the negligent acts of his son, Richard, because he was a resident of his father's household. The sole issue on appeal is whether Richard, a child of divorced parents, was a resident of his noncustodial father's household for insurance purposes at the time he injured Glenn Londre's eye. Under the particular circumstances of this case, we hold that, as a matter of law, Richard was not a resident of his father's household at the time of the negligent act.

Richard's parents were divorced in 1971, and his mother was granted legal custody of Richard. His father was granted reasonable visitation and was ordered to maintain health insurance coverage for Richard. Following the divorce, Richard's parents each remarried and established separate homes twenty miles apart. Richard's father exercised visitation rights occasionally on weekends and approximately two to four weeks in the summer, excluding weekends.

Both of Richard's parents obtained homeowner's insurance policies. His father's policy with Continental extended coverage to, "[i]f residents of the Named Insured's household, his spouse, the relatives of either, and any other persons under the age of twenty-one in the care of any insured."

Richard is alleged to have thrown a stick and severely injured Glenn Londre's eye in September, 1979. Richard was not visiting his father at the time, and the incident occurred on a school bus in his mother's hometown.

The trial court correctly held that the policy covered only residents of the named insured's household, and the issue on appeal is whether Richard was a resident of his father's household for insurance purposes at the time of the alleged negligent act. The court held that the phrase "resident of the Named Insured's household" was vague and ambiguous. It therefore construed the term "resident" in favor of coverage for Richard, see Stanhope v. Brown County, 90 Wis.2d 823, 849, 280 N.W.2d 711, 722 (1979), concluding that he was a resident of both parents' households.

Summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Section 802.08(2), Stats. In this case, the facts are undisputed. They were fully developed through depositions and stand uncontroverted. If the trial court's legal conclusion that Richard was covered by the Continental policy is in error, we must reverse. See Wright v. Hasley, 86 Wis.2d 572, 579, 273 N.W.2d 319, 322-23 (1979).

Words or phrases of an insurance policy are ambiguous when they are reasonably susceptible to more than one construction. Stanhope, 90 Wis.2d at 849, 280 N.W.2d at 722. Although ambiguities are to be construed against the insurer, in the absence of ambiguity a court cannot construe a policy to include coverage not agreed to by the parties. Mercado v. Mitchell, 83 Wis.2d 17, 25, 264 N.W.2d 532, 536 (1978).

A determination of whether a person is a resident of a household for insurance purposes requires a thorough examination of all relevant facts and circumstances and depends upon whether the person and the named insured are:

(1) living under the same roof; (2) in a close, intimate and informal relationship, and (3) where the intended duration of the relationship is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance or in their conduct in reliance thereon.

A.G. v. Travelers Insurance Co., 112 Wis.2d 18, 21, 331 N.W.2d 643, 645 (Ct.App.1983). The listing of these three factors, however, does not result in a mandatory threefold test. No single factor is the sole or controlling test of whether a person is a resident of a household. See Belling v. Harn, 65 Wis.2d 108, 113, 221 N.W.2d 888, 891 (1974). For example, members of a family need not actually reside under a common roof in order to be deemed part of the same household. Doern v. Crawford, 30 Wis.2d 206, 213, 140 N.W.2d 193, 196 (1966). The term "household" is defined as those who dwell under the same roof and constitute a family. Lontkowski v. Ignarski, 6 Wis.2d 561, 565, 95 N.W.2d 230, 232 (1959).

Additionally, our courts have recognized the difference between the meaning of "domicile" and "household." The material difference is that a domicile once acquired is not lost when a person leaves it, even though intending to never return, until he establishes a domicile elsewhere. On the other hand, physical absence coupled with intent not to return is sufficient to sever the absent person's membership in a household. Doern, 30 Wis.2d at 213, 140 N.W.2d at 196. Thus, while a person may have only one true domicile, he may have more than one household. We agree with jurisdictions concluding that a person may be a resident of more than one household for insurance purposes. See Miller v. United States Fidelity and Guaranty Co., 127 N.J.Super. 37, 316 A.2d 51, 55 (1974). Consequently, Richard could be a resident of two separate households for purposes of insurance coverage. The fact that he was a resident of his custodial mother's household does not, as a matter of law, preclude a finding that he was also a resident of his father's household.

Over the years, many jurisdictions have been faced with similar problems of deciding whether, on a given set of facts, individuals are residents or members of a particular household. In each case, the decision has depended upon the particular factual circumstances. See 93 A.L.R.3d 438-43 (1979) and 96 A.L.R.3d...