McLeod v. Allstate Ins. Co., 1999-CA-02080-SCT.

• Decision Date: 28 June 2001
• Docket Number: No. 1999-CA-02080-SCT.,1999-CA-02080-SCT.
• Citation: 789 So.2d 806
• Parties: Robert McLEOD, Jr., v. ALLSTATE INSURANCE COMPANY.
• Court: Mississippi Supreme Court

789 So.2d 806

Robert McLEOD, Jr., v. ALLSTATE INSURANCE COMPANY.

No. 1999-CA-02080-SCT.

Supreme Court of Mississippi.

June 28, 2001.

M. Ronald Doleac, Hattiesburg, Attorney for Appellant.

William C. Griffin, J. Wriley McKeown, Attorneys for Appellee.

EN BANC.

McRAE, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Aggrieved from the denial of uninsured motorist benefits by his insurance carrier, Allstate Insurance Company (Allstate), Robert McLeod, Jr., ("McLeod"), brings this appeal raising the issue of whether his minor daughter was a resident of his household and charges that the trial court erred by granting summary judgment to Allstate. Finding that McLeod presented sufficient facts that his daughter, Matia, was a resident of his household and therefore, also an insured under his insurance policy, we reverse the judgment of the trial court and remand this case for a trial on the merits.

I. Facts

¶ 2. Matia McLeod ("Matia"), the twenty-year-old daughter of Robert McLeod, Jr., ("McLeod"), was severely injured in an automobile accident on March 23, 1995, subsequently dying of her injuries on March 28, 1995. The accident was an alleged hit-and-run accident, and McLeod petitioned his insurance carrier, Allstate Insurance Company, ("Allstate"), for uninsured motorist benefits under his insurance policy claiming that Matia was also a resident at his household. Allstate denied that Matia was an "insured" as defined by the policy and refused these benefits. In response to McLeod's resulting lawsuit, Allstate filed a motion for summary judgment, and McLeod responded with a cross-motion for summary judgment. Allstate was granted summary judgment by the Circuit Court of Covington County on August 10, 1999. It is from this order and grant of summary judgment that McLeod now appeals.

¶ 3. Allstate denied that Matia was an "insured" as defined by its policy, stating that she was not a resident of her father's household as she had an apartment in Jackson, Mississippi. McLeod's home is in Collins, Mississippi.

¶ 4. Matia had moved from her father's home at 315 Rebecca Road, Collins, Mississippi, to Jackson, Mississippi, in June of 1994 to attend college. However, Matia still maintained a room at her father's home and kept personal belongings such as clothing, photographs, and stuffed animals there. McLeod continued to provide financial support to Matia in the form of rent, tuition, and money for groceries and other expenses.

¶ 5. It is undisputed that Matia's Jackson address at the time of her death was 515/517 Mitchell Avenue, Jackson, Mississippi, 39216. From June 1994 to March 1995, she lived in a duplex with her boyfriend, Dextrous Lashou Barnett¹ ("Dextrous"). Matia enrolled in Holmes Junior College in the fall of 1994 and in September 1994, she withdrew from the college and listed her reason as, "moving out of town (to Collins)."

¶ 6. The trial court erred in granting summary judgment to Allstate. McLeod did present triable issues of fact to the trial court, which should have been submitted to a jury to decide on the merits. This matter is therefore reversed and remanded to the trial court for a jury trial to determine the merits.

II. Standard of Review

¶ 7. This Court conducts a de novo review of awards of summary judgment by the trial courts. Canizaro v. Mobile Comms. Corp. of Am., 655 So.2d 25, 28 (Miss.1995) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss. 1988)).

III. Law

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO ALLSTATE.

¶ 8. The trial court erred in granting summary judgment to Allstate because there was evidence presented by McLeod that showed a dispute as to material facts. Summary judgment is inappropriate where there are undisputed facts which are susceptible to more than one interpretation. Canizaro, 655 So.2d at 28. If the undisputed facts can support more than one interpretation, then this Court, "will not hesitate to reverse and remand for a trial on the merits." Id.

¶ 9. The terms of Allstate's insurance policy are subject to more than one interpretation, despite the inclusion of definitions in its policy. The Allstate Automobile Policy, page 15, "Part V, Uninsured Motorists Insurance, Coverage SS," defines an "insured person" as

1. You and any resident relative.

(emphasis in original). This policy further defines a "resident" as,

a person who physically resides in your household with the intention of continuing residence there. Your unmarried dependent children while temporarily away from home will be considered residents if they intend to resume residing in your household.

(emphasis in original).

¶ 10. In addition, Mississippi has developed an Uninsured Motorist Act, Miss. Code Ann. §§ 83-11-101 through XX-XX-XXX (1991 & Supp.2000). Miss.Code Ann. § 83-11-101(1) states the following:

No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law....

The Act also defines "insured" in Miss. Code Ann. § 83-11-103(b) as the following,

The term "insured" shall mean the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above. The definition of the term "insured" given in this section shall apply only to the uninsured motorist portion of the policy.

¶ 11. A similar case, Aetna Cas. & Sur. Co. v. Williams, 623 So.2d 1005, 1006 (Miss.1993), held that the decedent son, a nineteen-year-old unemancipated minor child of divorced parents, could be considered a "resident" of both parents' homes for purposes of the Uninsured Motorist Act. Under the insurance policy of the non-custodial parent, the estate of the decedent was allowed to receive the appropriate uninsured motorist benefits arising from his death. In addition, neither the car in which the decedent was a passenger nor the other vehicle involved were covered by liability insurance. The son's mailing address at the time of the accident was at the home of his custodial parent, his mother, but he kept personal belongings and maintained a bedroom at the homes of both parents. Id.

¶ 12. Aetna compared the policy provisions with the statutes of the Uninsured Motorist Act and stated that, "we consistently have held that the language of the Mississippi Uninsured Motorist Coverage Act `must be construed liberally to provide coverage and strictly to avoid or preclude exceptions or exemptions from coverage.'" Id. at 1008-09 (citing Harris v. Magee, 573 So.2d 646, 651 (Miss.1990)) (citing Washington v. Georgia Am. Ins. Co., 540 So.2d 22, 24 (Miss.1989); Wickline v. United States Fid. & Guar. Co., 530 So.2d 708, 711 (Miss.1988); Stevens v. United States Fid. & Guar. Co., 345 So.2d 1041, 1043 (Miss. 1977); accord Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 440 (Miss. 1989)

; Parker v. Cotton Belt Ins. Co., Inc., 314 So.2d 342, 344 (Miss.1975)).

¶ 13. The analysis applied in Aetna is also applicable to the present case. In Aetna, we concluded that a broad reading of the term "resident" was appropriate and in keeping with the intent of the legislature, which in defining an "insured," chose the more inclusive term, "residence" as opposed to "domicile." Id. at 1009. A person may have only one domicile at a time. However, we have held that a person may have multiple residences simultaneously. Id. (citing In re Estate of Burshiem, 483 N.W.2d 175, 180 (N.D.1992); In re Marriage of Tucker, 226 Cal.App.3d 1249, 277 Cal.Rptr. 403, 408 (1991); Laufer v. Hauge, 140 A.D.2d 671, 528 N.Y.S.2d 878, 879 (N.Y.App.Div.1988); Mutual Service Cas. Ins. Co. v. Olson, 402 N.W.2d 621, 624 (Minn.Ct.App.1987); Davis ex rel. Davis v. Maryland Cas. Co., 76 N.C.App. 102, 331 S.E.2d 744, 746 (1985); Gowins v. Gowins, 466 So.2d 32, 35 (La.1985)).

¶ 14. Once established, a person's domicile remains intact "absent a clear indication of intent to abandon the existing domicile and to establish another." Aetna, 623 So.2d at 1009 (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29, 46 (1989) (person can reside at one place but be domiciled at another) (citations omitted)). However, residency is a more flexible concept, and permanency is not a requirement for residency. Even a temporary and transient place of dwelling can qualify. Id. at 1010 (citing Huffman v. Huffman, 232 Neb. 742, 749, 441 N.W.2d 899, 904-05 (1989); In re Brown, 132 Misc.2d 811, 815, 505 N.Y.S.2d 334, 338 (N.Y.Sur.1986)). In addition, we have held that a minor is "legally unable" to establish a residence separate and apart from their parents. Aetna, 623 So.2d at 1011-12.

¶ 15. We have further held in Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 868-69 (Miss.1995), that a married couple temporarily residing with their respective parents prior to their moving to a new home, were eligible to recover uninsured motorists benefits under insurance policies issued to their parents. Ronald and Sara Johnson were injured in an accident with an uninsured motorist, while each spouse was temporarily living with their respective parents to attend to personal affairs prior to moving to their new home together. Even in this case, temporary residence was sufficient to establish a claim for uninsured motorist benefits under the policy of a parent.

¶ 16....