Merrimack Mutual Fire Insurance Company v. Almeida, No. 02-0017-A (Mass. Super 2/20/2004)
| Decision Date | 20 February 2004 |
| Docket Number | No. 02-0017-A,02-0017-A |
| Parties | MERRIMACK MUTUAL FIRE INSURANCE COMPANY, Plaintiff, vs. GILBERTO ALMEIDA, LEONTINA ALMEIDA, and SUSAN ALMEIDA as ADMINISTRATRIX OF THE ESTATE OF ADRYANNA ALMEIDA, Defendants. |
| Court | Massachusetts Superior Court |
DAVID A. LOWY Justice of the Superior Court.
On July 9, 2001, Susan Almeida ("Susan") as administratrix of the estate of her daughter Adryanna Olivier ("Adryanna"), brought a wrongful death action against her parents and Adryanna's grandparents, Gilberto and Leontina Almeida ("grandparents"). The grandparents, along with Adryanna's Aunt, Zita Almeida ("Zita"), were acting as foster parents to Adryanna when she died. Adryanna's death allegedly resulted from injuries caused by a near drowning at her grandparents' swimming pool on July 9, 1998.1
Plaintiff, Merrimack Mutual Fire Insurance Company ("Merrimack"), brought this action against the grandparents and Susan as Administratrix (collectively referred to as "the defendants"), seeking a declaratory judgment regarding the terms of an insurance policy it issued covering the grandparents' home ("the policy"). Specifically, Merrimack seeks a declaration that the policy provision excluding coverage for "an insured" within the grandparents' household bars recovery against it for Adryanna's injuries.
Merrimack now seeks summary judgment as to the same issue. The material facts are undisputed. The issue before the court is whether Adryanna was an insured member of the household. Because this Court concludes that Adryanna was an insured resident of her grandparents' household, and therefore not covered by the policy, Merrimack's motion for summary judgment will be ALLOWED.
In January 1998, following a drug raid in Susan's home, the Massachusetts Department of Social Services ("DSS") removed Adryanna and her brothers ("the children") from Susan's custody. By the end of that month, the children were in the custody of Adryanna's maternal grandparents, Gilberto and Leontina Almeida, and her maternal Aunt, Zita Almeida. The Almeidas assumed custody of the children pursuant to a DSS care and protection petition. The arrangement was formalized in "An Agreement Between the Massachusetts Department of Social Services and Foster Parents." That agreement required Adryanna's grandparents, with Zita's help, to provide the children a "safe, nurturing, and stable environment" and to promote their grandchildren's "physical, mental, and emotional well-being." At all times, DSS' hope was to reunite the children with Susan eventually.
Despite that goal, as indicated in the "DSS Family Resource Assessment Narrative," the Almeidas "love[d] their grandchildren and w[ould] care for them as long as need be." Indeed, the Almeidas were "committed to providing a permanent home for the children." Not surprisingly, considering that Adryanna's sister Alycea was already living with them without any official intervention, DSS considered the Almeidas "a very close family [who were] happy to have the children in their home."
Tragically, on July 16, 1998, nearly seven months after she moved in with her grandparents, Adryanna died allegedly as a result of a swimming pool accident at her grandparents' home. At the time of her death, DSS had no definite plan terminate the foster care relationship with the Almeidas. No date had been set to reunite Adryanna and Susan, and the next scheduled district court review date was more than a month away, on August 27, 1998. A DSS "Foster Care Review Report" dated June 26, 1998, less than a month before the accident, indicates that Susan had made That same report, while continuing DSS' commitment to reunification, did not set a firm date for that event. Rather, DSS merely projected that reunification would occur by December 1998. Even if that date proved accurate, Adryanna would have been living with her grandparents for nearly a full year.
During the relevant time period, Adryanna's grandparents were covered by a homeowners insurance policy issued by Merrimack. That policy excluded coverage for "`bodily injury' to . . . `an insured.'" As defined by the policy, an insured includes "residents of [the grandparents'] household who are . . . relatives or . . . [o]ther persons under the age of 21 and in the care of any person named above." Merrimack asserts that Adryanna is insured under the policy and that coverage for her injuries is therefore excluded.
Summary judgment shall be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Exclusions for the coverage for bodily injury to an insured are generally valid and enforceable. See Hahn v. Berkshire Mut. Ins. Co., 28 Mass. App. Ct. 181, 185 (1989). The determinative issue is whether Adryanna was a resident, and therefore an insured, under the policy. If she was not, then Merrimack is bound to cover her injuries. If she was, then coverage is excluded. This is a question of law. See Vaiarella v. Hanover Ins. Co., 409 Mass. 523, 526 (1991) (citing Marlow v. New Bedford, 369 Mass. 501, 508 (1976); Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396, 397 (1980)).
Whether Adryanna was an insured turns upon whether she was a resident of her grandparents' home. The defendants assert that the policy term "resident" is ambiguous and, therefore, must be construed against the insurer. Interstate Gourmet Coffee Roasters, Inc. v. Seaco Ins. Co., 59 Mass. App. Ct. 78 (2003). While it is true that there is no fixed meaning for the term "resident" in every context, Vaiarella, 409 Mass. at 527-528, in this case, the meaning is clear. "When construing undefined words in an insurance policy, a court must give the words used in the contract their plain and ordinary meaning." Prudential Prop. & Cas. Ins. Co. v. LaMarr, 92 Ohio App. 3d 331, 334, 635 N. E. 2d 63, 64 (Ohio App. 9 Dist. 1993). Residence is defined as "[t]he act or fact of living in a given place for some time." Black's Law Dictionary, 1310 (7th ed. 1999 ). The term is therefore unambiguous. Under this "plain meaning and common understanding of the word `resident,'" Adryanna was a resident of her grandparents' household. LaMarr, 92 Ohio App. 3d at 334, 635 N. E. 2d at 64. See also, Merchants Mut. Ins. Co. v. Artis, 907 F. Supp. 886, 890 (E. D. Penn. 1995); Jenks v. Louisiana, 507 So. 2d 877 (La. 1987).
Determining whether an individual is a resident of a particular household for purposes of insurance coverage is subject to roughly the same analysis as determining whether that individual is a member of that household. See, e.g., Annot., Who is a "Member" or "Resident" of Same "Family" or "Household" Within No-Fault Or Uninsured Motorist Provisions of Motor Vehicle Insurance Policy, 66 A.L.R. 5th 269 (1999). "There is no bright line test for the determination of a claimant's status as a household member." Gianely v. The Travelers Ins. Co., 1995 Mass. App. Div. 155, 156 (1995) (citing Vaiarella, 409 Mass. at 526 - 527 (1991)). However, the issue may be resolved by weighing the following four factors: (1) the nature of the relationship between the claimant and the named insured; (2) the claimant's physical presence in the insured home; (3) the claimant's financial dependence on the named insured; and (4) the intentions of the claimant and the named insured for the claimant to remain in the insured dwelling for a substantial period of time.2 When applying this test, "no one [factor] is controlling, but all . . . must combine to a greater or lesser degree." Farmers Ins. Co. of Arizona v. Oliver, 154 Ariz. 174, 178, 741 P.2d 307, 311 (Ariz. 1987); Easter as next friend of M.D.E. v. Providence Lloyds Ins. Co., 17 S.W. 3d 788, 791 (Tex. 2000). Each of these relevant factors is discussed, in turn, below.
The nature of the relationship between the named insured and the claimant in this case argues in favor of Adryanna's status as a resident. The Almeidas were responsible, as foster parents, for the care and support of Adryanna. This alone might be sufficient to find Adryanna a resident.3 The Almeidas' status as foster parents through DSS, however, does not begin to describe or encompass the relationship. The Almeidas were Adryanna's blood relatives. They were part of the same close family. Adryanna was not simply placed in a foster home; rather, she and her siblings were living with their aunt and grandparents. Particularly considering the fact that Alycea was already living in the grandparents' home, the relationship between Adryanna and the Almeidas was based more on their membership in the same family than it was on any DSS intervention or administration.
The second factor, physical presence, also supports Adryanna's status as resident. She was indisputably physically present in her grandparents' home. She was living with her grandparents, her aunt, and her siblings in the...
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