N.C. Farm Bureau Mut. Ins. Co. v. Paschal

• Decision Date: 07 January 2014
• Docket Number: No. COA13–615.,COA13–615.
• Citation: 752 S.E.2d 775
• Court: North Carolina Court of Appeals
• Parties: NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Plaintiff–Appellee, v. Wade H. PASCHAL, Jr., Guardian ad Litem for Harley Jessup; Reggie Jessup; Randall Collins Jessup; and Thurman Jessup, Defendants–Appellants.

752 S.E.2d 775

NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Plaintiff–Appellee,

v.Wade H. PASCHAL, Jr., Guardian ad Litem for Harley Jessup; Reggie Jessup; Randall Collins Jessup; and Thurman Jessup, Defendants–Appellants.

No. COA13–615.

Court of Appeals of North Carolina.

Jan. 7, 2014.

Appeal by Defendants from orders entered 30 November 2012 and 6 December 2012 by Judge G. Wayne Abernathy in Superior Court, Wake County. Heard in the Court of Appeals 22 October 2013.

Haywood, Denny & Miller, L.L.P., Durham, by Robert E. Levin, for Plaintiff–Appellee.

Moody, Williams, Roper & Lee, LLP, Siler City, by C. Todd Roper, for Defendants–Appellants.

McGEE, Judge.

Sixteen-year-old Harley Jessup (“Harley”) was injured on 15 April 2009 when a truck driven by her cousin, Randall Collins Jessup (“Randall”), ran off the road and into a ditch, causing Harley to be ejected from the truck. Harley, through her guardian ad litem Wade H. Paschal, Jr. (“Paschal”), and Harley's father, Reggie Jessup (“Reggie”), filed a complaint on 28 March 2012, alleging injury from the accident and medical expenses of $81,087.44. Randall's automobile insurance carrier tendered the $30,000.00 amount of its coverage. The 28 March 2012 complaint also included an underinsured motorist claim against an automobile policy (“the policy”) of Harley's paternal grandfather, Thurman Jessup (“Thurman”), which was issued by North Carolina Farm Bureau Mutual Insurance Company, Inc. (“Plaintiff”).

Plaintiff initiated the present action by filing a complaint for declaratory judgment on 25 May 2012. Paschal, as guardian ad litem for Harley, along with Reggie, Randall, and Thurman were all named defendants. In Plaintiff's complaint, Plaintiff asked the trial court to rule that Harley was not covered by the policy. Plaintiff moved for summary judgment on 4 October 2012. Harley, through Paschal, along with Reggie, Randall, and Thurman, moved on 30 October 2012 to change venue from Wake County to either Chatham County or Randolph County. The motion for change of venue was denied by order filed 30 November 2012. In an order filed 6 December 2012, the trial court concluded that Harley was “not a resident of [Thurman's] household on April 15, 2009, and [was] therefore not entitled to coverage under the policy[.]” Based upon this conclusion, the trial court granted summary judgment in favor of Plaintiff. Paschal, as guardian ad litem for Harley, and Reggie and Thurman (“Defendants”) appeal from the 30 October 2012 and the 6 December 2012 orders. Defendant Randall Collins Jessup is not a party to this appeal.

At the time of the accident, Thurman owned multiple houses and several hundred acres of farmland. Thurman and Reggie had owned a house together until the house burned in 2005. Harley lived with Reggie in that house for a short period after she was born. Thurman purchased a house at 6846 Brush Creek Road. (“Brush Creek house”) in 1983, and lived there until sometime in the early 2000s. Thurman also purchased a house at 6615 Joe Branson Road (“Branson house”) in 1997. The Branson house was approximately one mile from the Brush Creek house, and a person could walk from the Branson house to the Brush Creek house without leaving Thurman's property. Reggie and his children, including Harley, moved into the Branson house shortly after Thurman purchased it. In 2002, Thurman purchased a fifty percent interest in a house owned by his girlfriend, Donna Whitehead (“Ms. Whitehead”), located at 398 Browns Crossroads (“Browns Crossroads house”). After purchasing an interest in the Browns Crossroads house, Thurman spent most of his nights sleeping at either the Browns Crossroads house or the Brush Creek house. On rare occasions, Thurman would sleep at the Branson house.

Most of Thurman's mail, including bank statements, was sent to the Brush Creek house, and that is the address Thurman used for most official business, such as his tax returns and voter registration. The Brush Creek house was also where Thurman kept most of his clothing.

At his deposition, Thurman testified he owned over 100 head of cattle, approximately 4,000 hogs, and about 32,000 chickens, which were housed in different areas around his farm, including the Branson house, the Brush Creek house, and surrounding land. Thurman considered his farm to be a “family farm,” and several relatives lived and work on the farm. Reggie lived in the Branson house with Harley and her brothers. Harley had lived primarily at that address since she was a very young child. Thurman paid all the bills associated with the Branson house. Those bills were sent to Thurman's Brush Creek house. Reggie did not pay anything to live in the Branson house. Thurman even paid for Reggie's phone service.

For many years, Thurman had taken continued responsibility for multiple family members, and some people not related to him by blood or marriage. For example, at the time of his deposition, Thurman had two children, not related to either him or Ms. Whitehead, living with him. Thurman had taken the two children in nine years earlier because the children's father was often out of the state for work. When the children's father was in town, Thurman allowed him to stay in one of Thurman's houses free of charge. Ms. Whitehead's daughter and her two children also lived with Thurman and Ms. Whitehead. Harley and her brothers also lived with Thurman at times. Reggie had ongoing trouble with the law, and spent time in jail or prison on occasion. When Harley could not stay with Reggie due to Reggie's legal problems, she stayed with Thurman, at both the Browns Crossroads house and at the Brush Creek house. Around 2005, Harley spent a year living with Thurman because of Reggie's legal troubles. Thurman was appointed as Harley's guardian for that period of time. Harley's mother was not very involved in Harley's life, and did not appear to provide Harley with material assistance or much guidance.

Thurman testified he supported Harley through “every bit” of her life, providing food, clothes, housing, utilities, phone, and other expenses. Reggie drove a truck that belonged to Thurman and if something was needed for the Branson house, such as a washing machine, Thurman bought it. Thurman testified that when Harley was not living with him, he saw her two or three times a week. Harley testified she saw Thurman almost every day. Thurman had keys to all his houses, and felt free to enter them at any time. If Harley needed to go to the doctor or dentist, Thurman took her. When questioned at his deposition, Thurman agreed that Reggie, Harley, and her brothers were all a part of his household.

Plaintiff filed its complaint for declaratory judgment on 25 May 2012 and requested that the trial court “declare whether [Plaintiff's] UIM policy issued to Defendant Thurman Jessup [was] applicable to the claim of Harley Jessup.” Harley, through Paschal, and Reggie, answered Plaintiff's complaint on 3 August 2012, and counterclaimed, asking that the trial court “declare the UIM policy issued to defendant Thurman Jessup applicable to the claims of Harley and Reggie arising from the accident on or about April 15, 2009.” Plaintiff filed a motion for summary judgment on 4 October 2012. Defendants filed a motion on 30 October 2012 to change venue from Wake County to either Chatham County or Randolph County. The trial court denied Defendants' motion to change venue by order filed 30 November 2012. In an order entered 6 December 2012, the trial court granted Plaintiff's motion for summary judgment, ruling that Harley “was not a resident of the Defendant Thurman Jessup's household on April 15, 2009, and [was] therefore not entitled to coverage under the policy of UIM insurance issued by the Plaintiff to Defendant Thurman Jessup [.]” Defendants appeal.

I.

The issues in this appeal are whether (1) the trial court erred in denying Defendants' motion to change venue and (2) the trial court erred in granting summary judgment in favor of Plaintiff by ruling that Harley was not a resident of Thurman's household. We affirm in part and reverse and remand in part.

II.

Defendants acknowledge that Wake County was a proper venue for this action. However, Defendants argue the trial court abused its discretion by not changing venue to either Chatham County or Randolph County “for the convenience of witnesses and the promotion of justice.” We disagree.

The trial court is given broad discretion when ruling on a motion to change venue for the convenience of witnesses:

“ ‘[T]he trial court may change the place of trial ... [w]hen the convenience of witnesses and the ends of justice would be promoted by the change.’ ” However, the court's refusal to do so will not be disturbed absent a showing that the court abused its discretion. The trial court does not manifestly abuse its discretion in refusing to change the venue for trial of an action pursuant to subdivision (2) of [N.C. Gen.Stat. § 1–83] unless it appears from the matters and things in evidence before the trial court that the ends of justice will not merely be promoted by, but in addition demand, the change of venue, or that failure to grant the change of venue will deny the movant a fair trial.

....

In resolving this issue here, we do not set forth a “bright line” rule or test for determination of whether a trial court has abused its discretion in denying a motion to change venue. Rather, the determination of whether a trial court has abused its discretion is a case-by-case determination based on the totality of facts and circumstances in each case.

United Services Automobile Assn. v. Simpson, 126 N.C.App. 393, 399–400, 485 S.E.2d 337, 341 (1997) (citations omitted). Defendants fail to demonstrate that the trial court's discretionary ruling denying their motion to change venue denied them a fair trial, or that the ends of justice demanded a change of venue. Defendants simply argue that “it [was] more convenient for [Defend...