Nodak Mut. Ins. Co. v. Eric Bahr-Renner, Sara Daede, Ashley Collins, Billie Rauser, Kenneth Mccoy, Con-Way Freight, Inc.
| Decision Date | 20 February 2014 |
| Docket Number | No. 20130091.,20130091. |
| Citation | 2014 ND 39,842 N.W.2d 912 |
| Court | North Dakota Supreme Court |
| Parties | NODAK MUTUAL INSURANCE COMPANY, Plaintiff and Appellee v. Eric BAHR–RENNER, Sara Daede, Ashley Collins, Billie Rauser, Kenneth McCoy, Con–Way Freight, Inc., Emily Young, J.C., a minor child, and Peggy Gwyther, deceased, Defendants Eric Bahr–Renner, Sara Daede, Ashley Collins, J.C., a minor, Emily Young, and Kenneth McCoy, Appellants. |
OPINION TEXT STARTS HERE
William P. Harrie, Fargo, N.D., for plaintiff and appellee.
Duane A. Lillehaug, Fargo, N.D., for appellants Eric Bahr–Renner, Sara Daede, Ashley Collins, J.C., a minor, and Emily Young.
Tatum O. Lindbo (appeared) and Timothy M. O'Keeffe (on brief), Fargo, N.D., for appellant Kenneth McCoy.
[¶ 1] Eric Bahr–Renner, Sara Daede, Ashley Collins, J.C. (a minor), Emily Young, and Kenneth McCoy (collectively “claimants”) appeal from a judgment that only the lower, “step-down” policy limits in an automobile insurance policy were available for their damages sustained in an automobile accident. We affirm, concluding the district court's finding of fact that Mary Gwyther was not a resident of her mother's household was not clearly erroneous and the step-down endorsement to the insurance policy did not violate North Dakota law.
[¶ 2] On January 14, 2010, Mary Gwyther was in a multi-vehicle accident while driving a pickup she co-owned with her mother, Peggy Gwyther, who died in the accident. The claimants allegedly suffered injuries and property damage as a result of the accident.
[¶ 3] The Gwyther vehicle was insured under a policy issued by Nodak Mutual Insurance Company (“Nodak”). The policy was issued to Peggy Gwyther as the named insured and carried bodily injury liability limits of $100,000 for each person and $300,000 for each accident. The policy included a “step-down” endorsement which reduced the bodily injury policy limits to the statutory minimum of $25,000 per person and $50,000 per accident, and $25,000 for property damage, if the vehicle was being driven by an insured who was not a “family member” of the named insured. “Family member” was defined in the policy as a person related to the named insured who was a resident of the named insured's household.
[¶ 4] Peggy Gwyther lived in a home she co-owned with Mary Gwyther in Bismarck. Although Mary Gwyther was listed as a co-owner of the Bismarck property, she had never actually lived in the home, and had not lived with her parents since 1972. Mary Gwyther had been living in Switzerland since 2000. She owned a business in Switzerland, owned and insured a vehicle there, and had a Swiss driver's license and residence permit. In 2008 and 2012, however, Mary Gwyther voted by absentee ballot in North Dakota as a resident, declaring in applications and affidavits that she was a resident at her mother's Bismarck address. She also designated the Bismarck address as her permanent home address with the State Department.
[¶ 5] Nodak brought this interpleader action seeking a declaration it is only liable to pay the reduced step-down policy limits because Mary Gwyther was not a resident of Peggy Gwyther's household at the time of the accident and therefore was not a “family member” under the policy. The case was tried as a bench trial on stipulated facts. The district court found Mary Gwyther was not a resident of Peggy Gwyther's household, concluded the policy did not violate North Dakota law, and concluded Nodak was required to pay only the lower step-down policy limits.
[¶ 6] The claimants argue the district court erred in ruling Mary Gwyther was not a resident of her mother's Bismarck household on the day of the accident.
[¶ 7] When a case is tried before a district court on the basis of stipulated facts or documentary evidence, this Court reviews the court's findings of fact under the clearly erroneous standard of review of N.D.R.Civ.P. 52(a). See Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, ¶ 9, 583 N.W.2d 817;State ex rel. Spaeth v. Eddy Furniture Co., 386 N.W.2d 901, 902 n. 3 (N.D.1986); Stracka v. Peterson, 377 N.W.2d 580, 582 (N.D.1985). The determination of whether an individual is a “resident” is a question of fact. Dietz v. City of Medora, 333 N.W.2d 702, 704 (N.D.1983). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Maddock v. Andersen, 2013 ND 80, ¶ 8, 830 N.W.2d 627.
[¶ 8] The Nodak insurance policy provided that “any ‘family member’ ” was not subject to the lower, step-down policy limits but was entitled to the same amount of coverage as the named insured. The policy defined “ ‘Family member’ ” as “a person related to you by blood, marriage or adoption, including a ward or foster child, who is a resident of your household.” Although this Court has encountered similar language in previous insurance cases, see, e.g., Schleuter v. Northern Plains Ins. Co., Inc., 2009 ND 171, ¶ 20, 772 N.W.2d 879;Center Mut. Ins. Co. v. Thompson, 2000 ND 192, ¶ 4, 618 N.W.2d 505;Close v. Ebertz, 1998 ND 167, ¶ 9, 583 N.W.2d 794;Johnson v. Center Mut. Ins. Co., 529 N.W.2d 568, 570 (N.D.1995); State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 238 (N.D.1992), we have not interpreted who falls within the meaning of the phrase “resident of your household” for purposes of an automobile insurance policy. However, the phrase is commonly used in both homeowners' and automobile insurance policies, and there is a substantial body of case law addressing the question. See, e.g., 8 L. Russ & T. Segalla, Couch on Insurance, §§ 114:12–114:16 (3rd ed.2005); C. MacWilliam, Annot., Who is “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); 43 Am. Jr.2d Insurance § 703 (2013).
[¶ 9] Numerous courts have ruled, as did this Court in LaRoque, 486 N.W.2d at 238, that the phrase “residing in the same household” is unambiguous. See, e.g., Farmers Ins. Co. v. Plunkett, 687 P.2d 470, 472 (Colo.Ct.App.1984); Engerbretsen v. Engerbretsen, 675 A.2d 13, 19 (Del.Super.Ct.1995); VanBebber v. Roach, 252 S.W.3d 279, 287 (Tenn.Ct.App.2007). Courts agree that determining whether an individual falls within the meaning of the phrase requires a case-specific analysis of the particular facts and circumstances, see, e.g., Midwest Mut. Ins. Co. v. Titus, 849 P.2d 908, 910 (Colo.Ct.App.1993); Farmers Auto. Ins. Ass'n v. Williams, 321 Ill.App.3d 310, 254 Ill.Dec. 231, 746 N.E.2d 1279, 1282 (2001); General Motors Acceptance Corp. v. Grange Ins. Ass'n, 38 Wash.App. 6, 684 P.2d 744, 746 (1984), and that determination of the issue is a question of fact. See8 Couch on Insurance, at § 114:12. Consequently, technical notions of legal residence and domicile are not controlling. See, e.g., Farmers Ins. Co. v. Oliver, 154 Ariz. 174, 741 P.2d 307, 312 (App.1987); Ehrhard v. State Farm Mut. Auto. Ins. Co., 274 So.2d 911, 916 (La.Ct.App.1973). We agree with the list of nonexclusive factors set forth by the West Virginia Supreme Court in Glen Falls Ins. Co. v. Smith, 217 W.Va. 213, 617 S.E.2d 760, 765 (2005), to consider in making the determination:
[I]n a homeowners' insurance policy [or an automobile insurance policy] that does not otherwise define the phrase “resident of your household,” the phrase means a person who dwells—though not necessarily under a common roof—with other individuals who are named insureds in a manner and for a sufficient length of time so that they could be considered to be a family living together. The factors to be considered in determining whether that standard has been met include, but are not limited to, the intent of the parties, the formality of the relationship between the person in question and the other members of the named insureds' household, the permanence or transient nature of that person's residence therein, the absence or existence of another place of lodging for that person, and the age and self-sufficiency of that person.
(quoting Farmers Mut. Ins. Co. v. Tucker, 213 W.Va. 16, 576 S.E.2d 261 (2002)). Other courts rely on similar factors. See, e.g., Oliver, 741 P.2d at 311;Titus, 849 P.2d at 910;Williams, 254 Ill.Dec. 231, 746 N.E.2d at 1282;Vierkant v. AMCO Ins. Co., 543 N.W.2d 117, 122 (Minn.Ct.App.1996); VanBebber, 252 S.W.3d at 288–89; 8 Couch on Insurance,at § 114:13, and cases collected therein.
[¶ 10] The record reflects that Mary Gwyther, who was 60 years old at the time of the accident, has been self-sufficient since the early 1970s and has not lived with her parents since 1972. Mary Gwyther'sparents purchased the Bismarck home in 1997 or 1998 and placed her name on the deed, as they had done with other family assets since she was one or two years old. Mary Gwyther moved to Switzerland in 1990 and lived there until 1996. Between 1997 and 2000 she lived in New Jersey and Singapore. She returned to Switzerland in 2000 and has lived there since. Mary Gwyther has owned a business in Switzerland since 2001, receives all of her mail in Switzerland, and pays business and income taxes there. She has not paid United States taxes since her last move to Switzerland, but paid North Dakota taxes in 2006 following a sale of property. Mary Gwyther owns a vehicle in Switzerland, where it is insured, licensed, and registered. She has a Swiss driver's license and has not had a North Dakota driver's license for approximately 30 years. Mary Gwyther's name was added to the title of the vehicle involved in the accident after her father died in 2006.
[¶ 11] Mary Gwyther is a United States citizen, has a United States passport, and has a Swiss residence permit. She voted in North Dakota by absentee ballot for the presidential elections in 2008 and 2012, listing her residential address as the Bismarck home. She testified in her deposition that ...
To continue reading
Request your trial
-
State v. Scott's Elec., Inc.
...supports it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Nodak Mut. Ins. Co. v. Bahr–Renner, 2014 ND 39, ¶ 7, 842 N.W.2d 912. “Whether a finding of fact meets a legal standard is a question of law, and questions of law are fully rev......
-
Nodak Mut. Ins. Co. v. Koller
...Andersons' household under Nodak's policy.[¶ 8] Before the district court entered judgment, this Court decided Nodak Mutual Ins. Co. v. Bahr–Renner, 2014 ND 39, 842 N.W.2d 912, a case in which we interpreted an identical "step-down" provision. After reviewing this Court's decision in Bahr–R......