Pierce v. Aetna Cas. & Sur. Co., 8062-8-I

• Decision Date: 20 April 1981
• Docket Number: No. 8062-8-I,8062-8-I
• Citation: 29 Wn.App. 32,627 P.2d 152
• Court: Washington Court of Appeals
• Parties: John B. PIERCE, as Guardian ad Litem for his son, Charles David Pierce, an incompetent, Appellant, v. AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Respondent.

Page 32

29 Wn.App. 32

627 P.2d 152

John B. PIERCE, as Guardian ad Litem for his son, Charles David Pierce, an incompetent, Appellant, v. AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Respondent.

No. 8062-8-I.

Court of Appeals of Washington, Division 1.

April 20, 1981.

Reconsideration Denied May 19, 1981.

Perkins, Coie, Stone, Olsen & Williams, Charles C. Gordon, Seattle, Attys. at Law, for appellant.

Lee, Smart, Cook, Biehl & Martin, David L. Martin, Seattle, for respondent.

SWANSON, Judge.

This appeal concerns a declaratory judgment action to construe an automobile insurance policy. The sole issue is the interpretation of the phrase "while residents of the same household" contained in the policy's uninsured motorist coverage. The facts of the case are undisputed. On cross motions for summary judgment, the trial court granted Aetna Casualty & Surety Company's (Aetna) motion and denied Pierce's motion. Pierce appealed. A brief discussion of the facts is necessary to an understanding of the issue.

Aetna issued an automobile liability policy to The Boeing Company to provide coverage for certain Boeing executives who had company cars. As treasurer of The Boeing Company, John B. Pierce had a company car and was a designated insured under the policy. The policy's uninsured motorist coverage provided for additional insureds with the following language:

II. PERSONS INSURED

Each of the following is an insured under this insurance to the extent set forth below:

(a) the named insured and any designated insured and while residents of the same household, the spouse and relatives of either ...

On March 19, 1977, Charles David Pierce, John B. Pierce's 17-year old son, was severely injured while a passenger in a car which struck a utility pole. Neither the car driver nor the car owner had insurance. None of the Pierces had any ownership interest in the car. On behalf of his son, John B. Pierce claimed uninsured motorists coverage under the Aetna policy. He contended that his son was a proper insured and beneficiary under the policy's terms for persons insured if relatives "while residents of the same household." Aetna, however, denied coverage, asserting Charles David Pierce was not a resident of the same household as his father, John B. Pierce, on the date of the accident on the basis of the following facts.

John B. Pierce and his wife, Dolores Cooper Pierce, were divorced in April 1971. Dolores received custody of the couple's four children, including Charles David Pierce. She and the children continued to live in the family residence at 4003 Trenton S.W. in Seattle while John B. Pierce moved to an apartment on Fairview and later to a house on Blaine. Although John B. Pierce retained ownership of the family residence under the property settlement, he maintained it for the use of his ex-wife and four children. While he did keep some personal property there, he did not retain a separate room in the house. He did, however, use the Trenton residence as his voting address and received stock dividends there. For the first 2 years following the divorce, he frequently stayed overnight at the Trenton residence because he and his wife were then seriously considering reconciliation; but after 1973, he would stay overnight only on holidays. Sometimes the children would visit him at the Blaine house, but they continued to live at the Trenton house. Thus, at the time of the accident, John B. Pierce lived in his house on Blaine while Charles David Pierce lived with his mother in the house on Trenton.

In this appeal, Pierce contends the phrase "residents of the same household" is an ambiguous term, which must be interpreted according to the intent of the insured and not of the insurer. Because John B. Pierce and his son, Charles David Pierce, intended to be bound together in a household of financial, emotional, and physical ties despite the divorce, he asserts they were residents of the same household at the time of the accident. On the other hand, Aetna argues the phrase "residents of the same household" is unambiguous as applied to the undisputed facts of this case. Because any serious opportunity for reconciliation between Mr. and Mrs. Pierce had ended in 1973 long before the accident in 1977, the Pierces maintained separate households and were in fact not residents of the same household. Charles David Pierce resided with his mother, who had legal custody of him. He did not reside with his father. Therefore, Aetna contends John B. Pierce and Charles David Pierce were not residents of the same household.

Insurance policies are construed in accordance with the general rules applicable to all other contracts. Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 73, 549 P.2d 9 (1976); Jeffries v. General Cas. Co. of America, 46 Wash.2d 543, 283 P.2d 128 (1955). In construing an insurance contract, the court must interpret it according to the intent of the parties. Ames v. Baker, 68 Wash.2d 713, 415 P.2d 74 (1966). Under the guise of construction, however, the court cannot rule out of the contract language which the parties have placed into it, revise the contract under the theory of construing it, create a new contract for the parties, or impose obligations which never before existed. Evans v. Metropolitan Life Ins. Co., 26 Wash.2d 594, 174 P.2d 961 (1946). The terms of the policy must be understood in their plain, ordinary, and popular sense. Thompson v. Ezzell, 61 Wash.2d 685, 379 P.2d 983 (1963). Nevertheless, the court will construe an inclusionary clause liberally to provide coverage for those who can be embraced within the terms of the clause. Hawaiian Ins. & Guar. Co. v. Federated American Ins. Co, 13 Wash.App. 7, 20, 534 P.2d 48, 93 A.L.R.3d 407 (1975). See Dickson v. United States Fidelity & Guar. Co., 77 Wash.2d 785, 466 P.2d 515 (1970).

The cases which have discussed the interpretation of the phrase "residents of the same household" as used in insurance policies are legion. See generally Annot., 93 A.L.R.3d 420 (1979) (liability insurance); Annot., 96 A.L.R.3d 804 (1979) (no-fault and uninsured motorist provisions). The phrase "residents of the same household" has no fixed meaning but varies according to the circumstances of the case. American Universal Ins. Co. Thompson, 62 Wash.2d 595, 599, 384 P.2d 367 (1963) (applying California law); Cal-Farm Ins. Co. v. Boisseranc, 151 Cal.App.2d 775, 312 P.2d 401 (1957). In general terms, dictionaries define "resident" as one who dwells or has an abode in a place for a continued length of time and "household" as those who dwell under the same roof to compose a family living together. See Consumers United Ins. Co. v. Johnson, 26 Wash.App. 795, 801, 614 P.2d 657 (1980) (using dictionary definitions to construe a driver limitation endorsement). A person does not, however, have to remain physically within the household. As long as the person has some regular, permanent attachment to the family household, most courts find that person remains part of the household. Consequently, children away at school in temporary residences with the intention of returning to the family household remain residents of the parental household. See, e. g., Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 269 So.2d 869 (1972); American States Ins. Co. v. Walker, 26 Utah 2d 161, 486 P.2d 1042 (1971). Children in military service who have not acquired a separate domicile also remain residents of the parental household. See, e. g., American Universal Ins. Co. v. Thompson, supra; Handal v. American Farmers Mut. Cas. Co., 79 Wis.2d 67, 255 N.W.2d 903 (1977) (applying Iowa law). But see Compton v. Sims, 96 Idaho 762, 536 P.2d 1112 (1975). Spouses remain residents of the same household even though one spouse has left the family residence if the departing spouse had the intention of returning or retained the hope of effecting a reconciliation. See, e. g., Hawaiian Ins. & Guar. Co. v. Federated American Ins. Co., supra; Lumbermens Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104 (Alaska 1963); Holloway v. Farmers Ins. Exch., 252 Ark. 899-C, 481 S.W.2d 328 (1972); See also Neidhoefer v. Automobile Ins. Co., 182 F.2d 269, 273 (7th Cir. 1950) (intent of the departing family member important, and perhaps controlling, factor). Further, children and spouses living within the same curtilage or on the same land are residents of the same household. See, e. g., Workman v. Detroit Auto. Inter-Ins. Exch., 404 Mich. 477, 274 N.W.2d 373 (1979) (married daughter living in trailer on land owned by father-in-law near his house); Mazzilli v. Accident & Cas. Ins. Co., 35 N.J. 1, 170 A.2d 800 (1961) (separated spouse living 150 feet away but on same tract of land). But see Drake v. Donegal Mut. Ins. Co., 422 F.Supp. 272 (W.D.Pa.1976) (mother living in separate apartment in multi-unit building owned by daughter not resident of daughter's household even though daughter also lived in building). Thus, the following are relevant factors in determining who is a resident of the same household: (1) the intent of the departing person, (2) the formality or informality of the relationship between the person and the members of the household, (3) the relative propinquity of the dwelling units, and (4) the existence of another place of lodging. Workman v. Detroit Auto. Inter-Ins. Exch., supra 404 Mich. at 479, 274 N.W.2d at 379.

For the present case, the criteria listed above indicate John B. Pierce and Charles David Pierce were not residents of the same household. After 1973, there was little hope for reconciliation of the Pierce marriage so there was no intent to maintain a single household. John and Dolores instead maintained separate, distinct households a considerable distance apart. While John continued to visit Dolores and the children, he was no longer integrated into the daily routine of the Trenton household. Nevertheless, we must consider a narrower factual pattern than those found in the cases considered...