Prudential Property & Cas. Ins. Co. v. LaMarr, 93CA005571

• Decision Date: 15 December 1993
• Docket Number: No. 93CA005571,93CA005571
• Citation: 92 Ohio App.3d 331,635 N.E.2d 63
• Court: Ohio Court of Appeals
• Parties: PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. LaMARR, Admr., et al., Appellees. *

Page 331

92 Ohio App.3d 331

635 N.E.2d 63

PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. LaMARR, Admr., et al., Appellees. ^*

No. 93CA005571.

Court of Appeals of Ohio, Ninth District, Lorain County.

Decided Dec. 15, 1993.

Walter Matchinga, Cleveland, for appellant.

Anthony Giardini, Lorain, Martin Flanagan, Lorain County Asst. Pros. Atty., and James Burge, Lorain, for appellees.

COOK, Presiding Judge.

This appeal concerns a declaratory judgment action in which the trial court was requested to construe a homeowners insurance policy. Prudential Property & Casualty Insurance Company ("Prudential") appeals from the trial court's judgment that Kristen LaMarr ("Kristen"), who was a foster child in the home of Richard and Susan Schultz, was not an insured under the Schultzes' homeowners insurance policy. Under that interpretation of the policy, Prudential must defend and indemnify the Schultzes against survivorship and wrongful death claims predicated on Kristen's death. With its assignments of error, Prudential asserts that Kristen, as a foster child, was a resident of the Schultzes' household, thus making her an insured and, because she was an insured, any claim for her bodily injury was not compensable under the policy's exclusions. Prudential also argues that because Kristen was an insured, the wrongful death claim by Kristen's natural mother, Nicole LaMarr, was not covered under the Schultzes' policy.

We reverse because (1) Kristen was a resident of the Schultzes' household under the plain meaning of the policy; therefore, she was an insured and any claim for her bodily injuries was excluded under the policy, and (2) the Schultzes' policy excluded coverage for bodily injury, including death to an insured.

FACTS

1. Underlying Suit

On December 1, 1989, Children's Services of Lorain County ("CS") took temporary custody of Kristen, who was then six months old. CS held temporary custody of Kristen until her natural mother would be able to care for her, with the goal of reuniting Kristen and her mother within twelve months. The Schultzes were licensed foster parents and CS placed Kristen in foster care with them. Six months later, while in the Schultzes' care, Kristen sustained injuries which led to her death.

After being appointed administrator for Kristen's estate, Nicole sued the Schultzes for claims of both survivorship and wrongful death. Nicole alleged that Kristen's injuries and death were the result of the Schultzes' intentional and/or negligent acts. The Schultzes then requested that their insurer defend and indemnify them under their homeowners policy. ¹

2. Insurance Policy

The pertinent sections of the Prudential policy are set forth below.

"Coverage:

"If a claim is made or suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:

"a. pay up to our limit of liability for the damages for which the insured is legally liable; and

"b. provide a defense at our expense by counsel of our choice."

"Exclusion:

"We do not cover bodily injury to you or any insured [as defined] * * *."

"Definitions:

" 'Insured' means you [named insured] and the following residents of your household:

"a. your relatives;

"b. any other person under the age of 21 who is in the care of any person named above."

" 'Bodily injury' means bodily harm, sickness or disease, including required care, loss of services and death resulting therefrom."

3. Declaratory Judgment Action

Prudential filed a declaratory judgment action requesting a determination as to whether Kristen was an insured and whether it had to defend and indemnify the Schultzes in Nicole's suit. Prudential, Nicole and the Schultzes all moved for summary judgment. The trial court granted Nicole's and the Schultzes' summary judgment motions, stating that Kristen was not an insured under the policy because she was not a "resident of the Schultzes' household." The trial court reasoned that a "resident of a household" is a person who lives in the home for a period of some duration or regularity, although not necessarily permanently, but excludes a temporary or transient visitor and that because the policy did not specifically include foster children, it was ambiguous. The trial court then construed the policy in favor of the insureds and stated that because Kristen was a foster child temporarily with the Schultzes, she was not a resident of the household. Thus, Prudential was required to provide the Schultzes with a defense and to indemnify them under the terms of the policy.

Prudential appeals, asserting two errors.

Assignment of Error I

"The trial court erred in granting the motion for summary judgment of defendants Richard and Susan Schultz."

With this assignment of error, Prudential argues that Kristen, as the Schultzes' foster child, was a resident of their household under the plain meaning of the term "resident of the household"; therefore, she was an insured under the policy. We agree.

In order for Kristen to be an insured under the policy, she must have been under twenty-one, in the care of an insured and a resident of the Schultzes' household. Clearly, being only two years old, Kristen was under the care of the Schultzes. The crucial question is whether Kristen was...