Robertson v. Lumbermen's Mut. Cas. Co., s. 61740

• Decision Date: 21 September 1981
• Docket Number: Nos. 61740,62000,s. 61740
• Citation: 286 S.E.2d 305,160 Ga.App. 52
• Parties: ROBERTSON v. LUMBERMEN'S MUTUAL CASUALTY COMPANY. WILKERSON v. LUMBERMEN'S MUTUAL CASUALTY COMPANY.
• Court: Georgia Court of Appeals

Page 305

286 S.E.2d 305

160 Ga.App. 52

ROBERTSON v. LUMBERMEN'S MUTUAL CASUALTY COMPANY.

WILKERSON v. LUMBERMEN'S MUTUAL CASUALTY COMPANY.

Nos. 61740, 62000.

Court of Appeals of Georgia.

Sept. 21, 1981.

Rehearing Denied Oct. 15, 1981 in

No. 61740.

Rehearing Denied Oct. 28, 1981 in

No. 62000.

Certiorari Denied Nov. 19, 1981

in No. 61740.

Certiorari Denied Jan. 28, 1982

in No. 62000.

Marjorie M. Rogers, John Talmadge, Barry S. Mittenthal, Atlanta, for appellant Robertson.

John W. Guest, Jonesboro, for appellant Wilkerson.

Robert M. Darroch, W. Wray Eckl, Atlanta, for appellee.

BIRDSONG, Judge.

Summary judgment. Amos and Diane Shipp were man and wife. They purchased a 1973 Lincoln Continental in October, 1979 and title was issued in the name of both. In January, 1980, Diane Shipp sued her husband for divorce. Apparently in contemplation of divorce, Amos had moved from the marriage domicile in mid-December, 1979 and so far as the record shows has lived separately from Diane Shipp since December, 1979. On February 7, 1980, Diane Shipp obtained an interlocutory decree awarding her exclusive possession and use of the marital premises and the Continental. She demanded return of a set of keys to the Continental from Amos but was unable to obtain the set of keys. Diane also applied for a new title to the Continental in her name only. She obtained such a title only after the events giving rise to this litigation. On February 15, Diane Shipp drove the Continental to a restaurant and parked and locked the car. While she was in the restaurant, Amos Shipp, without her knowledge or consent, unlocked the car and drove it away from the restaurant parking lot, leaving her without transportation. When she returned to the parking lot and discovered the car missing, she reported it stolen to the police. Amos Shipp drove the Continental while drunk and at a high rate of speed and collided with an AMC Gremlin owned by Holbrook, operated by Robertson and in which Wilkerson was a passenger. Holbrook brought suit against Amos Shipp for damages to her auto in the amount of $1,200. Robertson sued Amos for personal injuries and punitive damages amounting to $150,000 and Wilkerson sued Amos for injuries and damages amounting to $300,000. Lumbermen's Mut. Cas. Co. was the insurer of the Continental with Diane Shipp listed as the only insured. The relevant portions of the insurance policy pertaining to coverage provides coverage for the named insured (Diane Shipp), for a "family member," or person using the covered auto with permission of the owner. The policy further defines "family member" as a spouse of the named insured if the spouse resides in the same household. There is an exclusion of coverage for any person using the vehicle who is without a reasonable belief that he is entitled to do so. Lumbermen's sought a declaratory judgment as to its duty to afford coverage and a defense to Amos Shipp, naming as defendants in the declaratory judgment action, Amos Shipp, Holbrook, Robertson, and Wilkerson. Amos Shipp did not answer the declaratory judgment action. The other defendants filed appropriate answers asserting that as a husband-spouse, not yet divorced, Amos Shipp was a legal resident of the marital domicile and thus covered under Diane's policy. Moreover, they asserted in their answer that because at the time of the accident Amos' name appeared on the title, he still had a key and in the absence of any verbalized denial of his lack of authority (by Amos personally) Amos was operating the car with a reasonable belief that he had a right to do so. Based upon affidavits, answers to interrogatories, and arguments of counsel, the trial court granted summary judgment to Lumbermen's. Robertson and Wilkerson have brought separate appeals to the grant of summary judgment. Because the facts and issues are identical and both appellants are represented by the same counsel, we have consolidated the appeals and will treat the case as one. In their appeals the appellants enumerate four alleged errors. Held :

1. In their first enumeration of error, each appellant asserts error in the trial court's conclusion that Amos Shipp was not "resident" in the marital domicile because he was still married to Diane Shipp at the time of the accident. We reject such an argument. Appellants advance the law of "domicile" which declares that "domicile" is a matter of intent, that Amos has expressed no "intent" as to a change in his domicile and that it can be presumed he still "resides" with his wife. We have no argument with that principle of law for it most assuredly is correct, but it simply has no application to the question under consideration. The ordinary and accepted meaning of the phrase "one residing in the same household" in an insurance policy, pertains to one who physically maintains permanent or frequently utilized living accommodations in the principal insured's home. See Henderson v. Transcontinental Mut. Ins. Co., 227 F.2d 106 (5th Cir. 1955); Southeastern Fidelity Ins. Co. v. McDonald, 125 Ga.App. 394, 188 S.E.2d 162. In this case, Amos Shipp had moved out of the marital domicile prior to the institution of a divorce; those divorce proceedings were in progress; and, exclusive use and possession of the home had been granted by court order to Diane Shipp. Consistent with the court order had Amos Shipp attempted to resume residence on any basis in his wife's house, he would have been in violation of the court order and subject to contempt citation. Even the most strained of interpretations cannot place Amos Shipp as "living" in the insured's household. This contention lacks any colorable merit.

2. In their second enumeration of error, appellants contend that the court erred in finding that Amos Shipp had no reasonable belief...