Shivvers v. American Family Ins. Co.

• Decision Date: 12 February 1999
• Docket Number: No. S-97-1153,S-97-1153
• Citation: 256 Neb. 159,589 N.W.2d 129
• Parties: Lia Bradford SHIVVERS, appellant, v. AMERICAN FAMILY INSURANCE CO., appellee, Prudential Insurance Company, appellee and cross-appellee, and Stephanie (La Plante) Robertson, appellee and cross-appellant.
• Court: Nebraska Supreme Court

Page 129

589 N.W.2d 129

256 Neb. 159

Lia Bradford SHIVVERS, appellant, v. AMERICAN FAMILY INSURANCE CO., appellee Prudential Insurance Company, appellee and cross-appellee and Stephanie (La Plante) Robertson, appellee and cross-appellant.

No. S-97-1153.

Supreme Court of Nebraska.

Feb. 12, 1999.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits 2. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over all motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct further proceedings as it deems just.

in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. Insurance: Contracts: Appeal and Error. The interpretation and construction of an insurance contract or policy involve questions of law, in connection with which an appellate court has an obligation to reach its conclusions independent of the determinations made by the court below.

4. Insurance: Contracts. Parties to an insurance contract may contract for any lawful coverage, and an insurer may limit its liability and impose restrictions and conditions upon its obligation under the contract not inconsistent with public policy or statute.

5. Insurance: Contracts: Motor Vehicles: Liability: Public Policy. A household exclusion clause contained in a policy of motor vehicle liability insurance that is not used as proof of future financial responsibility under Nebraska's Motor Vehicle Safety Responsibility Act does not violate public policy and is enforceable.

6. Insurance: Contracts. Whether an insurance contract is ambiguous is a question of law.

7. Contracts: Words and Phrases. An instrument is ambiguous if a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.

8. Contracts. The fact that parties to a contract suggest different interpretations of its language does not necessarily, or by itself, compel the conclusion that the document is ambiguous.

9. Insurance: Contracts: Intent: Appeal and Error. In appellate review of an insurance policy, the policy must be construed as any other contract and effect must be given to the parties' intentions at the time the contract was made. Where the terms of such a contract are clear, they are to be accorded their plain and ordinary meaning.

10. Insurance: Contracts. The language of an insurance policy should be read to avoid ambiguities, if possible, and the language should not be tortured to create them.

11. Contracts. An otherwise unambiguous contract provision is not made ambiguous simply because it is difficult to apply to the facts of a particular case.

12. Insurance: Contracts: Intent: Words and Phrases. For purposes of a motor vehicle insurance policy which does not otherwise define the term "household," a resident of the named insured's "household" means one who dwells or has an abode under the same roof as the named insured for a duration of sufficient length so that the occupiers can be said to compose a family. The factors to be considered in determining whether that test 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 members of the named insured's 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.

Andrew W. Snyder, of The Van Steenberg Firm, Scottsbluff, for appellant.

Stefan T. Wall and Patrick M. Connealy, of Crites, Shaffer, Connealy, Watson & Harford, Chadron, for appellee American Family.

Terry Curtiss, of Curtiss, Moravek, Curtiss & Margheim, Alliance, for appellee Prudential.

Martin J. Troshynski, of Kelley, Scritsmier & Byrne, P.C., North Platte, for appellee Robertson.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Lia Bradford Shivvers was injured as the result of a singlevehicle accident which occurred on December 28, 1993, while she was a passenger in a vehicle owned and operated by her roommate of 10 days, Stephanie (La Plante) Robertson. At the time of the accident, Robertson was insured by Prudential Insurance Company, which denied coverage with respect to Shivvers' personal injury claim against Robertson on grounds that the two women resided in the same household and thus fell within a liability coverage exclusion contained in the Prudential policy. American Family Insurance Co., which insured Shivvers, denied liability to her under its uninsured and underinsured motorist coverage on the same grounds. In this declaratory judgment action, the district court for Sheridan County determined that Shivvers and Robertson resided in the same household at the time of the accident and that the household exclusions contained in both the Prudential and American Family policies were therefore applicable. On Shivvers' appeal, we conclude as a matter of law that the arrangements under which Shivvers and Robertson resided together did not constitute a household. Therefore, we reverse the judgment of the district court.

FACTS AND PROCEDURAL BACKGROUND

Shivvers and Robertson are not related by blood or marriage. They met each other through a mutual acquaintance who knew that the two women, then unmarried and in their early twenties, were considering moving to the same locale for the purpose of carrying out their ministries as Jehovah's Witnesses. After some discussion, the two decided to move to Chadron, Nebraska, and live together there for purposes of financial convenience. Prior to sharing a residence, the women agreed to divide all expenses equally and each agreed to pay for her own telephone calls. They moved into a house in Chadron on December 18, 1993, with each maintaining a separate bedroom as her private area. After a short period, they moved to an apartment in Chadron. Following the move, the women again split the rent and other living expenses and maintained separate bedrooms.

Shivvers and Robertson each purchased her own groceries but would sometimes shop together and split the cost. Each woman provided a portion of furniture for the common areas of the residence, and each provided her own bedroom furniture. The women testified that they spent time together as part of their religious work and took turns driving their own vehicles in order to do so, but otherwise spent approximately 3 hours or less each day together. The women generally did not eat meals together, had separate friends, and maintained separate bank accounts. Both women testified in their depositions that they shared living arrangements out of financial necessity in order to save money and that neither considered herself to be living with the other as a family. Shivvers further testified that her original goal was to stay in Chadron for 1 year. At the end of the arrangement, approximately 11 months after they first shared a house together, both women returned to their parents' homes in another state.

At the time of the accident, Robertson was insured under a "Car Policy" issued by Prudential. In a section entitled "Losses We Will Not Pay For (Part 1)," under the subheading "House-hold Residents," the policy stated: "We will not pay for bodily injury to you or a household resident if caused by you or a household resident. We will not defend you or a household resident in any suits brought against each other directly or indirectly by a third party." The policy defined "household resident" as "someone who lives in your household. A household resident includes a "resident relative." The term "resident relative" is defined by the policy as "someone who lives in your household and is related to you by blood, marriage, adoption or is a ward or foster child." The Prudential policy does not define the term "household."

On the date of the accident, Shivvers was insured under a "Family Car Policy" issued We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the uninsured motor vehicle.

by American Family. The policy stated in part:

The policy further provided that the term "uninsured motor vehicle" did not include a vehicle "owned by or furnished or available for the regular use of you or any resident of your household." The uninsured motorist coverage contained an exclusion stating that it did not apply to bodily injury to a person "[w]hile occupying ... a motor vehicle that is not insured under this Part, if it is owned by you or any resident of your household." The American Family policy also contained an underinsured motorist coverage endorsement containing a similar exclusion. The policy does not define the term "household" or the phrase "any resident of your household."

Shivvers originally filed this action against American Family, in which action she alleged that because coverage for her claim was excluded by the Prudential policy, she was therefore entitled to coverage under her uninsured and underinsured motorist coverage with American Family. Robertson and Prudential were later joined in the action. In their answers, Prudential and American Family denied that their policies...