T.B. v. Liberty Mut. Ins. Co.

• Decision Date: 17 August 2012
• Docket Number: CAUSE NO. 1:10CV545-LG-JMR
• Citation: T.B. v. Liberty Mut. Ins. Co., CAUSE NO. 1:10CV545-LG-JMR (S.D. Miss. Aug 17, 2012)
• Parties: T. B., individually and by and through her guardian and adult next friend, Joy Greenwell PLAINTIFF v. LIBERTY MUTUAL INSURANCE COMPANY and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

T. B., individually and by and through her guardian and adult next friend, Joy GreenwellPLAINTIFF v.LIBERTY MUTUAL INSURANCE COMPANY and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANYDEFENDANTS

CAUSE NO. 1:10CV545-LG-JMR

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

Dated: August 17, 2012

MEMORANDUM OPINION AND ORDER

BEFORE THE COURT are the Motions for Summary Judgment[141, 144] filed by Plaintiff T. B. and DefendantState Farm Mutual Automobile Insurance Company.Also before the Court is a Motion to Strike[152] filed by T. B., which relates to a statement submitted in support of State Farm's Motion.Plaintiff T. B. claims uninsured motorist benefits under a policy issued to her aunt and uncle for injuries suffered in an automobile accident while she was a summer visitor to their home.The parties agree on the facts that are relevant to the Motions for Summary Judgment, and the only issue before the Court is whether T. B. was a resident of her aunt and uncle's home at the time of the accident, thereby entitling her to uninsured motorist coverage.Having reviewed the record in this case and the applicable law, the Court is of the opinion that T. B. has not established that she was a resident as contemplated by the policy and the law.For that reason, her Motion for Summary Judgment is denied, State Farm's Motion for SummaryJudgment is granted, and judgment is entered in this matter in favor of State Farm.

FACTS

• At the time of the accident that is the basis of this case, T. B. was a fifteen-year-old high school student who lived with her mother, Joy Greenwell, and her stepfather, Julius Greenwell, in Indiana.

• Near the end of May, 2008, around Memorial Day, the Greenwells and T. B. went to Kentucky to visit Joy's mother for a family reunion.This was a regular trip that they had taken numerous times over the Memorial Day holiday.The Greenwells planned a trip to Tennessee after this trip, and T. B. was to be left at her grandmother's at least until they returned.T. B. had brought clothes and toiletries with her in anticipation of being gone from home for several weeks.

• Also visiting at that time was Phyllis Eubanks(now Graves), who is Joy's sister and T. B.'s aunt.Phyllis lived in George County, Mississippi, with her husband, Marshall.On past occasions, T. B. would go home with Phyllis after the family reunion and stay with her for a few weeks.In 2008, Joy discussed with Phyllis and her mother the possibility that T. B. would stay with Phyllis, but nothing definite was decided until after Joy left.

• Ultimately, it was decided that T. B. would return to Mississippi and stay with her aunt for an indefinite period of time, possibly until some time in July.¹

• It was understood by the Greenwells and the Eubankses that T. B. would return to Indiana before the end of the summer and would attend her high school in Indiana.Her room at the Greenwells' home still contained all of the belongings that she had not packed for the trip.

• A few days after T. B. arrived in Mississippi, on May 30, 2008, she joined Marshall Eubanks's daughter and some other young people for a ride in a pickup truck owned and insured by former DefendantElizabeth Wood and driven by her son, E. W.The pickup was involved in a one-car accident, which killed E. W. and seriously injured T. B.

• T. B. suffered from a skull injury, from which she will likely have some neurological impairment.Her medical specials are approximately $242,000.00.

• E. W.'s liability carrier was Geico, which interpled funds in the George County Chancery Court.T. B. was ultimately awarded $90,000.00 in liabilityfunds.Geico, Elizabeth Wood, and the Estate of E. W. have been dismissed from this lawsuit by agreement of the parties.

• T. B.'s parents purchased uninsured motorist coverage with Defendant Liberty Mutual, in the amount of $250,000.00.As of the date of this Opinion, Liberty Mutual and T. B. have reached a settlement of her claims, subject to chancery court approval.

• At the time of the accident, Marshall Eubanks had eight automobile insurance policies in effect with State Farm, which provided uninsured motorist coverage totaling $200,000.00.The policies provided coverage to relatives who primarily resided with Eubanks.

ANALYSIS

Federal Rule of Civil Procedure 56(a) requires the entry of summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Summary judgment is appropriate "against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986).The moving party"bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact."Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349(5th Cir.2005).

The question presented by this case is whether the undisputed facts support T. B.'s claim against the Eubanks' uninsured motorist coverage.Where the factsare not in dispute, the interpretation of the terms of an insurance policy are a question of law.Johnson v. Preferred Risk Auto. Ins. Co., 659 So. 2d 866, 871(Miss.1995).The Court's interpretation, however, must be consistent with Mississippi law on the interpretation of insurance contracts and, in particular, with Mississippi's law on uninsured motorist coverage.

The Mississippi Uninsured Motor Vehicle Act requires automobile insurance policies to provide coverage "to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle . . . ."Miss. Code Ann. § 83-11-101(1972).Conducting an expansive review of Mississippi law, the Fifth Circuit has concluded that restrictions on uninsured motorist coverage are construed strictly against the insurer, so as to promote "the remedial and humanitarian purposes of the Act."Boatner v. Atlanta Specialty Ins. Co., 115 F.3d 1248, 1251(5th Cir.1997);see alsoAetna Cas. & Sur. Co. v. Williams, 623 So 2d 1005, 1008-09(Miss.1993)("[W]e consistently have held that the language of the Mississippi Uninsured Motorist Coverage Act must be construed liberally to provide coverage and strictly to avoid or preclude exceptions or exemptions from coverage.").To that end, where statutory provisions provide broader coverage than the policy terms, the statutory provisions become part of the policy.Boatner115 F.3d at 1251.

The statutory definition of "insured" includes the named insured and "while resident of the same household, the spouse of any such named insured and relatives of either."§ 83-11-103(b).The statute goes on to provide, "The definition of theterm 'insured' given in this section shall apply only to the uninsured motorist portion of the policy."Id.If the policy contains any other definition of "insured," the statutory definition should be substituted.Dunnam v. State Farm Mut. Auto Ins. Co., 366 So. 2d 668, 671-72(Miss.1979).Here, Eubanks' policies provide uninsured motorist coverage to relatives who "primarily" reside with the named insured.Under Mississippi law interpreting the Uninsured Motorist Coverage Act, a person may have more than one residence.McLeod v. Allstate Ins. Co., 789 So. 2d 806, 810(Miss.2001).Because inclusion of the term "primarily" would have the effect of narrowing that definition to only one residence—the primary one—it would have the effect of limiting coverage beyond what was intended by the statute.See, e.g., Bolin v. Progressive Northwestern Ins. Co., No. 2:07CV0049AGF, 2009 WL 1010770 at *8(E.D. Mo.Apr. 9, 2009)("While a person may reside in two places for purposes of insurance coverage, a person cannot reside 'primarily' in two places.")For that reason, the Court will construe the issue of residence with reference to the statutory definition.

Obviously, T. B. was a resident of her parents' home in Indiana, for several reasons.First, she was a minor who could not have established residence in a home apart from her parents.Williams, 623 So. 2d at 1010-11.Second, it was the place where her possessions, other than the clothing and toiletries she took to her aunt's house, were located.Johnson, 659 So. 2d at 875.Finally, it was clear that T. B., her parents, and her aunt all intended that T. B. would return to Indiana by theend of July to resume her life and her education in Indiana.McLeod, 789 So. 2d 812-13.The question is whether she had another residence with her aunt in Mississippi.

The term "resident," according to the Mississippi Supreme Court, "has no technical or fixed meaning."Johnson, 659 So. 2d at 872.Its construction "depends on the context, subject matter, and purpose designed to be accomplished by its use."Id.It is, however, "generally understood to mean one having more than a mere physical presence, and . . . the transient visit of a person for a time to a place does not make him a resident while there."Id.(quoting77 C.J.S.Resident § (1952)).Thus, the term "imports a fixed abode for the time being, as contradistinguished from a place of temporary abode . . . ."Id.On the other hand, it "may be used in the strict primary sense of one actually living in a place for a time, irrespective of domicile, and it may refer to a temporary sojourner . . . ."Id.In Johnson, the trial court had granted summary judgment to the insurer.Using this framework of analysis, the Mississippi Supreme Court reversed the trial court and found that there was coverage for adult children who were staying temporarily in their parents' homes, even though the visit was intended to end once the children found a place to live in Arkansas and moved there.The court reasoned:

Applying these factors to the Johnsons' case, it may first be noted that

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