Taylor v. United Services Auto. Ass'n
| Decision Date | 20 December 1996 |
| Docket Number | No. 94-1097,94-1097 |
| Citation | 684 So.2d 890 |
| Parties | 22 Fla. L. Weekly D47 Reginald TAYLOR and Angelica R. Taylor-Dean, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, etc., Appellee. Fifth District |
| Court | Florida District Court of Appeals |
Stephen P. Kanar, Orlando, for Appellants.
Lora A. Dunlap, of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for Appellee.
ON MOTION FOR REHEARING EN BANC
We grant en banc review withdrawing our prior opinion in this case and replacing it with this opinion.
The issue in this case is whether the "kids in the military" exception to the general rule that an individual must physically occupy a "household" in order to be a member of it should be applied in this case in order to find that Mrs. Taylor-Dean, a married woman in the military who had established a separate household with her spouse and child, was also a member of her mother's household at the time her brother was injured in an accident. The trial court refused to extend the "kids in the military" exception to cover a married woman with a child of her own. We agree and affirm.
Mrs. Taylor-Dean and her husband, both members of the military, established a marital household in Germany in 1989. They shared that residence for three years until just before the accident involved herein when Mrs. Taylor-Dean received a military assignment back to Fort Sam Houston, Texas. She was living in Texas with their child only because of this military assignment when this accident occurred.
Reginald Taylor, Mrs. Taylor-Dean's adult brother, resided with their mother in the mother's home at 1640 Trumbo Street in Winter Garden, Florida, when he was struck by an uninsured motorist. Reginald Taylor claimed coverage under Mrs. Taylor-Dean's automobile insurance policy claiming he was a member of her household.
The uninsured motorist provision in Mrs. Taylor-Dean's policy covered "a family member" which was defined as "a person related to you by blood, marriage or adoption who is a resident of your household." The dispositive question is, therefore, whether Reginald Taylor was a member of Mrs. Taylor-Dean's household at the time of the accident. Obviously he was not (nor has he been for several years) physically residing with Mrs. Taylor-Dean at the time of the accident. The only way that Mr. Taylor can claim under his sister's policy is for this court to hold that the mother's household is, in fact, the household of Mrs. Taylor-Dean because she was in the military service. We are thus urged to apply the "kids in the military" exception to the general rule. The "kids in the military" exception is based on the proposition that entering the military does not necessarily indicate that one intends to permanently change his or her residence. Therefore, if a permanent home is not intended, the "kid" may have two residences in fact--one on the military base and the other one continuing at his or her original home. See Wiley v. Great American Insurance Co., 1995 WL 548777 (Conn.Super.Ct. Sept.7, 1995).
But it is not the fact that Mrs. Taylor-Dean is in the military that we should focus on. That is almost irrelevant. Certainly, if she weren't in the military (or in college), appellants would have no argument at all. But an even more important fact is that Mrs. Taylor-Dean was a member of another household composed of her husband and her child at the time of the accident. Her family relationship would be the same whether she was in the military, teaching school or working in a factory. She simply no longer qualified as a "kid" in the "kids in the military" exception. She did not intend to ever return to her mother's household as a "kid" to live within her mother's family unit. She testified at trial:
Q. Now assuming your mother is in good health and is alive when you retire, she's going to stay at 1640 Trumbo Street, isn't she?
A. Yes.
Q. And you will live in another house nearby, correct?
A. There's not another house for me to live in. We have to build another house.
Q. You would build another house, wouldn't you? So if you continue as the circumstances are today with your mother still living and you were to retire, you would build a house next door or nearby your mother on her property and move into that house and retire, correct?
A. Correct.
This testimony reflects Mrs. Taylor-Dean's intent to return to Florida as a member of a separate household consisting of herself, her husband and her child and not as a "kid" returning home.
The fact that Mrs. Taylor-Dean assisted her mother in purchasing her mother's home and visited her frequently, while admirable, is of no import in resolving the issue of which household includes Mrs. Taylor-Dean. Nor does the fact that Mrs. Taylor-Dean retained her Florida driver's license and continued to vote in Florida reflect anything other than her intent to continue to claim Florida residency. It does not establish a "household" in Florida.
AFFIRM.
I concur in the result reached by the majority but agree with the dissent that this case does not involve the "kids in the military" exception.
When people enter the military, they are required to designate a permanent address known as the "home of record," which is their address at the time they enter active duty and in many cases their parents' home address. A military person's home of record often remains the same throughout his or her entire career even when he or she is periodically transferred from duty station to duty station across the country and around the world.
In addition to possessing a home of record, a military person can also establish a domicile or state of residency in a state to which he or she has been transferred. See 25 Am.Jur.2d Domicile § 32 (1996). A military person may choose to abandon a prior domicile and establish a new state of residency for a variety of reasons. However, once a domicile has been established, a move from that state will not necessarily cause a military person to abandon his or her state of residency. Id. For example, as pointed out by the dissent, military personnel who are stationed elsewhere are permitted to maintain their domicile in Florida and to continue to receive some of the privileges, such as voting, enjoyed by citizens who live here on a consistent basis.
The insurance contract in question here does not involve the determination of an insured's home of record or domicile. Instead, the contract provided insurance coverage for Captain Taylor-Dean and her "family members." The policy defined "family member" as:
[A] person related to [the insured] by blood, marriage or adoption, who is a resident of [the insured's household].
As noted above, "home of record," "state of domicile," and "household" are not synonymous terms. At the time of her brother's accident, Captain Taylor-Dean's household was not her home of record or her state of domicile, but instead her household was in Texas where she and her family resided. Certainly, under the terms of her insurance policy, Captain Taylor-Dean's brother would have been covered had he been living with her in Texas at the time of the accident. Instead, her brother was living with his mother in Florida, Captain Taylor-Dean's home of record.
In my view, application of the dissent's theory would permit unintended and illogical results. For example, under the dissent's theory, Captain Taylor-Dean's insurance policy could be construed to provide coverage for more than one "household"--both hers and her mother's. Another possibility would be that her adult brother who was living with his mother could be covered while her husband and child living in the same home with her would not be covered. Such results would be inconsistent with the plain language of the insurance contract.
This case does not involve a "kids in the military" exception. The concept of a military person retaining a permanent residence in spite of being transferred from temporary post-to-post, or until a permanent residence is established elsewhere, applies to adults as well as to unmarried kids. If not, military personnel lose their rights to vote, 1 rights to have a state exercise jurisdiction in a divorce or child custody case, 2 rights to have a particular state's driver's license, 3 and as in this case, the ability or right to have an automobile insurance coverage for resident relatives of a permanent residence, because by virtue of this opinion, Angelia R. Taylor-Dean has had no permanent residence since she joined the United States Army in 1986.
I take issue with the "finding" by this court that Taylor-Dean established a permanent residence in Germany, thereby justifying a conclusion that she gave up her original permanent residence in Florida. The trial court did not make such a finding. It relied on the fact that the accident took place more than two years after Taylor-Dean entered the military, that she was more than twenty-one years old, and that she had chosen to make the military a career.
Further, the evidence in this case does not support this court's additional "finding" that Taylor-Dean was living in Texas with her child when this accident occurred. At that time, she had no other permanent residence other than her family home in Florida. In sum, she was, at the time of the accident, sharing an off-base apartment with another officer-friend, while taking a training course at a military base in Texas. She had no child. Her husband was stationed in Germany. If the Trumbo Street home in Florida was not her "permanent residence" at the time of the accident, she had none.
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