Thompson v. Mississippi Farm Bureau Mut. Ins. Co.

• Decision Date: 24 June 1992
• Docket Number: No. 90-CA-1012,90-CA-1012
• Citation: 602 So.2d 855
• Parties: Mary H. THOMPSON, Individually, and as Mother of Traci Lee Wilcox, a Minor, and Traci Lee Wilcox, a Minor v. MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY.
• Court: Mississippi Supreme Court

Page 855

602 So.2d 855

Mary H. THOMPSON, Individually, and as Mother of Traci Lee Wilcox, a Minor, and Traci Lee Wilcox, a Minor v. MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY.

No. 90-CA-1012.

Supreme Court of Mississippi.

June 24, 1992.

Gary L. Geeslin, Lipscomb Geeslin & McClanahan, Columbus, John J. Spiegel, Miami, Fla., for appellants.

Richard H. Spann, Mitchell McNutt Threadgill Smith & Sams, Columbus, for appellee.

EN BANC.

ROY NOBLE LEE, Chief Justice, for the Court:

Mississippi Farm Bureau Mutual Insurance Company filed suit in the Circuit Court of Monroe County, Mississippi, against its insured, Mary H. Thompson and her daughter, Traci Lee Wilcox, seeking an adjudication whether coverage was afforded under the terms of a liability insurance policy issued to Mrs. Thompson providing no liability coverage for injuries sustained by a family member. The lower court entered an order for summary judgment, holding that no coverage was applicable to the insured under the facts of this case.

FACTS

Mary House Thompson and Gary Wilcox were married in Homestead, Florida, on December 18, 1970. To this union was born one daughter, Traci Lee Wilcox, on May 25, 1972. The mother and father were later divorced in 1973, with custody of Traci granted to the mother. Traci lived with her mother in Dade County, Florida, until 1980 when they moved to Monroe County, Mississippi. While in Monroe County, Traci attended Hamilton Elementary School and Faith Christian Academy. After a few years, Traci decided that she did not like Mississippi schools and wanted to live with her father in Florida so she could attend those schools. Her father is employed as a law enforcement officer for Dade County.

In preparation for Traci's enrollment in the Florida school system, Traci had to undergo a physical examination. Consequently, she was taken to Dr. John Neil Turnage in Aberdeen, Mississippi, on August 19, 1985. He examined Traci and found her to be in good physical condition and able to attend school. After making arrangements for the transfer of Traci's school records to Florida, Traci and her mother loaded all of Traci's clothing, her television, stereo, pet parakeet, and other belongings into the mother's automobile and set out for her father's house in Homestead, Florida.

Upon arriving in the Homestead area, Mrs. Thompson was proceeding to her brother's home in order for Traci to call her father, Gary Wilcox, before proceeding to his house. While Traci's mother was attempting to make an improper left turn onto Krome Avenue, her vehicle was struck in the passenger door by an oncoming pick-up truck. Mrs. Thompson stated that she did not see the oncoming truck because there was a tractor-trailer about 300 yards ahead of her making a left turn, which blocked her view. Traci, thirteen years of age at the time, suffered cracked ribs, a fractured pelvis, and an injury to her thumb as a result of the collision.

According to the record, Traci would often spend time each summer in Florida with her father, even though her mother had legal custody. There also exists a discrepancy in Mrs. Thompson's statements concerning the trip. In a recorded statement made to an adjuster for Farm Bureau, she stated that Traci was just going down to visit, while in a later affidavit she stated that Traci was going to Florida to live. Also, the declaratory judgment suit was filed in Mississippi before suit was filed in Florida by Traci Lee Wilcox, through her father asserting claims arising from the automobile accident.

The accident occurred before Traci reached her father's home, but while en route to it.

LAW

I. Did the lower court err in holding that Traci Lee Wilcox was a member of her mother's household and was excluded from coverage under her mother's automobile liability insurance policy?

The case at bar presents a question of first impression on the narrow issue concerning when, and if, a minor ceases to be included in a divorced parent's household for the purposes of exclusion clauses in insurance policies.

The policy language here states:

This policy does not apply under Coverage A, to bodily injury to or death of the insured or any member of the family of the insured residing at the same household.

For preliminary guidance, we look to the decisions addressing the issue of a minor's domicile when his/her parents are divorced. In Latham v. Latham, 223 Miss. 263, 78 So.2d 147 (1955), the Court held that the domicile of a child of divorced parents is that of the parent to whom its custody has been awarded. Also, an infant can not of its own volition acquire a domicile. Id. 78 So.2d at 150. In Allen v. Allen, 243 Miss. 23, 136 So.2d 627, 630 (1962), the Court stated that "ordinarily the domicile or legal residence of a minor child is the same as that of the father, but where the parents separate, the child usually takes the domicile of the parent with whom it lives in fact."

We recognize that this Court and other jurisdictions have held that intent is a basis of domicile. Stubbs v. Stubbs, 211 So.2d 821, 824 (Miss.1968). Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is that of their parents. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29, 46 (1989). In the present case, the intent to change domicile had been formed but the move had not come into fruition at the time of the collision.

Family exclusion clauses in insurance policies have been previously addressed by this Court. In Perry v. Southern Farm Bureau Casualty Insurance Company, 251 Miss. 544, 170 So.2d 628 (1965), the Court, in upholding the validity of a family household exclusion clause, stated:

There is no valid reason why insurance companies should not have the right, by contract, to avoid coverage for those in the family circle, who, on account of their close intimacy, may be expected to be riding at frequent intervals in the insured car.

The intent of the contract and the attendant circumstances must be considered in arriving at reasonable conclusions in such cases.

Id. 170 So.2d at 630.

In Perry, Mrs. Edge, the mother-in-law of the insured, Perry, was denied coverage under Perry's policy because she (1) lived with the Perrys and (2) was a member of the Perry household also.

The question in Fleming v. Travelers Insurance Company, 206 Miss. 284, 39 So.2d 885 (1949), was whether the husband, while separated but not divorced from his wife for five or six years and living out of state, is within the same household as his legal wife. The Court held that the husband was not a member of the household stating:

when dealing with a contract of insurance, the Court must inquire into what the parties thereto meant. Practical considerations must be given play, interpreted in the light of the purpose of the policy provision.

Id. 39 So.2d at 887.

Mrs. Thompson relies on the case of Bednarz v. Continental Insurance Company, 453 F.2d 372 (5th Cir.1972), which held that an adult daughter who was moving from Slaton, Texas, to Pueblo, Colorado, in her own automobile and with all her belongings at the time of the accident was not a resident of her father's household. The Fifth Circuit Court of Appeals found that the daughter had left Slaton with the intention of making Pueblo her permanent residence; that she had accepted a full-time teaching position; and that she had no intention of returning to her father's home to live. Therefore, she was not part of the father's household. Id. at 373. We are of the opinion that the facts of the case at bar distinguish it from the Bednarz case.

The Louisiana Court held in Chapman v. Allstate Insurance Company, 306 So.2d 414, 416 (La.Ct.App.1975), that the mere intention to be a resident of her father's household was not sufficient to make the child an actual member of that household. In Chapman, Andrew Chapman brought an action against Allstate claiming uninsured motorist coverage, under his policy, for the death of his son, Carl Chapman. Mr. Chapman and his wife had been divorced for seven years, with Mrs. Chapman having full custody of Carl. Carl and his mother lived in Louisiana with Mr. Chapman living in Florida. Carl had gone to live with his father permanently on two previous occasions. However, since his father's job working offshore required him to be away often, Carl moved back home with his mother. Meanwhile Andrew Chapman moved to Louisiana, when Carl again expressed a desire to live with his father. Carl's mother advised that he wait until the end of the school year, which he did. The fatal accident occurred before Carl had actually moved to his father's home.

The policy in question would only cover Carl if he was a resident in his father's household. The court held that Carl could not be considered a legal resident of his father's household since there was a change of status by law. Once the Florida court awarded legal custody of the unemancipated minor Carl to his mother, he became a legal resident of his mother's household. Id. at 416. The Chapman court also noted that none of Carl's belongings had been transferred to his father's household and that the intention to become a resident of his father's household is not sufficient to make him an actual member of that household.

In our opinion, the following undisputed facts require that the judgment of the lower court be affirmed.

1. Traci was a minor, thirteen years of age.

2. Traci had lived with her mother in Monroe County, Mississippi, since 1980.

3. Traci had been under the legal custody, management and control of her mother since her mother's divorce in 1973, with no application to a court having been filed to change such legal custody and control.

4. Traci was with her mother, in her mother's automobile, when the accident occurred.

5. Traci and her mother had just come off the road from travelling to Florida when the accident occurred, not having...