Vanbebber v. Roach

• Decision Date: 26 September 2007
• Docket Number: No. E2006-02062-COA-R3-CV.,E2006-02062-COA-R3-CV.
• Citation: 252 S.W.3d 279
• Parties: Brian L. VANBEBBER v. Jon ROACH, et al.
• Court: Tennessee Court of Appeals

252 S.W.3d 279

Brian L. VANBEBBER v. Jon ROACH, et al.

No. E2006-02062-COA-R3-CV.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

May 17, 2007 Session.

September 26, 2007.

Permission to Appeal Denied by Supreme Court March 3, 2008.

John T. Johnson, Jr. and William J. Carver, Knoxville, Tennessee, for appellant, Tennessee Farmers Mutual Insurance Company.

James S. MacDonald, Knoxville, Tennessee, for appellee, Brian L. VanBebber.

OPINION

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and SHARON G. LEE, JJ., joined.

This case involves a personal injury claim arising out of a two-vehicle collision. The dispute on appeal is between the injured plaintiff, Brian L. VanBebber, and Tennessee Farmers Mutual Insurance Company. Their disagreement pertains to whether the plaintiff is covered under the uninsured motorist provisions of his mother's policy with Tennessee Farmers. This issue was tried to a jury. The plaintiff contends that he was a resident of his mother's household at the time of the accident. The trial court held that the policy language — "resident of your household" — is ambiguous. As a consequence of this ruling, the court instructed the jury that it should liberally construe this phrase "in favor of [the plaintiff] ... and against [Tennessee Farmers]." The jury returned a verdict in favor of the plaintiff. We hold that the trial court committed error when it characterized the subject provision as ambiguous and that it further erred when it thereafter charged the jury that it should construe this language liberally in favor of the plaintiff and against Tennessee Farmers. Because we hold that these errors more probably than not affected the judgment in this case, we vacate that judgment and remand for a new trial.

I.

The plaintiff was injured in an automobile accident in Union County on February 12, 2002. At the time of the 2006 trial below, the plaintiff was approximately 45 years old. On the day of the accident, he was a guest passenger in a pickup truck being driven by his employer, Terry D. Collins. The Collins' vehicle was struck by a vehicle owned by the defendant, Thomas McLaughlin. It was being driven at the time by Joseph A. McBee. McBee died as a result of injuries received in the accident.

The plaintiff filed suit against (1) Jon Roach, the Personal Representative Ad Litem of McBee and (2) McLaughlin. The plaintiff secured service of process on Tennessee Farmers (1) under his own automobile insurance policy with that company¹ and (2) under his mother's policy with the same company. With respect to his claim based upon his mother's policy, he alleged that he was a resident of his mother's household at the time of the accident. The trial court severed the coverage issue. Later, the plaintiff's suit against the named defendants was settled.

Tennessee Farmers denied liability under Mrs. VanBebber's policy, arguing that the plaintiff was not a resident of her household when the accident occurred.

On the coverage issue, the plaintiff's basic thrust is twofold: first, that an individual can have more than one residence at a time, and second, that he was residing with his mother as well as his girlfriend at the time of the accident.

The plaintiff provided proof of his close relationship with his mother and his continuing connection to her residence. The record reflects that, up until 1999, the plaintiff lived in Union County with his parents except for a month or two when he resided with friends after he dropped out of high school. The plaintiff's father, Lonnie VanBebber, died in February 2000. According to the plaintiff, after his father's death, he spent every night with his mother for two or three months.

Upon his father's death, the plaintiff inherited a Model A Ford, which he kept at his mother's house. He joined the Smoky Mountain Model A Club and advised the organization to send its monthly publication to him at the post office box used by his mother. His subscription was mailed to that address up through the time of the trial. The plaintiff further noted that his Tennessee Farmers' policy, Number 4980126, listed as his address his mother's post office box. Her policy with Tennessee Farmers, Number 0481456, used the same address. Additionally, the same post office address was listed on the plaintiff's Sears credit account. When he sought employment in 2000 at a company called Sawing Systems, his application form listed the post office address. According to his testimony, his tax returns bore his mother's address. He indicated that he always spent his holidays at his mother's home.

In 1999, the plaintiff met Stacy Boardman, whom he would later marry. When they first met, Boardman owned a house on J.B. Lane in Sharps Chapel. The plaintiff would frequently stay there overnight. He testified that, if he stayed overnight with Boardman, he would leave directly from her house to go to work. The plaintiff claimed that it was his routine to go to his mother's house after work to retrieve clean clothes, bathe, eat dinner, perform yard work if needed, and assist his mother as necessary. According to him, he saw his mother "almost daily, every other day."

In 2001, when the plaintiff purchased a vehicle for his personal use, he listed Boardman's address on the bill of sale. He testified that, prior to the accident, he kept a ski boat parked at her residence. He asserted, however, that, at the time of the accident, he had not planned to permanently live at the J.B. Lane house because he was uncomfortable living in the backyard of Boardman's former in-laws. The plaintiff, who had divorced Boardman by the time of trial, characterized his relationship with her as "rocky," stating that they fought frequently. The plaintiff claimed that after these fights he would return to his mother's house. From his testimony, it appears that Boardman's three children by a previous marriage — ages nine, eleven, and thirteen — were a challenge to the couple's relationship. Three weeks before his accident, following a dispute with Boardman, the plaintiff was staying at his mother's house. One week immediately before the accident, however, he had returned to spending evenings with Boardman.

The address for the plaintiff listed on the accident report, apparently taken from his driver's license, is "167 J.B. Lane." According to him, when he renewed his driver's license in August 2001, he was contemplating marriage to Boardman and intended to change his address permanently. Because he was uncertain of the house number at J.B. Lane, his driver's license reflected "167" instead of Boardman's actual address of "185 J.B. Lane." His post-accident medical records at the University of Tennessee Medical Center and Patricia Neal Rehabilitation Center show the plaintiff's address as 185 J.B. Lane. He testified that Boardman had procured health insurance for him through her employer by claiming him as her "significant other." He noted that at the time of the accident, Boardman gave the hospitals the J.B. Lane address to assure there were no coverage issues regarding his treatment.

Upon the plaintiff's marriage to Boardman ten months after the accident, the couple moved to 104 Sandy Lane in Maynardville. While the plaintiff testified at trial that none of his furniture was ever moved to Boardman's house, it was apparently at this time that he finally moved his personal television and a china cabinet into Boardman's house. Other items of furniture, as well as the Model A car and his tools, remained at his mother's house. During their relationship, Boardman was paying for two different residences, the house on J.B. Lane at Sharps Chapel and the Sandy Lane house in Maynardville. The plaintiff had no ownership interest in either. The plaintiff apparently mowed Boardman's yard on a regular basis. However, other than purchasing pizzas and such on occasion and providing Boardman with a little money upon request, he claimed to have contributed very little to the household expenses. At the time of trial, the plaintiff was living with his mother.

In an examination under oath conducted on November 19, 2002, the plaintiff testified that he was "not exactly" living with his mother at the time of the accident. He indicated that he had been staying "[o]ff and on" with Boardman for approximately three years. During the examination, the plaintiff stated that, at the time of the accident, he was spending two-thirds of his time at Boardman's residence. He testified that about half of his clothes were located at the J.B. Lane address during this period. Some nine months after the accident, the plaintiff testified — contrary to his 2006 trial testimony — that he would go directly to Boardman's house after work. He admitted that he had been planning during the relevant time frame to permanently change his address to J.B. Lane and that he received some mail at that address. However, he maintained that any plans regarding marriage and living with Boardman were never concrete.

The plaintiff's maternal aunt, Betty Vandergriff, testified that, following the death of the plaintiff's father, she stayed for two weeks at her sister's home. After this, she visited the home approximately every other day. She observed the plaintiff there most of the times when she visited. She indicated that even if his mother was away, the plaintiff was often at the residence. According to Vandergriff, once the plaintiff began spending time with Boardman, there was not a significant decline in the amount of time he spent at his mother's home. During this time, she noted that the plaintiff's mother continued to do her son's laundry and that his personal effects were not moved to Boardman's home.

The plaintiff's sister, Regina Brock, resided in a house approximately 200 feet from her mother's house. Brock stated that she was usually aware when her brother was present at their mother's residence. Brock testified...