Wainscott v. Ossenkop, 4476
| Decision Date | 11 September 1981 |
| Docket Number | No. 4476,4476 |
| Parties | Robert N. WAINSCOTT, Individually and as Personal Representative for the Estate of Deborah K. Wainscott, Appellant, v. Charles J. OSSENKOP and State Farm Fire and Casualty Company, Appellees. |
| Court | Alaska Supreme Court |
Charles Hagans, Sanford M. Gibbs, and Richard L. Waller, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for appellant.
Roger F. Holmes and Paul Waggoner, Biss & Holmes, Anchorage, for appellees.
Before RABINOWITZ, C. J., CONNOR and BURKE, JJ., and DIMOND, Senior Justice. *
This is an appeal from the entry of summary judgment against, and denial of a summary judgment in favor of, Robert N. Wainscott, individually and as personal representative of the estate of Deborah K. Wainscott, appellant's daughter. 1 The main issue presented is whether Deborah came within the definition of an "additional insured" under Wainscott's policy with State Farm Fire and Casualty Company ("State Farm"), the appellee. We hold that summary judgment should have been granted to Wainscott rather than State Farm, and accordingly reverse.
Some facts are not in dispute. The policy was issued on December 2, 1975. At that point, Robert, his wife Juanita, and their daughter Deborah 2 were all living together in the family home at 6410 Ridgeview Circle in Anchorage; but in the latter part of March 1976, Robert Wainscott moved out of the house, and in April Juanita filed for divorce. They were still living separately when, on June 5, 1976, Deborah Wainscott was fatally injured in an automobile accident.
Juanita intended her separation from Robert to be permanent, and indicated that when her husband had moved out he had left behind only a few stuffed animal heads. Robert stated that he had moved into an apartment into which he had moved "some" of his belongings, and it was his belief that a reconciliation was still conceivable. It is clear that, since he had the use of a company car, he did leave the three family cars with his wife and children, and continued to pay the premiums on the insurance policies. Additionally, he continued to own the house at 6410 Ridgeview Circle and to pay the heat, electricity, and telephone bills for the house as of the time of the accident. The divorce did not become final until December of 1976.
State Farm concedes that the driver of the vehicle in which Deborah was riding was negligent, that the vehicle was uninsured and that, if Deborah was a resident of her father's household at the time of the accident, she was covered under the uninsured motorist provisions of her father's policy. That policy expressly provides coverage for:
(1) the first person named in the declarations and while residents of his household, his spouse and the relatives of either.... (emphasis in original)
The principal question now before us is, therefore, whether Deborah Wainscott was, at the time of her fatal accident, a resident of her father's household within the meaning of Robert Wainscott's insurance policy. State Farm claims that she was not because at the time of the accident, Robert and Juanita Wainscott were separated and Robert was living away from the family home.
Appellant's arguments are essentially three: that the term "his household," as used in the definitional language of the policy, is ambiguous and, under established principles of insurance law, should be construed against the insurer; 3 that, even in the absence of ambiguity, coverage should be found here under the rule of construction that the court must construe the contract to provide the coverage a lay person would reasonably expect, given a lay interpretation of the policy language; 4 and that, even if the trial court did not err in its treatment of these two principles, it did err in focusing on the intent to separate as between Robert and his wife Juanita, rather than on the intent to separate as between Robert and his daughter Deborah. Proper resolution of these issues, Wainscott contends, entitles him to summary judgment, or at least demonstrates that there were factual issues which precluded the superior court from entering summary judgment for State Farm.
The superior court cited the case of Lumbermens Mutual Casualty Co. v. Continental Casualty Co., 387 P.2d 104 (Alaska 1963), in which we faced a situation parallel to the one presented here. There, the husband (the insured) moved out of the family house in late July of 1960; the wife filed suit for divorce on August 9; the policy was issued on August 19, with the insured listing the family home as his place of residence; and the wife was killed in an automobile accident in October of the same year. We emphasized that no general rule can be formulated and that the facts of each case must be examined to determine whether the named insured, his spouse, and his relatives have ceased to be residents of the same household. Id. at 106. We noted that "(i)f either (spouse) was eating and sleeping away from the family residence for a temporary period of time with the intention of returning, it could not ordinarily be said that their usual residence had been abandoned," and that under such circumstances, both spouses should still be regarded as residents of the same household. Id. After examining a variety of facts, we concluded that the insurer had failed to demonstrate an intent not to return on the part of the departing spouse. 5
Applying the criteria set out in Lumbermens, the superior court found that "there was no genuine issue of fact regarding the finality of the separation between (Wainscott) and his wife" and that "6410 Ridgeview Circle was not the household of the plaintiff under the terms of the insurance policies." 6
The issue is not, however, the intention of Robert and Juanita as to whether they planned to reconcile or remain apart; rather, the focus must be on the relationship between Robert and his daughter Deborah. If that separation was intended to be only temporary, then they would still be considered as being in the same household. 7 A permanent separation between husband and wife does not necessarily remove a child from the household of either; this is shown most graphically in cases indicating that a child of divorced parents may, depending on the facts, be regarded as being in the household of both. See, e. g., Miller v. United States Fidelity & Guaranty Co., 127 N.J.Super. 37, 316 A.2d 51, 54-55 (1974).
The fact that the superior court's finding of permanent separation was concerned with the inter-spousal relationship, rather than the parent-child relationship, requires reversal of the superior court's grant of summary judgment in favor of State Farm. Additionally, we believe it would be inappropriate to further rule that Wainscott should have been awarded summary judgment on this ground. Although there was evidence in the record to support a finding that Robert Wainscott intended his separation from Deborah to be only temporary, 8 there is also evidence in the record to the contrary. 9 We are therefore convinced that there is a genuine issue of fact presented, and that summary judgment is appropriate for neither side on this ground.
Wainscott contends that the term "while residents of his household" in the policy is ambiguous, in that it could have at least two meanings: the one urged by State Farm, which would require that the insured be a resident of the household; and an alternative meaning proffered by Wainscott, under which "his household" could mean "a house and appurtenances thereto owned by a person in which his family resides where that person furnishes the necessary support for the family." Under the latter interpretation, "his household" does not suggest co-residency, but rather ownership 10 of the premises and support of those residing there.
Certainly the word "his" can encompass purely possessory rights (e. g., "his land" denotes ownership) as well as membership (e. g., "his team" would denote membership on the team). "His household" occupies a hazy area which could denote either concept.
State Farm presents several points which it claims narrow this meaning. First, the case law has not distinguished "his household" from "same household," which Wainscott concedes would connote residency. 11 It is true that courts have not distinguished the two terms, and have cited cases using one term to assist in the interpretation of insurance policies containing the other. However, accepting this argument would hold Wainscott to too high a burden. Wainscott does not dispute the proposition that the two terms can be interchangeable; he argues only that the phrase "his household" is capable of at least two meanings, one of which could be interchangeable with "same household as the insured," and the other of which denotes ownership or possessory rights. Thus, Wainscott's position is not inconsistent with the case law, as no case brought to our attention has held that "his household" must have exactly the same meaning as "same household."
State Farm next argues, correctly, that the term must be interpreted in conjunction with the other terms and definitions contained in the policy. It points to two definitions contained in the policy to support its position, that of "resident" and that of "relative."
The definition of "resident" is:
Resident or Reside when used with reference to the named insured's household, means bodily presence in such household and intention to continue to dwell therein.
This definition sheds no light on the problem. The term "such household" clearly refers back to "named insured's household," which presents the same problem as "his household"; it could denote either possessory rights and support of, or residence in, the household. 12
The definition of "relative" is more problematic:
Relative means a relative of the named insured or of his spouse, who is a resident of the same...
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