Federated American Insurance v. Childers
Federated American Insurance v. Childers
Opinion of the Court
This action at law, brought by plaintiff insurer for declaratory relief, was tried to the court. Plaintiff appeals from the judgment determining that defendant Ryder was covered under his father’s automobile liability insurance policy.
The sole issue on this appeal is whether the trial court erred in finding that Ryder was a "relative * * * who is a permanent resident of the same household” as his father, and thus entitled to coverage under the non-owned automobile provision of his father’s "Family Automobile Policy.”
Prior to graduating from high school, Ryder resided with his father and brother in the family home in Grants Pass. In the summer of 1975, Ryder, age 19, decided to enroll at Lane Community College in Eugene, where he hoped to gain a position on the college baseball team. Arriving in Eugene too late to begin the fall term, he returned to Grants Pass and discussed with his father the possibility of living in an apartment in Eugene in order to avoid out-of-district tuition for the winter term. Consequently, he moved to Eugene and occupied his time during the fall by practicing with the college baseball team. His father sent
On June 18, 1976, an accident occurred in which defendant Childers was seriously injured. The automobile involved in the accident was owned by Chil-ders, but was being driven with his permission by Ryder.
The question of whether a person is a resident of the household of a named insured has continued to be treated by our Supreme Court as a fact issue to be resolved by the trier of fact. Waller v. Rocky Mtn. Fire & Casualty, 272 Or 69, 71-72, 535 P2d 530, 531-32 (1975); Schehen v. North-West Insurance, 258 Or 559, 484 P2d 836 (1971). However, the court has required that there be sufficient evidence that the person seeking coverage and the insured "dwell or live together” as members of a household, in order to survive a motion for directed verdict. Schehen v. North-West Insurance, supra at 561-62. In Schehen, a dentist moved from Eugene to Klamath Falls, where he purchased a home and practiced dentistry for four years. By so doing, he established residence in Klamath Falls. His adult daughter and her teenage children, who theretofore had lived with him, remained in his prior home in Eugene. The Supreme Court held that although Dr. Schehen visited his daughter and her teenage children and gave them financial support, this was not sufficient evidence to submit to a jury that he
Because there is evidence to support the finding below, we need not decide whether, under Schehen, a child who is temporarily away from home for camp, school, college, summer employment, or the like, loses protection under a "relative resident” clause of a family automobile policy the moment he ceases to physically "dwell or live” with his family.
It has been held that a child may be temporarily absent from the household, or indeed may have more than one residence, without necessarily losing the protection afforded to a "resident of the household” under an insurance policy. See Aetna Casualty & Surety Co. v. Means, 382 F2d 26, 28 (10th Cir 1967); Detroit Auto. Inter-Insurance Exchange v. Feys, 205 F Supp 42 (ND Cal 1962); Travelers Indem. Co. v. Mattox, 345 SW2d 290, 292 (Tex Civ App 1961); Annotation, 93 ALR3d 420 (1979). For example, in Aetna Casualty & Surety Co. v. Means, supra, the court, applying Oklahoma law, held that despite the fact that insured’s son was married and had his own automobile insurance policy, and despite testimony by both the insured and his son that the son was not a resident of the insured’s household at the time of the accident, evidence that the son was a minor, lived away at college, had a room and kept clothing in the insured’s house,
The approach taken by our Supreme Court in Waller v. Rocky Mtn. Fire & Casualty, supra, is applicable in this case. There, a 24-year-old son left home for service in the Navy. Upon his discharge he returned to his parents’ home for about a year. He then moved out-of-state and took a full-time job, but left many of his belongings at his parents’ home and visited frequently. The trial court found that the son was no longer a resident of his parents’ household entitled to coverage under a "relative resident” clause of their automobile insurance policy. The Supreme Court upheld the finding on the basis that evidence that the son was an adult, lived in another state, worked full time, and did not intend to return to his parents’ home, plus the reasonable inferences to be drawn from that evidence, supported the further inference that he did not "dwell or live” with his parents. 272 Or at 75.
In this case, there was conflicting evidence. On his insurance application form the insured did not list Ryder as a resident of his household, because Ryder had been living away at school dining the year and because the insured believed that listing Ryder would increase his premium. Ryder in fact was temporarily
As the Supreme Court did in Waller, we uphold the trial court’s factual determination regarding residency within the meaning of a "relative resident” clause, because there is evidence and reasonable inferences to be drawn therefrom which support that finding. Hassan v. Guyer, 271 Or 349, 352, 532 P2d 227 (1975); White v. Bello, 276 Or 931, 933, 556 P2d 1362 (1976).
Affirmed.
That policy provides in pertinent part:
"Persons Insured: The following are insureds under Part I:
******
"(b) With respect to a non-owned automobile,
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"(2) any relative * * *
"Definitions: Under Part I;
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" 'Relative’ means a relative of the named insured who is a permanent resident of the same household;
« * * * * *
" 'Non-Owned Automobile’ means an automobile or trailer not owned by or furnished for the regular or frequent use of either the named insured or any relative, other than a temporary substitute automobile; but does not include any automobile or trailer used without the permission of the owner.”
We note that in Schehen v. North-West Insurance, 258 Or 559, 484 P2d 836 (1971), the insured moved away from his daughter and established residence in a distant city, while in this case the insured’s son was temporarily away from home for college and was found not to have established a permanent residence elsewhere.
Examination of the eases discussed in this annotation reveals that while some jurisdictions treat "relative resident” questions as fact issues and others treat them as a mixed question of fact and law, all agree that such a clause can (and often does) include a child away from home.
Dissenting Opinion
dissenting.
The majority errs in treating the issue solely as a matter of fact. It is elementary that before we can review the sufficiency of any finding, we must first determine what legal issue the facts must be sufficient to establish. This case presents a preliminary legal issue of what is meant by the phrase "relative * * who is a permanent resident of the same household [as the insured].” Only after determining as a matter of law the definitional requirements of the term is it proper to proceed to the factual issue of whether the finding is supported by the evidence. That is essentially what the Supreme Court did in Schehen v. North-West Insurance, 258 Or 559, 484 P2d 836 (1971).
The fallacy of the majority is that it treats the "permanent resident” clause as having a fixed legal meaning which is the same in all situations, contexts and jurisdictions as a matter of law and then holds that we cannot say there was no evidence to support a
The term "permanent resident” is material in this case because it is used in an insurance contract, not in a statute. Accordingly, it should be construed under the well-established principles of contract law applicable to insurance policies. Those principles are well summarized in Shadbolt v. Farmers Insur. Exch., 275 Or 407, 410-11, 557 P2d 478 (1976):
"We have said, however, that when words or terms of a general nature are used in an insurance policy, such words or terms may be ambiguous, in the legal sense, when they could reasonably be given a broader or a narrower meaning, depending upon the intention of the parties in the context in such words are used by them.
"We have also said that an insurance policy should be construed 'according to its character and its beneficent purposes, and in the sense that the insured had reason to suppose that it was understood.’
"Finally, we have said many times that if there is an ambiguity in the terms of an insurance policy, any reasonable as to the intended meaning of such terms will be resolved against the insurance company and in favor of extending coverage to the insured.” (Footnotes omitted.)
The intention of the parties and the sense in which the insured must have understood the term is demonstrated beyond serious question by the father’s conscious decision not to insure his son. On the order for insurance, he listed himself as the only driver. Where asked to list "Ages of children residing in household,”
Applying the principles of Shadbolt, there is no reason for us to construe the contract differently than the parties did. Under the legal meaning of the term which was understood and intended by the parties to the contract, the facts in this case are insufficient to support a finding of coverage.
Reference
- Full Case Name
- FEDERATED AMERICAN INSURANCE COMPANY, Appellant, v. CHILDERS, Et Al, Respondents
- Cited By
- 7 cases
- Status
- Published