Am. Nat'l Prop. v. Burns
Am. Nat'l Prop. v. Burns
Opinion of the Court
In this appeal, David James Burns and Robin Burns (as representatives of Tyler Burns) (collectively, the "Burnses") seek review of a district court order granting summary judgment in favor of American National Property and Casualty Company ("American National").
In October 2014, then-sixteen-year-old Phillip Sam shot and killed Tyler Burns. The Burnses brought a wrongful death action in state court against, among others, Phillip's mother, Dora Sam, alleging that she had negligently stored the handgun used in the shooting. Dora was a named policyholder of an American National homeowner's policy (the "Policy") effective at the time of the shooting, and she demanded that American National indemnify and defend her in the wrongful death action. American National then filed an action in federal court seeking a declaration that there was no coverage.
The district court granted summary judgment for American National. In relevant part, it concluded first that Phillip was a "resident" of Dora's home at the time of the shooting. And because the Policy defines "insureds" to include relatives who were "resident[s]" of a named insured's home, and excludes personal liability coverage for intentional and criminal actions by "any insured," the district court determined that there was no coverage as to Dora for the shooting. The court also ruled that this result was not unsettled by the Policy's inclusion of a severability clause, concluding that to determine otherwise would render the "any insured" exclusion meaningless.
The Burnses now raise two claims of error. First, they argue that Phillip was not a resident of Dora's household at the time of the shooting because he had been staying with his father, Nathan Sam, at that time and, relatedly, had expressed an intent or desire to live with Nathan. Second, they argue that there is an ambiguity introduced by including both an "any insured" exclusion and a severability clause in the same policy, and that this ambiguity must be construed in favor of coverage for Dora. The Burnses have also filed two motions - one a motion to certify issues presented in this case to the Wyoming Supreme Court, and the other to seal Volume VIII of the Appendix.
For the reasons explained below, we conclude that "resident" as contained in the Policy is an ambiguous term that might reasonably be construed in favor of coverage for Dora, and we reverse and remand on this basis. Further, we deny both the motion to certify and the motion to seal.
I
After Dora and Nathan divorced in 2013, a decree gave them joint legal custody of their minor children, including Phillip, with Dora listed as the "primary residential *1048custodian." Aplts.' App. at 370 (Divorce Decree, filed Sept. 10, 2013). In deference to Nathan's itinerant work schedule, Nathan was to have physical custody of the children when he was in Cheyenne, Wyoming; Dora was to have the children "all other times." Id. Consistent with the decree, Dora testified that Phillip lived with her and "sometimes lived with his dad." Id. at 225 (Dora Sam Dep., filed Oct. 6, 2017). Nathan also discussed this arrangement at his deposition, confirming that the children would "come over and spend time with [him] when [he was] in town." Id. at 234 (Nathan Sam Dep., filed Oct. 6, 2017).
From roughly October 1 to October 5, 2014, Phillip, then sixteen years old, stayed with Nathan, who had returned to Cheyenne from a work trip. At one point on October 5, Nathan dropped Phillip off at Dora's house for five or six minutes so Phillip could pick up his work uniform. Though Dora was out of town, Nathan and Phillip nevertheless "texted [her] ahead of time[]" before Phillip entered the house. Id. at 237. While he was inside, Phillip did not just grab his work uniform; he also stole Dora's boyfriend's semi-automatic pistol from the master bedroom closet. Phillip and Nathan then returned to Nathan's house for about an hour, at which time Nathan dropped Phillip off at a friend's house.
Early the following morning, Phillip shot and killed Tyler Burns with the pistol he took from Dora's house. When he was subsequently booked into jail, Phillip provided Nathan's address as his residence. Phillip was ultimately convicted of first-degree murder and related crimes. See Sam v. State,
In September 2016, following Phillip's conviction, the Burnses brought a wrongful death and survival action against Dora, Dora's boyfriend, and Phillip in Wyoming state court for damages associated with Tyler's death. Dora, facing a claim for negligent storage of a handgun, demanded that American National indemnify and defend her under her homeowner's policy.
American National thereafter filed this action in federal court, naming Dora and the Burnses as defendants and seeking a declaration that insurance coverage did not exist. Moving for summary judgment, American National noted that the Policy's personal liability coverage does not apply to intentional or criminal actions by "any insured," Aplts.' App. at 26, 28 (Ex. 1 to Compl., filed Dec. 15, 2016), and, furthermore, that "insured[s]" under the Policy include the named policyholder "and the following residents of [their] household: a. [their] relatives[;] b. any other person under the age of 21 who is in the care of any person named above," id. at 15 (emphasis added). Though the Policy does not further define "resident," American National relied on these provisions to argue that Phillip was an "insured" - and thus (in its view) no coverage existed as to Dora for the shooting - because he was Dora's minor son who resided with her and was "in [her] care." Id. at 196-97 (Pl.'s Br. in Supp., filed Sep. 14, 2017). American National also argued that the Policy's severability clause, which states that "[t]his insurance applies separately to each insured," id. at 30, did not preclude exclusions of coverage to Dora for the intentional actions of other insureds. The Burnses opposed, arguing that Phillip was not a resident of Dora's home at the time of the shooting and that the severability clause created an ambiguity that had to be construed in favor of coverage for Dora.
The district court granted American National's motion, ruling first that Phillip was a "resident" of Dora's home at the time of the shooting because, inter alia, Dora was *1049the "primary residential parent"; a person can have more than one residence at a time and can temporarily leave home without changing residences; and it is unclear whether a minor can form the intent to change residences, if such intent is necessary. Id. at 349-50 (Order Granting Pl.'s Mot. for Summ. J., dated Jan. 3, 2018). And because Phillip was a "resident" of Dora's household and also her relative, he was an insured under the Policy, and there was thus no coverage as to Dora for Phillip's intentional or criminal actions. The district court further concluded that the Policy's severability clause did not create an ambiguity that had to be construed in favor of coverage, reasoning that to hold otherwise would "basically render the exclusions meaningless." Id. at 357.
Following the district court's entry of judgment, the Burnses timely filed a notice of appeal, arguing that Phillip was not a "resident" of Dora's household at the time of the shooting and that the Policy's severability clause created an ambiguity that had to be construed in favor of coverage for Dora.
II
We "review the district court's entry of summary judgment de novo, applying the same standards as the district court." Bekkem v. Wilkie,
Under Wyoming law - the substantive law we apply in this diversity action, see, e.g., Scottsdale Ins. Co. v. Tolliver,
III
To determine whether Phillip was a "resident" of Dora's household within the meaning of the Policy at the time of the shooting, we first consider whether the term "resident" is ambiguous under Wyoming law. Based on statements from the Wyoming Supreme Court, we conclude that it is.
*1050Two cases primarily inform this conclusion, the first being Wyoming Insurance Guaranty Ass'n v. Woods,
The second case, issued nearly a decade later by the Wyoming Supreme Court, is T.M. ex rel. Cox v. Executive Risk Indemnity Inc., supra. There, the Wyoming Supreme Court reiterated that, absent a provided definition, the meaning of "resident" is ambiguous. See
Thus, through Woods and T.M., the Wyoming Supreme Court has indicated that left undefined - as it is in the Policy - the term "resident" is ambiguous and subject to more than one reasonable interpretation. See
IV
Because we conclude that the term "resident" in the Policy is ambiguous, we now ask whether that term is "fairly susceptible" to an interpretation under Wyoming law that would be consistent with providing Dora Sam coverage in this case.
*1051We conclude that such an interpretation exists. First, as Woods illustrates, "resident" may be interpreted such that an individual cannot simultaneously hold multiple residences. See
And if we read "resident" in the Policy to allow for only one residence at a time- which we have license to do, as Woods shows-that term can be further read such that Phillip had two alternating residences, with his residence at any time being a function of which parent he was staying with. After all, per the divorce decree, Phillip stayed with his "primary residential custodian"-Dora-at "all other times" besides when Nathan was in town. Aplts.' App. at 370 (emphasis added). These periodic stays with Nathan-also Phillip's residential custodian, though not the "primary" one, id.-can reasonably be deemed the periodic taking up of a residence by Phillip at Nathan's home; these stays were part of a "permanent or recurrent... or ... habitual" series of visits to Nathan's house, which "qualif[ies] as a residence." Woods,
Under such a reading of "resident," Phillip was a resident of Nathan's, and not Dora's, home at the time of the shooting. Specifically, Nathan was in town at the *1052time, and Phillip had been staying with him. Cf. Vanguard Ins. Co.,
Furthermore, Phillip's actions both shortly before and shortly after the shooting help confirm that, to the extent that Phillip only had one residence at the time, that residence was Nathan's home. Cf. Allstate Ins. Co. v. Mocaby,
Our decision today should not be understood as a definitive pronouncement on the best or most reasonable reading of the term "resident"; instead, our interpretation of this term here reflects our adherence to Wyoming law's command for courts to construe ambiguities in insurance policies strictly in favor of coverage. See, e.g., T.M.,
V
A
The Burnses filed a motion to certify questions to the Wyoming Supreme Court. We deny this motion. First of all, the Burnses seek this relief for the first time on appeal-that is, only after they failed to prevail on their interpretive arguments before the district court. Ordinarily, such circumstances strongly disincline us to grant certification. See, e.g., United States v. Burkley,
B
We also deny the Burnses' motion to seal Volume VIII of the Appendix because we conclude that they have not "overcome a presumption ... that the public has a common-law right of access to judicial records." Eugene S. v. Horizon Blue Cross Blue Shield of N.J.,
VI
Because we conclude that Phillip was not a "resident" of Dora's household at the time of the shooting, we REVERSE the district court's entry of summary judgment and REMAND for proceedings consistent with this order and judgment.
The court previously granted the motion to seal "provisionally," taking under advisement the "ultimate propriety of keeping the materials identified in the [m]otion sealed." Order, No. 18-8006, at *2 (10th Cir., filed June 25, 2018).
Wyoming law - as mentioned supra - requires courts to interpret ambiguous insurance policy provisions "in favor of coverage," T.M.,
Our approach here is consistent with the reasoning behind the aforementioned Wyoming law requirement referred to as the "rule of strict construction against the insurer." Sonnett v. First Am. Title Ins. Co., , 804 (Wyo. 2013) (quoting Hulse v. First Am. Title Co. of Crook Cty., , 134 (Wyo. 2001)). This rule reasons that ambiguity in an insurance policy should not defeat a claim for coverage because "insurance policies represent contracts of adhesion where the insured has little or no bargaining power to vary the terms" but where the insurance company has wide latitude to alter terms and clarify any potential ambiguities in its favor when drafting the policy. Century Sur. Co. v. Jim Hipner, LLC, , 787 (Wyo. 2016) (quoting Evans v. Farmers Ins. Exch., , 286 (Wyo. 2001)). In other words, an insurance company cannot rely on ambiguity to defeat coverage when it was exclusively empowered to clarify that ambiguity in advance, and courts should follow this principle even if it requires interpreting the same ambiguous policy term differently in different cases based solely on what would promote coverage in each case for the individual claiming it. See Vanguard Ins. Co.,
Because we reverse the entry of summary judgment on the basis that the ambiguous term "resident" may be resolvable in favor of coverage for Dora, we do not reach the Burnses' second issue on appeal, i.e., whether the inclusion of a severability clause in the same policy as an "any insured" exclusion created an ambiguity that could give rise to coverage for Dora.
Reference
- Full Case Name
- AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY v. David James BURNS Robin Burns, as personal representative of Tyler Burns, and Dora Sam
- Status
- Published