STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY v. TRACEY L.
SOUTHARD, BEVERLY RUSSELL, THE ESTATE OF DAVID MORSE, and LUCILLE
S. SHARAR
Insurance--homeowners policy--fire--resident
The trial court did not err by granting summary judgment in favor of plaintiff insurance
company in its determination that decedent grandson was not a “resident” of his grandmother's
house where a fire occurred and was thus not entitled to insurance coverage under a homeowners
policy issued by plaintiff to defendant grandmother, because there was substantial evidence that
the grandson was not a resident but instead a frequent visitor to his grandmother's home,
including the facts that he did not make his home in that particular place, he did not live there
permanently, nor did he stay there for an extended period of time.
Wilson & Iseman by Urs. R. Gsteiger for plaintiff-appellee
Pinto, Coates, Kyre & Brown by David L. Brown and John I.
Malone for defendant-appellant
THOMAS, Judge.
Defendant Tracey L. Southard appeals from a grant of summary
judgment in favor of plaintiff State Auto Property and Casualty
Insurance Company. The primary issue here is whether David Morse
was a “resident” and thus entitled to insurance coverage under a
homeowners policy issued by plaintiff. For the reasons stated
herein, we affirm the trial court.
The facts are as follows: Defendant owned a house in Surry
County and rented it to defendant Beverly Russell (Russell). On 2January 1998, David Morse was a guest there when the house caught
on fire. Morse died from injuries sustained in the fire while the
house itself was extensively damaged.
Subsequently, defendant filed a negligence action in Southard
v. Estate of David R. Morse (file number: 98 CVS 977) against the
estate of David Morse (the estate) alleging Morse proximately
caused the fire. The estate made a demand for plaintiff to defend
and provide coverage for the estate under a policy issued to
Morse's grandmother, defendant Lucille Sharar (Sharar). Plaintiff
denied coverage saying that Morse was not a resident of Sharar's
household and therefore the homeowner's policy would not provide
liability coverage for any negligent acts of Morse.
Plaintiff then filed this declaratory judgment action to
determine whether the policy it issued to Sharar provides liability
coverage for Morse.
As is customary, Sharar's policy covers “insureds” in such a
situation. “Insureds” are defined in the policy as “you [Sharar]
and residents of your household who are your relatives.” It is not
disputed that Morse was Sharar's grandson, thus meeting the
requirement of being relatives, but there is a dispute as to
whether Morse was a member of Sharar's household.
At the time of the fire, Morse did not own a home or rent an
apartment. He was not living with his mother, Debra LaValley, at
her residence. Sharar testified that Morse maintained a bed and
clothes at her home and had his mail sent there. However,plaintiff contends testimony showed Morse in actuality did not have
a specific residence anywhere. He did not have a key to Sharar's
home and did not have a bedroom there. He did, however,
sporadically sleep on a mattress on the living room floor. Morse's
address for tax purposes, in fact, was Russell's residence, where
the fire occurred, not his grandmother's. Before the fire, Morse
had not slept at his grandmother's home in approximately ten days.
Plaintiff and defendant both moved for summary judgment with
the trial court granting summary judgment for plaintiff while
denying defendant's motion in an order filed 16 February 2000.
Defendant, the owner of the damaged house, appeals this order.
For our purposes, we combine defendant's two assignments of
error which are, respectively, 1) the trial court erred in denying
her motion for summary judgment where all of the evidence indicated
Morse was a resident of Sharar's household; and 2) the trial court
erred in granting summary judgment for the plaintiff where genuine
issues of material fact existed as to whether Morse was a resident
of Sharar's household. We find inadequate merit in defendant's
arguments.
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to
judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2000). An issue is genuine if it can be maintained by substantialevidence. Koontz v. City of Winston-Salem, 280 N.C. 513, 186
S.E.2d 897 (1972). In the instant case, the pivotal query is
whether Morse was a resident of Sharar's household.
“Resident” is not defined in the insurance policy at issue,
thus we apply its ordinary meaning. Integon Indemnity Corp. v.
Federated Mut. Ins. Co., 131 N.C. App. 323, 507 S.E.2d 53 (1998).
“Resident” is defined as “one who makes his home in a particular
place.” American Heritage Dictionary 1051 (2d ed. 1985). “Reside”
is defined as “to live in a place for an extended or permanent
period of time.” Id. Therefore, the question here is whether
there is evidence Morse lived at Sharar's home permanently or, at
least, for an extended period of time.
In Sharar's deposition, there was evidence presented that
Morse was indeed a resident of Sharar's home. He had a bed there
as well as a dresser full of his clothes located in Sharar's
kitchen. Morse used Sharar's home as his mailing address and kept
a toothbrush there.
Nevertheless, Sharar also testified that Morse was a
“wanderer” and usually spent the night wherever he happened to be
when he became sleepy. He actually carried a backpack with a
change of clothing and toiletries for this reason and did not have
a key to Sharar's home. Morse did not have a permanent bedroom
there and when he did spend the night at Sharar's, he almost always
slept on the sofa in the living room. A bed was purchased for him,
but he only slept in it once before he died. Sharar furthertestified that Morse never stayed with her for more than three
nights in a row. He did not pay rent or any other expenses at the
Sharar home. For tax purposes, Morse used Russell's home address.
The previous apartment of Morse's mother was listed as his address
with the N.C. Department of Motor Vehicles.
In addition, in plaintiff's complaint, it states in paragraph
ten, “Plaintiff contends that defendants Southard, Russell and the
Estate of David Morse are not entitled to coverage under the terms
of the policy at issue since Morse was not a resident of the
household of Sharar[.]” In her handwritten answer, Sharar wrote in
her corresponding paragraph ten, “deny admit *We are currently
unaware of the plaintiff's contentions. This is the first official
notice of such claims that we have received.” It is not clear
whether Sharar was admitting the allegation or admitting that
plaintiff had such a contention. However, notwithstanding Sharar's
answer, we find there is substantial evidence that Morse was not a
resident, but rather a frequent visitor to Sharar's home. He did
not make his home in that particular place, live there permanently,
or even stay there for an extended period of time. Accordingly, we
reject defendants' assignments of error and affirm the trial
court's denial of summary judgment for defendant and grant of
summary judgment in favor of plaintiff.
AFFIRMED.
Judges MARTIN and BIGGS concur.
*** Converted from WordPerfect ***