Appeal by defendant from order entered 25 August 2003 by Judge
John R. Jolly, Jr. in Johnston County Superior Court. Heard in the
Court of Appeals 13 September 2004.
Walker, Clark, Allen, Grice & Ammons, L.L.P., by Jeffrey T.
Ammons and Gay P. Stanley, for plaintiff-appellee.
Kelly & West Attorneys, by J. David Lewis, for defendant-
appellant.
MARTIN, Chief Judge.
Plaintiff brought this declaratory judgment action seeking a
determination that it did not provide coverage, under the terms of
the underinsured motorist provision of a policy issued to Delta
Lockwood, to defendant for injuries sustained in a motor vehicle
collision which occurred on 5 November 2000. After defendant filed
answer and the parties engaged in discovery, both parties moved for
summary judgment. The trial court allowed plaintiff's motion for
summary judgment, denied defendant's motion, and entered judgment
in favor of plaintiff. Defendant appeals. The materials in evidence before the trial court at the
summary judgment hearing tend to show that on 5 November 2000,
defendant was injured when his motorcycle collided with a vehicle
owned by Sharon Payton and operated by Andra Moore. Plaintiff also
insured the Payton vehicle and tendered its policy limits of
$30,000 to defendant. Plaintiff also provided coverage to
defendant's mother, Delta Lockwood, under a policy of insurance
providing, inter alia, underinsured motorist coverage in the amount
of $50,000. The policy contained the following definition:
“ Insured as used in this Part means: 1. You or any family member.”
(Emphasis in original). The policy defines family member as “a
person related to you by blood, marriage or adoption who is a
resident of your household. This includes a ward or foster child.”
Defendant made a claim against his mother's underinsured coverage
and plaintiff denied the claim, contending that defendant did not
meet the definition of an “insured” under the policy.
The evidence tended to show that at the time of the accident,
defendant worked as a facility manager at the Oasis Rest Home in
Benson, North Carolina. Part of defendant's compensation was
housing (including utilities) at the facility. Defendant, his wife
and children lived in three rooms of a four bedroom unit at the
Oasis; his mother occupied the fourth room. Defendant had a phone
listed in his name at this address and also paid for satellite
television service.
In addition to the Benson address, defendant maintained an
address in Mount Olive, which was given as his address for voterregistration purposes, his state and federal income tax returns,
his vehicle titles, and was the address where he received his bills
and most other mail. Defendant spent weekends at this address
while his mother managed the Oasis. When defendant was present at
the Oasis, his mother assisted her eldest daughter with her new
baby, at times staying with her overnight.
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“[S]ummary judgment would be appropriate only where, on
undisputed aspects of the . . . evidentiary forecast, there were no
genuine issues of fact and plaintiff was entitled to judgment as a
matter of law.”
Great American Ins. Co. v. Allstate Ins. Co., 78
N.C. App. 653, 657, 338 S.E.2d 145, 147-48 (1986),
disc. review
denied, 316 N.C. 552, 344 S.E.2d 7 (1986). Defendant contends the
foregoing evidence created a genuine issue of fact as to whether he
was a resident of Delta Lockwood's household so as to be entitled
to coverage under her policy. We agree.
“When an insurance policy fails to define a nontechnical term,
the term is given its ordinary meaning”.
United Services
Automobile Assn. v. Gambino, 114 N.C. App. 701, 705, 443 S.E.2d
368, 371 (1994),
disc. review denied, 337 N.C. 698, 448 S.E.2d 539-
40 (1994). This meaning “is a question of law for this Court, as
is the construction and application of the policy's provisions to
the undisputed facts” and
is reviewed
de novo.
Bruton v. N.C. Farm
Bureau Mut. Ins. Co., 127 N.C. App. 496, 498, 490 S.E.2d 600, 601-
02 (1997),
disc. review denied, 347 N.C. 573, 498 S.E.2d 379
(1998). Because the insurance policy at issue does not define'resident'
we use its ordinary meaning
.
State Auto Prop. & Cas.
Ins. Co. v. Southard, 144 N.C. App. 438, 440, 548 S.E.2d 546, 548
(2001),
disc. review denied, 548 S.E.2d at 548, 354 N.C. 370, 557
S.E.2d 535-36 (2001);
see also Monin v. Peerless Ins. Co., 159 N.C.
App. 334, 341-42, 583 S.E.2d 393, 398 (2003) (collecting cases
defining resident). 'Resident' is defined as “[o]ne who makes his
home in a particular place.” American Heritage Dictionary 1051 (2d
ed. 1985). The word 'resident' is “flexible, elastic, slippery and
somewhat ambiguous,” meaning anything from “a place of abode for
more than a temporary period of time” to “a permanent and
established home.”
Great American Ins. Co. v. Allstate Ins. Co.,
78 N.C. App. 653, 656, 338 S.E.2d 145, 147,
disc. review denied,
316 N.C. 552, 344 S.E.2d 7 (1986) (internal citations omitted).
In
Southard, we upheld the grant of summary judgment on the
definition of residence where the depositions and affidavits
revealed that the family member seeking coverage slept wherever he
happened to be at bedtime, carrying his clothing and toiletries
with him and never staying more than three nights in a row at the
insured's home, where he had neither a bedroom of his own nor a
key.
State Auto Prop. & Cas. Ins. Co. v. Southard, 144 N.C. App.
at 440-41,
disc. review denied, 548 S.E.2d at 548, 354 N.C. 370,
557 S.E.2d 535-36 (2001).
It is precisely these factors which are
disputed in the present case. Defendant lived with his mother at
an apartment in Benson during the week and spent weekends at the
address in Mount Olive where he received his personal mail. His
children were enrolled in school in Benson and family members,including defendant, had their own rooms in the Benson apartment.
However, from the pleadings and deposition testimony, there is a
genuine issue of fact as to whether defendant resided with his
mother in a “continuing and substantially integrated family
relationship,” allowing him to be a resident of more than one
household.
Davis v. Maryland Casualty Co., 76 N.C. App. 102, 106,
331 S.E.2d 744, 747 (1985). Because there is a genuine issue of
material fact concerning defendant's residence, summary judgment
was inappropriate. Therefore, we must reverse the entry of summary
judgment in this case and remand for further proceedings consistent
with this opinion.
Reversed and remanded.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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