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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff,
v. PATRICIA LOWE, NATIONWIDE MUTUAL INSURANCE COMPANY, and
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendants
Filed: 7 November 2006
Insurance_-homeowners_person living with boyfriend_resident of parents' home
A genuine issue of material fact existed as to whether the caretaker of dogs owned by her
boyfriend's parents (the Welborns), with whom the caretaker, her boyfriend and their children
were living, was a resident of her parents' home at the time the dogs caused a bicyclist to suffer
injuries so as to preclude summary judgment on the issue of whether the caretaker was insured
under a homeowners policy issued to her parents where the caretaker's deposition showed that
she had lived most of her life before and after the accident at her parents' house; she only stayed
at the Welborn house for a few months and moved back into her parents' house shortly after the
accident; she did not pay rent or any share of the utilities while staying at the Welborn house; she
had moved out of her parents' house for temporary periods on previous occasions; her mail,
including her children's monthly Medicaid cards, was mailed to her parents' house; and while
her parents' house and the Welborn house were in separate school districts, she did not register
her children at the school located in the Welborns' home school district.
Appeal by defendants from order entered 9 December 2005 by
Judge W. Douglas Albright in Guilford County Superior Court. Heard
in the Court of Appeals 18 October 2006.
Pinto Coates Kyre & Brown, P.L.L.C., by David L. Brown and
John I. Malone, Jr., for plaintiff-appellee.
Teague, Rotenstreich & Stanaland, LLP, by Paul A. Daniels, for
Patricia Lowe, Nationwide Mutual Insurance Company, and
Nationwide Mutual Fire Insurance Company (collectively,
defendants) appeal from an order entered 9 December 2005 granting
North Carolina Farm Bureau Mutual Insurance Company's (plaintiff)
motion for summary judgment and denying defendants' motion for
summary judgment. We reverse and remand.
Patricia Lowe (Lowe) and Michael Welborn (Welborn) were
romantically involved, did not marry, and procreated two children.
In 2000, Welborn was arrested and convicted of illegal drug
possession and sent to prison. Lowe and the children lived with
her parents, Daniel and Deborah Lowe, in Thomasville, North
Carolina (the Lowe house). The Lowe house is insured under a
homeowner's insurance policy issued by the Nationwide defendants.
Welborn was released from prison in March 2001 and Lowe
resumed the relationship with Welborn, provided he avoided illegal
drugs. Lowe's parents did not agree with her seeing Welborn. They
told Lowe if she resumed her relationship with Welborn, she could
not live in the Lowe house.
In May 2001, Lowe and her two children moved out of the Lowe
house and into Welborn's parent's house in Lexington, North
Carolina (the Welborn house). The Welborn house was insured
under a homeowners insurance policy issued by plaintiff.
On 11 August 2001, Lowe and her children were alone at the
Welborn house. Lowe was caring for the Welborn's two dogs at the
Welborn house. While Lowe was preparing her children to go to a
soccer team sign up, she let the two dogs out of the Welborn house.
While the dogs were outside, they chased a bicyclist, Glenda Green
(Green). The dogs caused Green to fall from the bike and she
suffered severe injuries.
Plaintiff determined Lowe was an insured under the homeowners
policy on the Welborn house. Plaintiff settled Green's claim for$65,000.00 and secured a release of all claims against Lowe and the
In late August or early September 2001, Lowe and the children
moved back into the Lowe house after Welborn resumed using drugs.
On 5 August 2004, plaintiff brought a declaratory judgment action
to construe defendants' insurance policy covering the Lowe house.
Plaintiff alleged: (1) the Nationwide defendants provided an
insurance policy to Lowe's parents; (2) Lowe was a resident of the
Lowe house on 11 August 2001; (3) Lowe was responsible for
supervising the dogs which attacked Green; and (4) it was entitled
to reimbursement from defendants in the amount paid in excess of
its pro rata share to settle Green's claim.
On 17 October 2005, plaintiff moved for summary judgment. On
31 October 2005, defendants cross-motioned for summary judgment.
On 9 December 2005, the trial court entered summary judgment in
favor of plaintiff stating it was entitled to recover all sums
paid in excess of its pro rata share of the settlement of
$65,000.00 paid to [Green] on behalf of [Lowe]. The trial court
denied defendants motion for summary judgment. Defendants appeal.
Defendants contend: (1) the trial court erred by granting
plaintiff's motion for summary judgment and denying defendants'
motion for summary judgment and (2) presuming Lowe was a resident
of her parent's home, plaintiff cannot recover from defendants
under a theory of subrogation because she was an insured under
III. Standard of Review
Summary judgment is appropriate in a declaratory judgment
action when there are no genuine issues of material fact and either
party is entitled to judgment as a matter of law. Blades v. City
of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 42-43 (1972).
An issue is material if the facts alleged are
such as to constitute a legal defense or are
of such nature as to affect the result of the
action, or if the resolution of the issue is
so essential that the party against whom it is
resolved may not prevail.
Mecklenburg County v. Westbery, 32 N.C. App. 630, 634, 233 S.E.2d
658, 660 (1977) (citing Zimmerman v. Hogg & Allen, 286 N.C. 24, 209
S.E.2d 795 (1974); McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457
Summary judgment is a drastic remedy. Savings & Loan Assoc.
v. Trust Co., 282 N.C. 44, 51, 191 S.E.2d 683, 688 (1972). We
review the record in the light most favorable to the non-moving
party, giving them the benefit of all reasonable inferences.
Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289, 291
(1974) (citations omitted). The burden is upon the party moving
for summary judgment to establish no genuine issue of fact remains
for determination and that he is entitled to judgment as a matter
of law. Savings & Loan Assoc., 282 N.C. at 51, 191 S.E.2d at 688.
Defendants contend the trial court erred by granting summary
judgment for plaintiff because at a minimum, the facts taken in
the light most favorable to the Defendants demonstrate that thereis at least a genuine issue of material fact as to whether [Lowe]
was a resident of [the Lowe house] on 11 August 2001. We agree.
Both insurance policies define an insured as:
3. Insured means you and residents of your
household who are:
(a) Your relatives; or
(b) Other persons under the age of 21 and in
the care of any person named above.
Under Section II [Liability], insured also
(c) With respect to animals or watercraft to
which this policy applies, any person or
organization legally responsible for these
animals or watercraft which are owned by you
or any person included in 3.a. or 3.b. above.
(Emphasis supplied). For plaintiff to prevail, it must show no
genuine issue of material fact exists that Lowe was a resident
relative of the Lowe household at the time of the accident on 11
August 2001, when the facts are viewed in the light most favorable
The words 'resident,' 'residing' and 'residence' are in
common usage and are found frequently in statutes, contracts and
other documents of a legal or business nature. They have, however,
no precise, technical and fixed meaning applicable to all cases.
Insurance Co. v. Insurance Co., 266 N.C. 430, 435, 146 S.E.2d 410,
414 (1966). Our Supreme Court has stated:
Residence is sometimes synonymous with
domicile. But when these words are accurately
and precisely used, they are not convertible
terms. Residence simply indicates a person's
actual place of abode, whether permanent or
temporary; domicile denotes a person's
permanent dwelling-place, to which, whenabsent, he has the intention of returning.
Hence, a person may have his residence in one
place, and his domicile in another.
Sheffield v. Walker, 231 N.C. 556, 559, 58 S.E.2d 356, 359 (1950)
(internal citations and quotations omitted).
This Court has also stated, although in a different factual
context, that it is generally recognized that a person may be a
resident of more than one household for insurance purposes. Davis
v. Maryland Casualty Co., 76 N.C. App. 102, 106, 331 S.E.2d 744,
746 (1985) (citing Travelers Insurance Co. v. Mixon, 118 Ga. App.
31, 162 S.E.2d 830 (1968)).
Based on deposition testimony, defendants contend Lowe was a
resident of and domiciled at only the Welborn house on 11 August
2001. Lowe indicated she never intended to reside with her parents
at the Lowe house again when she moved out in May 2001. Lowe
intended to live at the Welborn house until such time as she and
Welborn had saved enough money to obtain a home of their own. Lowe
did not leave any of her possessions at the Lowe house after May
2001. Lowe requested her automobile payment information be sent to
the Welborn house. Lowe began receiving bulk mail at the Welborn
On the other hand and based on Lowe's deposition, plaintiff
contends Lowe was a resident of the Lowe house on 11 August 2001.
Lowe had lived most of her life both before May 2001 and after 11
August 2001 at the Lowe house. Lowe only stayed at the Welborn
house for a few months and moved back into the Lowe house in
September 2001. Lowe did not pay rent or any share of theutilities while staying at the Welborn house. Lowe had moved out
of the Lowe house for temporary periods on previous occasions, each
time returning to live at the Lowe house. Lowe's mail, including
her children's monthly Medicaid cards, was mailed to the Lowe house
between May 2001 and September 2001. Lowe's Nationwide auto
insurance bills were mailed to the Lowe house. While the Lowe
house and the Welborn house were located in separate school
districts, Lowe did not register her children at the school located
in the Welborn's home school district.
Reviewed in the light most favorable to defendants, these
facts establish a genuine issue of material fact exists whether, at
the time of the accident, Lowe was a resident of the Lowe house.
This conflicting evidence should be answered by the trier of fact
and not on a motion for summary judgment. See Lumbermens Mutual
Casualty Co. v. Smallwood, 68 N.C. App. 642, 646, 315 S.E.2d 533,
536 (1984) (The order of the trial court granting the plaintiff's
motion for summary judgment reversed upon a finding that there was
a genuine issue as to the question of residency).
A genuine issue of material fact exists as to whether Lowe was
a resident in the Lowe house on 11 August 2001. The trial court's
judgment granting plaintiff's motion for summary judgment is
reversed and this cause is remanded for further proceedings. In
light of our decision, we do not address defendants' remaining
assignment of error.
Reversed and Remanded.
Judges BRYANT and LEVINSON concur.
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