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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 2013-569
SUSAN R. WHITE & a.
v.
VERMONT MUTUAL INSURANCE COMPANY & a.
Argued: June 18, 2014
Opinion Issued: November 21, 2014
Nixon, Vogelman, Barry, Slawsky & Simoneau, P.A., of Manchester
(Leslie C. Nixon on the brief and orally), for the petitioners.
Primmer Piper Eggleston & Cramer PC, of Manchester (Gary M. Burt on
the brief and orally), for the respondent, Vermont Mutual Insurance Company.
Law Office of V. Richards Ward, Jr., PLLC, of Wolfeboro (V. Richards
Ward, Jr. on the memorandum of law), for the respondent, Charles Matthews.
LYNN, J. The petitioners, Susan and Peter White, appeal an order of the
Superior Court (Tucker, J.) denying their petition for a declaratory judgment
that respondent Charles Matthews (Matthews) was covered under a
homeowner’s insurance policy issued to his mother by respondent Vermont
Mutual Insurance Company (Vermont Mutual). We affirm.
The following facts were found by the trial court or are supported by the
record. This case arose when a dog owned by Matthews caused an accident
that injured Susan White on July 3, 2011. The incident occurred while
Matthews was staying with friends at a home owned by his mother in
Moultonborough. The Moultonborough home was covered by an insurance
policy issued to Matthews’s mother by Vermont Mutual. The policy defined an
“insured” to include “residents of your household who are . . . your relatives.”
Matthews’s mother also owns a home in Naples, Florida, where she lives for
approximately half of the year, and where Matthews usually visits only at
Christmas. The petitioners and Matthews claim that the Florida residence is
Matthews’s mother’s primary residence, but they do not claim that Matthews is
a resident of the Florida home.
Matthews was born in Boston and lived in Massachusetts until he moved
to Moultonborough when he was thirteen years old. As a teenager, he lived at
the Moultonborough residence and attended Moultonborough Academy. In
2000, after graduating from Boston University, he began working and living in
Massachusetts full-time. In 2005, he bought a building in Somerville,
Massachusetts, which he converted into condominium units. He sold several
units and retained three: one for his own use, and two for rentals. Since
2005, Matthews has served as the head of the condominium association for
that building.
Matthews has been unemployed since 2009 and receives financial
assistance from his mother. He uses his Somerville address on his resume.
Matthews testified that since graduating from college, if asked, he tells people
that he lives in Massachusetts. The last time Matthews filed tax returns prior
to the 2011 incident leading to this case, he used his Somerville address. His
only telephone has a Massachusetts area code.
Matthews testified that he resides in Massachusetts for 80% or more of
the year. However, he has not changed his voting registration since he first
registered to vote when he was eighteen, and he is still registered to vote in
Moultonborough. He voted in Moultonborough in the 2012 election, a month
before the hearing in this case. Matthews also has a New Hampshire driver’s
license and his vehicle is registered in New Hampshire. However, his decision
to register his car in New Hampshire was motivated by his desire to avoid
buying automobile insurance, which is required in Massachusetts.
Matthews refers to the Moultonborough house as his mother’s home, not
his home. He goes to Moultonborough occasionally for vacations, long
weekends, and to visit his family. He typically notifies his mother in advance to
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obtain her permission to stay at the house, especially if he is bringing friends.
However, he does not refer to the Moultonborough home as his vacation home
either. When at the Moultonborough home, Matthews uses the room he
occupied while growing up, and he keeps some of his personal belongings at
the house. Matthews has a key to the Moultonborough home and a decal on
his mother’s old car, which he is now using, that allows him to enter the
development in which the house is located. His boating license was issued in
New Hampshire and he used to own a boat, which was formerly his mother’s,
that was registered to the Moultonborough address as well.
Following the 2011 incident involving Matthews’s dog, the petitioners
sought a declaratory judgment that Vermont Mutual is responsible for any
damages they may recover from Matthews. After a bench trial, the trial court
denied the petition, as well as the petitioners’ motion for reconsideration. This
appeal followed.
The interpretation of insurance policy language is a question of law for
us to decide. Belanger v. MMG Ins. Co., 153 N.H. 584, 587 (2006). However,
we review the trial court’s factual findings deferentially, our task not being to
determine “whether we would have found differently but to determine whether
a reasonable person could find as did the trial judge.” U.S. Fidelity & Guaranty
Co., Inc. v. Johnson Shoes, Inc., 123 N.H. 148, 153 (1983). Pursuant to RSA
491:22-a (2010), Vermont Mutual bears the burden of proving that its policy
does not provide coverage.
Although Matthews is one of the respondents in this action, his
arguments are in line with the petitioners’ because he is seeking coverage
under the Vermont Mutual policy at issue. The petitioners and Matthews
assert that Matthews is a “resident relative” within the meaning of his mother’s
insurance policy. In furtherance of this argument, the petitioners contend
that: (1) the trial court erred in ruling that a reasonable person in the position
of the insured, when interpreting the policy, would not consider Matthews a
resident of his mother’s Moultonborough household on the date of Susan’s
injury; (2) the trial court erred in basing its ruling almost solely on Matthews’s
testimony that he subjectively considered Massachusetts to be his “primary”
residence; (3) under the terms of a homeowner’s insurance policy, an individual
can have more than one residence when one residence is a vacation home; and
(4) the trial court erred by not considering whether a reasonable person in the
position of the insured would believe that a homeowner’s insurance policy
purchased to insure a vacation home would cover all family members who use
the home for vacation purposes. Matthews argues that the trial court applied
an incorrect legal standard, and that the Vermont Mutual policy is ambiguous.
Because Matthews’s arguments overlap with the petitioners’ arguments, we will
consider them together. In contrast, Vermont Mutual asserts that Matthews is
a resident of Massachusetts and did not qualify as a resident of his mother’s
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household, and, consequently, was not entitled to coverage under the policy
insuring the Moultonborough home. We agree with Vermont Mutual.
The Vermont Mutual policy at issue defines an “insured” to include
“residents of your household who are . . . your relatives,” but does not define
the term “resident.” However, we have considered the meaning of this term in
the insurance context on multiple occasions, and have defined “residence” as
“the place where an individual physically dwells, while regarding it as his
principal place of abode.” Belanger, 153 N.H. at 587 (quotation omitted). This
definition considers two factors that must occur simultaneously: “(1) the
person must physically dwell at the claimed residence; and (2) the person must
regard the claimed residence as his principal place of abode.” Id. Additionally,
the term “household” is understood to be a group of people dwelling as a family
under one head and under one roof. Metropolitan Prop. & Liabil. Ins. Co. v.
Martin, 132 N.H. 593, 596 (1989). “Whether or not individuals are members of
the same household is determined by the facts of each case.” Limoges v.
Horace Mann Ins. Co., 134 N.H. 474, 475 (1991). Likewise, although an
interpretation of insurance policy language is a question of law, a
“determination of residency is largely based upon the facts of each case.”
Belanger, 153 N.H. at 587.
In interpreting policy language, we look to the plain and ordinary
meaning of the policy’s words in context. We construe the terms of
the policy as would a reasonable person in the position of the
insured based upon more than a casual reading of the policy as a
whole. Policy terms are construed objectively, and where the terms
of a policy are clear and unambiguous, we accord the language its
natural and ordinary meaning. We need not examine the parties’
reasonable expectations of coverage when a policy is clear and
unambiguous; absent ambiguity, our search for the parties’ intent
is limited to the words of the policy.
Bates v. Phenix Mut. Fire Ins. Co., 156 N.H. 719, 722 (2008) (citations and
quotations omitted). “Ambiguity exists if reasonable disagreement between
contracting parties leads to at least two interpretations of the language.”
Colony Ins. Co. v. Dover Indoor Climbing Gym, 158 N.H. 628, 630 (2009)
(quotation omitted). As we have already defined the term “resident” on multiple
occasions in this context, however, there can be no disagreement as to its
meaning and, therefore, there is no ambiguity. Thus, absent policy language
containing a definition of the term “resident” that differs from our case law –
which is not present here – we rely upon our settled definition of the term.
Additionally, due to the lack of ambiguity, we need not examine whether a
reasonable person in the position of the insured would expect that a
homeowner’s insurance policy for a vacation home would cover all family
members who use it for vacation purposes. Consequently, our analysis is
limited to the words of the Vermont Mutual policy. See Bates, 156 N.H. at 722.
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The facts found by the trial court are similar to those in Holyoke Mutual
Insurance Co. v. Carr, 130 N.H. 698 (1988). In that case, we upheld the denial
of uninsured motorist coverage for an individual on the ground that he was not
a “resident” of the insured’s household. Id. at 698. The person for whom
coverage was sought was over eighteen years of age, had moved into an
apartment in Vermont, and obtained employment there. Id. at 699. Under
these circumstances, we held that the individual was not a resident of his
father’s home for purposes of insurance coverage, even though he used his
father’s address on his driver’s license, often visited his father’s home, and still
received mail there. Id. at 700; see also Connolly v. Galvin, 120 N.H. 219, 220-
21 (1980) (holding that defendant was not resident of his mother’s household,
even though his driver’s license listed his mother’s address and he received
mail there, because he expressed a belief that his residence was in a different
location than his mother’s home, he rented and occupied his own residence,
and he testified that he was only living with his mother after expiration of his
lease until he could find another place to live).
In Limoges, the plaintiff seeking coverage had a room at the home of his
insured father where he kept clothing and personal belongings and where he
also received mail and telephone calls. Limoges, 134 N.H. at 476. The plaintiff
had a close relationship with his father, who provided him with financial
support. Id. The policy at issue contained no requirement that a family
member must permanently dwell in the home to be considered a resident
relative. Id. Under those facts, we were not persuaded by the insurance
company’s argument that the plaintiff did not permanently reside in his
father’s home and, therefore, was not a resident. Id. Limoges is
distinguishable from this case, however, because it involved a child of divorced
parents who was found to be a qualifying resident of the household of the non-
custodial parent for insurance coverage purposes. See id. at 475. In cases
dealing with a child of divorced parents, the child often resides principally with
one parent, but spends a significant amount of time with the other parent. As
one court stated,
Numerous other cases have found a child of divorced or separated
parents – even though living primarily under the roof of only one
parent – was a “resident” of both parents’ “households” for
purposes of insurance coverage. Courts note that children often
leave belongings at both homes, have a room or area of their “own”
in each home, and until the child expresses another intent,
generally hold that the child is a resident of both homes.
Farmers Mut. Ins. Co. v. Tucker, 576 S.E.2d 261, 267-68 (W.Va. 2002)
(footnote omitted).
Unlike the plaintiff in Limoges, Matthews independently owns and
spends most of his time in his own home in Massachusetts. He considers
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himself a resident of Massachusetts and refers to the Moultonborough property
as his mother’s home rather than his own. Although Matthews lived at the
Moultonborough property as a teenager and college student, his statements
and actions over the years following his college graduation express his intent to
disregard the Moultonborough property as his residence and emphasize his
decision to reside in Massachusetts. His connection to the Moultonborough
property, such as his use of the New Hampshire address for his driver’s license
and voter registration, began when he lived in the home prior to and during
college. As the trial court aptly observed, Matthews’s connections to his
mother’s home “continue due more to inertia than to any perception on his
part that the Moultonborough home is his abode.” As a result, even if
Matthews occupied the Moultonborough home at the time of the 2011 incident,
he did not regard that residence as his principal place of abode. Therefore, he
was not a “resident relative” of the Moultonborough home within the meaning
of the policy.
The petitioners rely upon Concord Group Insurance Cos. v. Sleeper, 135
N.H. 67 (1991), in arguing that the trial court erred by basing its ruling almost
solely upon Matthews’s subjective testimony that he considered Massachusetts
to be his “primary” residence, and not upon the objective facts tying him to
New Hampshire. In Sleeper, the sixteen-year-old child seeking insurance
coverage stated that he did not intend to return to the home of his insured
grandmother, with whom he had been living. Id. at 70. We stated that this
testimony “must be weighed against the complexities lent by his young age,
immaturity, court involvement, and strained family relationships at that time.”
Id. However, because Sleeper came to us as an appeal of the trial court’s grant
of summary judgment for the insurer, we had no occasion to determine
whether the child was, in fact, a resident of the insured’s household. Id. at 71.
We determined only that the record before the trial court left general issues of
fact in dispute as to whether the child was emancipated so as to be able to
determine residency on his own and therefore precluded the grant of summary
judgment for the insurer. Sleeper thus is readily distinguishable from this
case, and does not support the petitioners’ position.
Here, not only has Matthews testified that he does not consider the
Moultonborough home to be “his place,” but the objective facts indicate that he
is not a resident of that home. Unlike the sixteen-year-old child in Sleeper,
Matthews is an educated, independent adult, who for many years has had his
own residence in Massachusetts. He spends more than 80% of his time at that
residence and visits his mother’s Moultonborough home only on occasion.
Matthews notifies his mother before visiting and seeks her permission to bring
friends to the home. Moreover, Matthews listed his Massachusetts home as his
residence on his resume, he used his Massachusetts address on his tax
returns the last time he filed taxes, and his telephone has a Massachusetts
area code. As a result, although Matthews does have some residual ties to his
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mother’s Moultonborough home stemming from his time there before and
during college, the objective facts indicate that he is not a “resident relative” of
the Moultonborough property within the meaning of his mother’s homeowner’s
insurance policy.
Finally, the petitioners rely upon Damore v. Winnebago Park Ass’n, 876
F.2d 572 (7th Cir. 1989), in arguing that an individual can have more than one
residence when one of those residences is a vacation home. The case does not
support their argument, however. In Damore, an insurer sought to exclude
coverage in a college student’s action against his parents for injuries sustained
at their summer cottage. Id. at 573-74. The parents’ liability policy included
“relatives if residents of your household” as additional insureds, but also
contained an exclusion for injuries sustained by, among others, “any insured”
or “any relative of any insured who resides on the insured premises.” Id. at
572. Contrary to the petitioners’ assertion, the court did not hold that “the son
was a resident of both the family’s primary residence and the vacation cottage.”
To the contrary, the court specifically reasoned that neither the named
insureds (the parents) nor the son were residents of the cottage within the
meaning of the policy because the cottage did not constitute a separate
household from their primary residence. Id. at 573, 575.
The Winnebago cottage was a weekend retreat for the entire
Damore family. While it is true that [the son] did not “reside” on
the Winnebago premises, neither did his parents. Appellant’s
attorney has argued the existence of a fictitious household which,
applying appellant’s own “residency requirement,” would have no
members.
Id. at 575.
Even if we were to assume that the Moultonborough property is a
vacation home and that a person can have more than one residence for
insurance purposes when one of the residences is a vacation home, the policy
here, like that in Damore, requires that the additional insured be a resident
relative of “your [the named insured’s] household.” To satisfy this requirement
of sharing the same household, Matthews also would have to be a resident of
his mother’s primary residence in Florida. See id.; see also Still v. Fox, No. C-
940954, 1995 WL 596062, at *1 (Ohio Ct. App. Oct. 11, 1995) (holding that
adult child who maintained his own residence separate from his father’s
household, but regularly vacationed and kept gear at his father’s vacation
home, was not a resident of his father’s household, and therefore not an
insured under his father’s insurance policy covering the vacation home). As
noted previously, the petitioners do not claim that Matthews is a resident of his
mother’s Florida home.
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For the reasons stated above, we hold that the trial court did not err in
determining that Matthews is not a “resident relative” of the Moultonborough
property within the meaning of the Vermont Mutual policy.
Affirmed.
DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred.
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