United States Court of Appeals,
Fifth Circuit.
No. 95-40055
Summary Calendar.
Lillian CICCIARELLA; James F. Halloran; Vickey C. Halloran, M.D., Plaintiffs-Appellants,
v.
AMICA MUTUAL INSURANCE COMPANY, Defendant-Appellee.
Oct. 17, 1995.
Appeal from the United States District Court for the Southern District of Texas.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Lillian Cicciarella and others brought this suit in federal district court at
Houston, Texas, against Defendant-Appellee Amica Mutual Insurance Company (Amica), alleging,
inter alia, breach of contract for Amica's refusal to pay uninsured/underinsured motorist benefits.
Amica moved for partial summary judgment, arguing that, as a matter of law, Cicciarella was not a
"covered person" under the policy in question. The district court concluded that no genuine issues
of material fact existed and that, as a matter of law, Cicciarella was not a "covered person" under the
policy. On appeal, Cicciarella urges that genuine issues of material fact exist, making summary
judgment inappropriate. As we agree with Cicciarella, we reverse and remand.
I
FACTS AND PROCEEDINGS
A. The Dwellings
Doctor and Mr. Halloran own a single-family dwelling1 in Houston, Texas, in which they
spend a majority of their time each year (Houston Dwelling). The Hallorans also own a single-family
dwelling in Brooklyn, New York (Brooklyn Dwelling) in which Cicciarella, Dr. Halloran's mother,
1
We use the descriptive and non-legal term "dwelling" to avoid any confusion with the
contractual terms at issue in this case, such as "residence" and "household."
lives year-round. For the past 16 years, the Hallorans have spent a total of approximately 60 days
a year in the Brooklyn Dwelling. Thus, the Hallorans and Cicciarella spend about 60 days a year
under the same roof.
Both the Hallorans and Cicciarella have their own separate rooms in the Brooklyn Dwelling.
The Hallorans maintain year-round wardrobes at the Brooklyn Dwelling, pay all utility bills and repair
costs for the Brooklyn Dwelling, and support Cicciarella financially: She pays no rent and is, for
federal income tax purposes, a dependent of the Hallorans. When the Hallorans are not in Brooklyn,
Dr. Halloran speaks with Cicciarella by telephone one to three times each day.
B. The Accident
On September 1, 1991, Amica re-issued a policy of automobile insurance (Policy) to the
Hallorans. On April 11, 1992, the Hallorans traveled to Brooklyn to attend a medical seminar. On
the following day—while the Policy was still in full force and effect, with all premiums thereon paid
in full—the Hallorans and Cicciarella were injured in an automobile accident: The rental car in which
they were riding was st ruck by a vehicle driven by Karl Healy. The collision was the direct and
proximate result of Healy's negligence; however, he was underinsured. Cicciarella and the Hallorans
filed claims with Amica under the Policy's uninsured/underinsured motorist coverage, but Amica
withheld payment.
C. District Court Proceedings
Cicciarella and the Hallorans filed this suit, alleging causes of action for breach of contract,
breach of the duties of good faith and fair dealing, and violation of Article 21.21 of the Texas
Insurance Code. Cicciarella and the Hallorans sought to recover $100,000 in actual damages plus
exemplary damages and attorneys' fees.
Amica entered into a complete settlement with the Hallorans. Even though Cicciarella
stipulated and agreed to its terms, the Hallorans' settlement in no way affected her claims or causes
of action against Amica. Thereafter, Cicciarella and Amica both moved to sever the extra-contractual
claims for bad faith and vio lations of the Texas Insurance Code from the remaining
uninsured/underinsured motorist claim. The district court ordered such severance, leaving Cicciarella
and Amica as the only parties to the severed contractual damage claim under the Policy. Amica then
moved for partial summary judgment, seeking dismissal of Cicciarella's underinsured motorist claim
and alleging that, as a matter of law, Amica was entitled to judgment because the undisputed facts
established that Cicciarella was not a "resident of [the insureds'] household" and thus not a "covered
person" under the Policy. The district court agreed with Amica, holding that no genuine issue of fact
existed to preclude summary judgment because—as a matter of law—Cicciarella was not a resident
of the same household as the Hallorans, the named insureds. The district court granted partial
summary judgment in favor of Amica, dismissing Cicciarella's uninsured motorist claim. Cicciarella
timely filed a notice of appeal.2
D. The Issue on Appeal
As she did in district court, Cicciarella insists that genuine issues of material fact as to her
residential status vis-a-vis the Hallorans' "household" do exist, thereby precluding summary judgment.
Thus, the sole issue on appeal is whether Cicciarella is correct that there exist genuine issues of
material fact on the question whether she is a "resident of [the insureds'] household," as that phrase
is used in the Policy.
II
ANALYSIS
A. Standard of Review
We review a district court's award of summary judgment under the same standards that the
district court applied to determine whether summary judgment was appropriate.3 Summary judgment
is appropriate if the record discloses "that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."4 Therefore, the summary judgment
2
In light of Amica's settlement with the Hallorans on their contractual claim and the district
court's severance of the non-contractual claims from Cicciarella's contractual claim, the partial
summary judgment dismissing Cicciarella's breach of contract claim was a final judgment for
purposes of 28 U.S.C. § 1291, the jurisdictional basis for this appeal.
3
Herrera v. Millsap, 862 F.2d 1157, 1159 (5th Cir.1989).
4
Fed.R.Civ.P. 56(c).
will be affirmed only if we are "convinced, after an independent review of the record, that "there is
no genuine issue as to any material fact' and that "the movant is entitled to judgment as a matter of
law.' "5 We begin our review with the language of the Policy.
B. The Policy
The Policy provides in pertinent part:
[Amica] will pay damages to which a covered person is legally entitled to recover from the
owner or operator of an uninsured motor vehicle because of bodily injury sustained by a
covered person, or property damage caused by an accident.
The Policy defines the term, "covered person," as "[the insureds] or any family member." The Policy
then defines "family member" as a "person who is a resident of [the insureds'] household and related
to [the insured] by blood, marriage or adoption." The words "resident" and "household" are not
defined in the Policy; neither are those words modified by adjectives such as "principal," "primary,"
or the like.
None dispute that, for Cicciarella to recover under the Policy, she must prove that (1) she is
a relative of Dr. Halloran, and (2) she was a resident of the insureds' (the Hallorans) household at all
pertinent times. But merely to avoid summary judgment and "have her day in court," Cicciarella need
only raise a material issue of disputed fact with respect to either prong of the Policy's definition of
"family member." The first prong presents no problem, as no one contests that Cicciarella and Dr.
Halloran are related for purposes of the Policy. Thus the only point of contention is whether
Cicciarella was a "resident" of the Hallorans' "household." We examine, in turn, those two terms and
how they are used relative to each other in the phrase "resident of [the insureds'] household."
1. Contractual Construction
In Texas, insurance policies are controlled by the rules of construction that are applicable to
5
Herrera v. Millsap, 862 F.2d at 1159 (5th Cir.1989) (quoting Brooks, Tarlton, Gilbert,
Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987) and
Fed.R.Civ.P. 56(c)).
contracts generally.6 We will not rewrite the terms of the Policy; instead, we enforce it as written.7
Our primary concern is to give effect to the intentions of the parties as expressed in the instrument.8
Thus, in interpreting the Policy, we construe all parts of the document together, giving effect to the
intent of the parties.9 The determination whether terms are ambiguous is a question of law. 10 A
contract is ambiguous only "when its meaning is uncertain and doubtful or it is reasonably susceptible
of more than one meaning."11 Only if the court makes the determination that the contract cannot be
given a certain and definite legal meaning, and is therefore ambiguous, can a question of fact be
submitted to the jury as to the meaning of the contract.12 Once the document is found to be
ambiguous, the determination of the parties' intent through extrinsic evidence is a question of fact.13
We must interpret and construe insurance policies liberally in favor of the insured, especially when
dealing with exceptions and words of limitation.14
2. Apples and Oranges
We note preliminarily that some confusion results from the Po licy's definition of "family
member" in terms of a "person who is a resident of [the insureds'] household."15 The word "resident"
embodies the concept of place, connoting the physical or geographical location or locale where
individuals dwell or reside. On the other hand, the word "household" (as distinguished from "house,"
6
Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987).
7
Yancey v. Floyd West & Co., 755 S.W.2d 914, 918 (Tex.App.—Fort Worth 1988, writ
denied).
8
Ideal Lease Service, Inc. v. Amoco Prod. Co., 662 S.W.2d 951, 953 (Tex.1983).
9
Travelers Indem. Co. of Rhode Island v. Lucas, 678 S.W.2d 732, 734 (Tex.App.—Texarkana
1984, no writ).
10
Yancey, 755 S.W.2d at 917.
11
Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).
12
Id. at 393-94.
13
Yancey, 755 S.W.2d at 917.
14
Kelly Associates, Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex.1984).
15
(emphasis added)
"residence," "abode," and the like), is universally defined in terms of persons—an agglomeration of
individuals who dwell as a unit under one roof. Had the phrase in the Policy read "resident of [the
insureds'] house (or residence or abode )," the concepts of place and person would not have been
mixed; conversely, had the phrase in the Policy read "person who is a member of [the insureds']
household," thus consistently using terms that connote persons rather than mixing persons and places,
the point would have been equally clear. As it is, however, we are required to parse the phrase
actually used in the Policy and examine more closely the intent of the parties to that insurance
contract, which uses "resident" and "household" in the subject phrase, to see if both words as thus
used—and the phrase in which the words are used together—are susceptible of but one reasonable
meaning and thus are not ambiguous.
3. Household
As noted, the term "household" is not defined within the four corners of the Policy; neither
is household truly a legal term of art. Rather, it is a term of ordinary, conversational usage and
understanding. Random House defines "household" as "the people of the house collectively; a
family, including its servants."16 Webster defines "household" as "[t]hose who dwell under the same
roof and compose a family: a domestic establishment: a social unit comprised of [sic] those living
together in t he same dwelling place."17 And, even though Black's contains annotations within its
definition of "household," that definition essentially parrots Webster.18 Thus a "household" is not a
16
The Random House College Dictionary, (rev. ed. 1982).
17
Webster's Third New International Dictionary of the English Language, (unabridged 1986).
18
The following entry appears in Black's Law Dictionary for the term "household":
adj. Belonging to the house and family; domestic.
n. A family living together. Schurler v. Industrial Commission, 86 Utah 284, 43
P.2d 696, 699 (1935). Those who dwell under the same roof and compose a family.
Term "household" is generally synonymous with "family" for insurance purposes,
and includes those who dwell together as a family under the same roof. Van Overbeke v.
State Farm Mut. Auto. Ins. Co., 303 Minn. 387, 227 N.W.2d 807, 810 (1975). Generally,
the term "household" as used in automobile policies is synonymous with "home" and
"family." Bartholet v. Berkness, 291 Minn. 123, 189 N.W.2d 410, 412 (1971).
place—not a house or a building or a residence—but is group or set of individuals, i.e., natural
persons, who together dwell "under the same roof."
Significant to the instant inquiry is whether it can be said with certainty that, as used in the
Policy, "household" can mean any household or only the primary household, principal household,
permanent household, or household for the greatest or greater part of the year. As the Policy is
devoid of any adjective or phrase modifying "household," the answer to that question is not apparent
from the document. What is apparent, however, is that in the Policy, "household" is susceptible of
more than one interpretation—indeed, multiple interpretations. This is quintessential ambiguity and
thus a quintessential factual question for resolution by the jury.
4. Resident
In Texas, "[t]he controlling test of whether persons are residents of the same household at
a particular time, within the meaning of the policy in question, is not solely whether they are residing
together under one roof."19 Instead, "[t]he real test is whether the absence of the party of interest
from the household of the alleged insured is intended to be permanent or only temporary, i.e., whether
there is physical absence coupled with an intent not to return."20 Moreover, "a person may, and many
do, have more than one residence."21
Generally, in the cases that establish this test, the inquiry focuses on whether a child or spouse
who is not living under the same roof as the insured is, nonetheless, a "resident of the same
household" for purposes of the insurance policy.22 The test focuses on intent of the non-insured
Black's Law Dictionary 740 (6th ed. 1994).
19
Southern Farm Bureau Casualty Ins. Co. v. Kimball, 552 S.W.2d 207, 208
(Tex.App.—Waco 1977, writ ref'd n.r.e.).
20
Id.
21
Hartford Casualty Insurance Co. v. Phillips, 575 S.W.2d 62, 64 (Tex.App.—Texarkana
1978, n.w.h.).
22
See, e.g., Kimball, 552 S.W.2d at 209 (affirming jury finding that insured and his wife were
residents of the same household despite wife having moved into separate apartment and initiated
divorce proceedings); Phillips, 575 S.W.2d at 64 (affirming jury finding that son, 14 years of age,
was a "resident of the same household" as his mother, the named insured, even though son had
been living with his father pursuant to divorce agreement).
person for whom coverage is being sought: whether or not that individual intended his or her
departure from the residence of the insured to be permanent or only temporary. If the child or spouse
intends to return, the departure is only temporary and the child or spouse remains a "covered
person."23 If, on the other hand, the child or spouse has no intention to return, the departure is
permanent and the individual is not a "covered person."24
In the instant case, the broader question—whether the individual seeking coverage is a
resident of the insureds' household—remains; but the focus has shifted. For here we know where
the individual for whom coverage is sought resided: At all pertinent times, Cicciarella was a resident
of the Brooklyn dwelling only and never intended to leave. What we do not know is whether at those
times the insureds—the Hallorans—were "residents" of the Brooklyn dwelling.
If the Hallorans were residents of the Brooklyn dwelling, then Cicciarella was a "resident of
[the insureds'] household" and was a "covered person." On the other hand, if the Hallorans were not
residents of the Brooklyn dwelling but merely periodic visitors or sojourners, they could not have
been members of a household in that location. Thus Cicciarella could not have been a "resident of
[the insureds'] household" and could not have been a "covered person."
Additionally, as we have seen in the case with the word "household," the word "resident" is
not modified by adjective or phrase to give us insight into the question whether the parties intended,
for purposes of the Policy, that an insured could be a "resident" of more than one dwelling place and
thus a member of more than one "household." The term "resident" has different meanings in the legal
world, depending on the context and usage.25 Here, we are unable to discern from context and usage
23
See, e.g., National Emblem Insurance Co. v. McClendon, 481 S.W.2d 186, 189-90
(Tex.App.—Texarkana 1972, writ ref'd n.r.e.) (affirming jury finding that wife, who moved out of
husband's house and into her mother's twenty days before auto accident, had only temporarily left
her husband's home and thus remained a resident of the same household as her husband).
24
See, e.g., Boon v. Premier Insurance Co., 519 S.W.2d 703, 704 (Tex.App.—Texarkana
1975, n.w.h.) (affirming judge's finding that where the husband had moved from the marital home
some two months prior to the auto accident in which his wife was injured, and both parties
intended that the separation be permanent, the wife was not a "resident of the same household" as
the insured).
25
See, e.g. Sturgis v. Washington, 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464 (1973) (for
purpose of determining in-state "resident" tuition rates, resident is the same as "domicile");
the intended definition of the term "resident." As "resident" is susceptible of more than one sensible
meaning for purposes of the Policy, it too is ambiguous.
5. "Resident of [the insureds'] Household"
We have now determined that neither "resident" nor "household" is a legal term of art or a
term defined in the Policy and that both words are ambiguous under the circumstances of the instant
case. As both "resident" and "household" are ambiguous, it follows that the key phrase, "resident of
[the insureds'] household" is ambiguous and thus a question of fact.
Moreover, as the ultimate outcome of this litigation turns on the meaning ascribed to that key
phrase, the parties' intended meaning is material. Accordingly, the district court erred in not allowing
the jury to determine (1) the parties' intended meaning of "household," "resident," and "resident of
[the insureds'] household"; and (2) whether, under the facts and circumstances of this case, the
Hallorans—together with Cicciarella—constituted a "household," given that the Hallorans are present
in the Brooklyn Dwelling intermittently for a total of some 60 days per year, and that the Hallorans
apparently do constitute a "household" (of which Cicciarella clearly is not a member or "resident")
in the Houston Dwelling.
III
CONCLUSION
As we conclude that material questions of fact persist as to whether Dr. Halloran is a
"resident" of the Brooklyn Dwelling and, if so, whether the Hallorans and Cicciarella constitute a
"household" there, we reverse the district court's grant of summary judgment in favor of Amica and
remand Cicciarella's contractual claim for uninsured motorist coverage to the district court for further
proceedings consistent with this opinion.
REVERSED and REMANDED.
Weisenburg v. Telepromter Corp., 605 S.W.2d 737, 739 (Tex.Civ.App.—Dallas 1980, no writ)
(for the purpose of establishing venue in Texas, a second residence away from the domicile must
(1) be a fixed place of abode within the possession of the concerned individual; (2) which is
occupied or intended to be occupied consistently over a substantial period of time; and (3) which
is permanent rather than temporary).