Frost Ex Rel. Anderson v. Whitbeck

*102JON E WILCOX, J.

*103¶ 49. The majority holds that the word "relative" is ambiguous, concluding that it is "an indefinite, elastic, intrinsically imprecise word in the context of the exclusion . . .." Majority op., ¶ 7. I disagree. The majority states: "Words and phrases in an insurance policy are ambiguous when they are so imprecise and elastic as to lack any certain interpretation or are susceptible to more than one reasonable construction." Majority op., ¶ 18 (citations omitted). While I concede that there are circumstances where the inclusion of a person under the term "relative" might be unreasonable, this is not such a case. The term "relative" has a certain interpretation that should apply in this case.

¶ 50. When interpreting an insurance policy, we are to give the policy terms their plain and ordinary meaning in order to avoid imposing contract obligations upon the parties that they did not undertake. Danbeck v. Am. Family Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150 (internal citations omitted). We may discern the plain and ordinary meaning of an insurance policy term by "seek[ing] guidance from a recognized dictionary." Smith v. Katz, 218 Wis. 2d 442, 451 n.4, 578 N.W.2d 202 (1998). "Relative" is defined in the American Heritage Dictionary as, "One related by kinship, common origin, or marriage." American Heri*104tage Dictionary 1523 (3d ed. 1992). Similarly, "kinship" is defined as a "[c]onnection by blood, marriage, or adoption; family relationship" or a "[r]elationship by nature or character; affinity." Id. at 993. American Family asserts that this dictionary definition supports the argument that "relative" is unambiguous, because there is agreement that it means, at minimum, "connected by blood." The majority accepts this definition, but finds that the real issue is whether the definition extends to all blood relatives "no matter how distant or remote the connection." Majority op., ¶ 32.

¶ 51. I agree with the majority that blood relations cannot and should not be interpreted to trace back all the way to the beginning of the human race, but this case does not call for such an interpretation. Here, we have two people that are third cousins, related by blood, who know and acknowledge that they are related.1 When people are related by blood and recognize each other as a "cousin," they are, by definition, relatives.

¶ 52. Contrary to the majority, I do not believe that this court has to find that the term " 'relative' refers to all persons related by blood no matter how distant or remote the connection," majority op., ¶ 29, in order to find that Frost and Whitbeck are relatives under this policy. At some point, the blood connection becomes too tenuous for parties to even be aware they are related. At such a point, it is unreasonable to find a relative relationship. However, those circumstances do not exist in this case. Here, Frost and Whitbeck were blood related and they knew it. The existence of the blood connection under circumstances where those *105involved are aware of the connection and refer to each other as "cousins" is sufficient to make them relatives under the plain language of this insurance policy, particularly in light of the additional "resident" limitation on the exclusion.

¶ 53. The majority acknowledges that Tina Frost and Doreen Whitbeck are related by blood, repeatedly stating that they are third cousins separated by eight degrees of kinship. See majority op., ¶¶ 7, 8, 39. Whit-beck and Frost knew they shared a great-great-grandfather and that their great-grandfathers were brothers. Indeed, hospital records from Brittany's June 1996 emergency room visit indicate that Brittany was "living" with her "mother's cousin," having "recently moved . . . from Kentucky." They held out to the world that they were relatives. '

¶ 54. One Wisconsin case examined by the majority is In re Estate of Haese, 80 Wis. 2d 285, 259 N.W.2d 54 (1977).2 We held in Haese that the term "relative" was ambiguous in the context of the anti-lapse statute as it pertains to a non-blood relative. The majority asserts that Haese is rendered useless to our analysis because it did not hold that the word " 'relative' plainly and unambiguously includes any and all persons connected by blood." Majority op., ¶ 27. While we held that the statute required a narrow interpretation limited to blood relatives, we noted that "there is general agreement that a relative is one connected by blood or affinity." Haese, 80 Wis. 2d at 291. Further, we found *106that although the term was ambiguous in the context of the case, the term in other cases was unambiguous and "susceptible to interpretation by common and ordinary meaning." Id. at 296.

¶ 55. The majority also suggests that the cases from other jurisdictions are of little or no use in the present case because, among the cases that hold "relative" to be unambiguous, one held that "relative" clearly did not include domestic partners, and the others dealt with affinity relationships. Majority op., ¶¶ 29-30.

¶ 56. The majority is correct that none of these cases involve a blood relationship like the one in this case. I disagree, however, that these cases are of no use to our analysis. These cases show that the word relative can be construed broadly and, under the common definition, extend unambiguously to a variety of non-blood relatives. In Liprie, for example, a Louisiana court found that the "usual, customary and generally accepted interpretation of the word 'relative'" included those related by blood or affinity, and a daughter-in-law of an insured was an insured under the relevant policy. Liprie v. Mich. Millers Mut. Ins. Co., 143 So.2d 597, 600-01 (La. Ct. App. 1962).

¶ 57. In Mickelson, the Supreme Court of Minnesota found that the word "relative" was a "term[] of common usage and generally accepted meaning" and means "one connected by blood or marriage." Mickelson v. Am. Family Mut. Ins. Co., 329 N.W.2d 814, 816 (Minn. 1983). That court concluded a domestic partner was not a relative under the policy because there was no relationship by blood or marriage. Id.

¶ 58. A common thread binds all the cases cited by the majority.3 Even where a court has found the term *107ambiguous within the context of a case, the court has acknowledged that the definition of a "relative" includes those related by blood. The majority fails to cite a single case in which a court has found that a person related by blood to another is not a relative.4 That portion of the definition of "relative" is clear and unambiguous.

¶ 59. There may be a case where, as in the Haese case, this court must find ambiguity, but this is not such a case. The definition of the term "relative" as used in this policy includes at least those who are related by blood and consider themselves to be relatives. Any ambiguity with the term "relative" would arise when people do not know they are related by blood or where there is a non-blood relationship, not under facts such as those presented by this case.

¶ 60. In Maca, this court called "resident" an "elastic" term. See Nat'l Farmers Union Prop. & Cas. Co. v. Maca, 26 Wis. 2d 399, 407-08, 132 N.W.2d 517 (1965). In another case, though, this court found that "resident" was unambiguous as used in automobile liability insurance policies and should be "construed in light of [its] plain and common meaning." Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis. 2d 27, 37, 197 N.W.2d 783 (1972). I am of the opinion that the term "relative" should be interpreted in the same manner.

¶ 61. I now turn to the issue of whether a reasonable person in the position of the policyholder would understand a third cousin to be included by use of the term "relative" in a homeowner's insurance policy. The majority holds that a reasonable person would not have such an understanding. I disagree. Frost and Whitbeck were more than just good friends. They were blood *108relatives and they recognized that fact. As such, it would be reasonable for Whitbeck to consider Tina and Brittany in dealing with insurance issues. The majority finds that a reasonable person would only consider close kin under the policy exclusion. I see no reason why a person would only consider a "close" relative to be included in the exclusion. Also, I find the additional "resident" requirement makes this a narrow exception, one that applies only to relatives with whom the policyholder feels close enough to share a home. If blood relatives are close enough to share a home, they are close enough to consider the implications of that arrangement for insurance purposes.

¶ 62. While few may be in the situation to have a close relationship with a third cousin, Frost and Whit-beck were. It may be more common for a person to have a son or daughter, parent or sibling living in one's home, but a reasonable person would recognize that use of the term "relative" is broader and expands beyond those categories of people in absence of specific limiting language. The very use of the term "relative" in the policy defies a narrow understanding. The majority finds that excluding third cousins does not defeat the purpose of the exclusion. Again I disagree. By finding that acknowledged cousins do not fit the policy exclusion, the majority draws an arbitrary line regarding who might and who might not collude in the face of a definition that unambiguously includes blood relatives.

¶ 63. The purpose of this policy exclusion is to prevent collusion; it is designed to "exempt an insurance company from liability to those persons to whom a policyholder, on account of close family ties, would be likely to show partiality in case of injury." Majority op., ¶ 45 (citing Shannon v. Shannon, 150 Wis. 2d 434, 456, 442 N.W.2d 25 (1989)). Given that Frost and Whitbeck *109were "good friends" and third cousins by blood, there is no reason to believe the risk of collusion here is less than with other family situations. This court has noted that the probability of collusion in a particular case need not be high for exclusion language to apply. See Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 151, 539 N.W.2d 883 (1995) (finding that although the possibility of collusion in the case seemed "quite low, if not nil" the policy still applied). Although Frost and Whitbeck are separated by eight degrees of kinship, they are connected by blood. If Whitbeck felt close enough to Frost to allow her to be a resident of her home, there is no reason why Whitbeck would not consider her third cousin like other relatives in dealing with insurance issues.

¶ 64. In Fidelity and Casualty Co. of New York v. Jackson, 297 F.2d 230, 232 (4th Cir. 1961), one of the parties argued that interpreting "relative" to include those related to an insured by marriage would so "enlarge the exemption as to include car owners only barely and remotely touching the insured through affinity." The majority suggests a similar problem arises here. See majority op., ¶ 38. However, the Fourth Circuit found that "the latitude of the stipulation is severely straitened by the further requirement that the 'relative' be a 'resident of the same household' as the insured." Jackson, 297 F.2d at 232. As I have suggested, the category of people that will be both relatives and residents is very narrow. If, as I assert occurred here, third cousins choose to reside together, knowing that they are related, there is no reason why that relationship should not be considered for insurance purposes.

¶ 65. In Vernatter v. Allstate Insurance Co., 362 F.2d 403 (4th Cir. 1966), the court found that although an uncle-in-law is not as closely related as the mother-*110in-law in Jackson, for purposes of automobile liability insurance, the degree of relationship did not matter. The purpose was to exclude all relatives by blood or marriage, "whose car would be readily available to the insured by reason of their common residence and their familial relationship." Id. at 406. The same reasoning applies to the homeowner's insurance policy exclusion, where the purpose of the exclusion is to avoid liability where collusion is likely. Frost argues that close friends create the same risks; however, the argument that the exclusion could be broader does not require that the policy limits, as written, should not apply.

¶ 66. Since I would hold that Frost and Whitbeck are relatives, I turn to the "resident" portion of the resident-relative policy exclusion. I would find that the Frosts were residents of Whitbeck's household. Since the majority decided only the relative issue, some additional facts are necessary.

¶ 67. When Tina divorced, she was given sole custody of her six-year-old daughter Brittany. In May 1996 Tina and Brittany Frost came to stay at Doreen Whitbeck's home in Mt. Horeb, Wisconsin. Tina rented a trailer for the trip. In addition to clothes, toys, and Brittany's bike, Tina brought several large items with her, including a bed, a clothes dryer, and a television.

¶ 68. Shortly after moving into Whitbeck's home, Tina obtained full-time employment as a nursing assistant at Ingleside Nursing Home. In July 1996 Tina turned in her Kentucky license and obtained a Wisconsin driver's license. She also sold her truck and leased a car that she registered in Wisconsin. Tina received mail at the Whitbeck residence. She used the Mt. Horeb address for her driver's license, car insurance, employment application, and various medical records. Before moving from Kentucky, Tina closed out her savings *111account in Kentucky. She opened a bank account and used her Wisconsin address for her checkbook. Tina paid Wisconsin taxes in 1996.

¶ 69. Whitbeck paid all of the rent while the Frosts stayed with her, but Tina paid other bills, including water and utilities. Tina and Brittany had full use of the home and no limitations were placed upon the length of their stay.

¶ 70. Tina usually worked from 11:00 p.m. until 7:00 a.m. Whitbeck worked from 8:00 a.m. until 5:00 p.m. Brittany stayed at home with Whitbeck while her mother was at work. No babysitters were used. Tina and Brittany did not often eat with Whitbeck; rather, they typically ate fast food.

¶ 71. Tina kept in contact with Brittany's father and other family members in Kentucky. She told them she wanted to return and would return when she had the money. She also told Whitbeck that she wanted to return to Kentucky.

¶ 72. After the first dog bite, Brittany went to stay with her father in Kentucky for approximately one month. She returned to Mt. Horeb in time to begin school in August. After the second dog bite in November, Brittany returned to Kentucky permanently. Tina moved back to Kentucky in December 1996.

¶ 73. Under Pamperin, 55 Wis. 2d at 33-34, 36-37, this court has held that three factors should be considered in determining if one is a resident of a household: 1) whether the individuals were living under the same roof; 2) in a close, intimate and informal relationship and not at arm's length; and 3) where the intended duration is substantial, consistent with the informality of the relationship, and " 'long enough so that it is reasonable to expect the parties to take the relationship into consideration in contracting about *112such matters as insurance or in their conduct in reliance thereon.'" Id. at 34. The court in Pamperin went on to note that the intended duration of the stay need not have the permanency of a legal domicile, but the stay must be more than a "mere temporary sojourn." Id. at 35. No one factor is controlling; rather, "all of the elements must combine to a greater or lesser degree in order to establish the relationship." Id. at 37.

¶ 74. Tina argues that there are material issues of fact that remain regarding whether she or Brittany were residents of Whitbeck's household, thereby making summary judgment inappropriate. However, I agree with the circuit court's finding that the only dispute relates to the location where Tina and Brittany slept in the household, and that this issue is immaterial to the resident question. Determining residency is, by its nature, a fact specific analysis. See Ross v. Martini, 204 Wis. 2d 354, 358, 555 N.W.2d 381 (Ct. App. 1996). However, Wisconsin courts have held that residency can be determined as a matter of law. See Pamperin, 55 Wis. 2d at 38-39; Maca, 26 Wis. 2d at 408; Ross, 204 Wis. 2d at 360; A.G. v. Travelers Ins. Co., 112 Wis. 2d 18, 24-25, 331 N.W.2d 643 (Ct. App. 1983).

¶ 75. In Pamperin, this court reversed a circuit court ruling, finding that a directed verdict was appropriate on the issue of residency. 55 Wis. 2d at 39. There, a niece of the insured was involved in an accident. Id. at 32, 37. This court held that she was not a resident of her uncle's home, because she kept only a few clothes there and transferred none of her possessions, she did not reside continuously at the home, and early termination of the arrangement was likely. Id. at 37-38.

¶ 76. In Maca, on the other hand, this court held that an adult son was a resident of his parents' home. Maca, 26 Wis. 2d at 406-08. In that case, the son *113brought his possessions to his parents' home, lived only-on their farm for five months, did not pay rent but was paid for work done on the farm, used the family car, and sometimes ate at the home. Even though both he and his father considered the stay temporary, and hé actively sought work that would require him to move, this court found that he was a resident. Id. at 408.

¶ 77. The undisputed facts in the present case support a finding that both Brittany and Tina were residents of Whitbeck's household, Although Brittany stayed with her father during the summer, both Tina and Brittany stayed at Whitbeck's home for a substantial period of time. Courts have held that people might be residents of more than one household at a time. See, e.g., Ross, 204 Wis. 2d at 360. Also, in Ross, the court of appeals noted: "Generally, residency and custody are inexorably linked." Id. at 359. Tina had sole custody of Brittany. Brittany may have been a resident of both her father's and Whitbeck's households, but she was at least a resident of Whitbeck's. Brittany lived there for several months with her mother and attended school in Mt. Horeb. She stayed at the home with Whitbeck while her mother was at work. Her clothes, toys, and bike came along to Wisconsin.

¶ 78. Tina lived in Whitbeck's household continuously from May to December. She obtained full-time employment, received mail at the Mt. Horeb residence, and did her banking in Wisconsin. She obtained a Wisconsin driver's license and leased a car in Wisconsin. Tina brought large items such as a television, a bed, and a clothes dryer with her to Whitbeck's residence. Whit-beck paid all the rent, while Tina paid some of the other bills. Although Brittany and Whitbeck apparently did not get along, Whitbeck watched the six year old while Tina was at work. Whether they ate together is of little *114consequence, considering Whitbeck worked a schedule opposite to Tina's. This was clearly not an arm's length arrangement, and the stay involved more than a "mere temporary sojourn."

¶ 79. Although Brittany and Tina may have desired to return to Kentucky, their intent is not wholly determinative of this matter. In Maca, both father and son considered the arrangement temporary and the son sought to leave, but this court nonetheless found that the son. was a resident. 26 Wis. 2d at 407-08. In Ross, the court of appeals found, citing Pamperin, that a child's intent regarding residency is a factor to consider, but is not controlling. See Ross, 204 Wis. 2d at 358-59. There, the child ran away from his father's home to live with his mother and gained an injunction preventing his father from having contact with him for a year. Id. at 357. The child said he intended to live with his mother permanently, although his father had custody of him. Id. at 356-57. Despite these facts, the court of appeals held: "Because [the child] could not choose his residence, his intention as to where he would live is given little weight." Id. at 359. Under the present facts, I would find that both Brittany and Tina Frost were clearly residents of Whitbeck's household when the alleged dog bites occurred.

¶ 80. Because I conclude that Tina Frost is a relative of Whitbeck under this policy and that both Tina and Brittany were residents of Whitbeck's household, I would reverse the decision of the court of appeals and grant summary judgment in favor of American Family.

¶ 81. I am authorized to state that Justices N. PATRICK CROOKS and DIANE S. SYKES join this opinion.

Frost has argued that there is no competent evidence to support a finding of relative status. However, I find that the hospital records and testimony by Whitbeck and Frost are sufficient and admissible evidence of the relationship.

The other Wisconsin case cited by the majority is Peabody v. Am. Family Mut. Ins. Co., 220 Wis. 2d 340, 582 N.W.2d 753 (Ct. App. 1998). The majority asserts, and I agree, that the case is inapposite because the policy in the case specifically excluded those persons who owned their own vehicle. See majority op., ¶ 28.

For a full list of these cases, see majority op. ¶ 29, n.29.

Again, the majority notes Peabody, 220 Wis. 2d 340, but finds the case inapposite.