Chance v. State Auto Insurance Companies

ROBERTSON, Judge,

dissenting.

I respectfully dissent. The undisputed evidence leads unerringly to the conclusion that Shane remained a resident of his mother’s and stepfather’s “household” despite the fact he moved in with his brother in order to attend school in Marion.

As noted in Sutton v. Littlepage, 669 N.E.2d 1019 (Ind.Ct.App.1996):

The interpretation of an insurance policy is primarily a question of law for the court, and it is. therefore a question which is particularly suited for disposition by summary judgment Where there is an ambiguity, policies are to be construed strictly against the insurer. This is particularly true where a policy excludes or limits coverage. Strict construction means that the insurer is bound by the plain and ordinary meaning of the .words viewed from the standpoint of the insured. Strict construction against the insurer is ‘driven by the fact that the insurer drafts the policy and foists its terms upon the customer.’ ‘The . insurance companies write the policies; we buy their forms or we do not buy insurance.’

Id. at 1021 (Citations omitted). In construing terms in .an insurance policy, we apply-*572the rule of construction which favors coverage of the insured. Allstate Insurance Company v. Neumann, 435 N.E.2d 591, 593 (Ind.Ct.App.1982). Thus, a term is to be given its broad meaning in so-called “extension” cases, and is construed narrowly in “exclusion” cases. Id. Accordingly, under appropriate circumstances, a person may have more than one residence for the purpose of qualifying as an “insured” under an insurance policy. Id.

The majority has neglected to cite Erie Insurance Exchange v. Stephenson, 674 N.E.2d 607 (Ind.Ct.App.1996), in which we noted that the term:

‘Household is not a word of art. Its meaning is not confined within certain commonly known and universally accepted limits. True, it is frequently used to designate persons related by marriage or blood, who dwell together as a family under a single roof. But it has been said also that members of a family need not in all cases reside under a common roof in order to be deemed a part of the household.’

Id. at 610 (Quoting Mazzilli v. Accident & Casualty Insurance Co. of Winterthur, Switzerland, 35 N.J. 1, 170 A.2d 800, 804 (1961)). The Mazzilli decision relied on in Erie went on to note:

We have discovered no eases directly in point with the present one. It does appear, however, from cases wherein the courts were required to appraise the outer limits of ‘household,’ that when some benefit would accrue' to a member of the family by a broad construction, such view was adopted. This seems to have been particularly true where the right to the benefit was being contested on the ground that the claimant did not live under the same roof and therefore was not a member or resident or part of the household.
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... the term ‘household’ or ‘resident of the household’ cannot be so limited and strait-jacketed as always to mean, regardless of facts and circumstances, a collective body of persons who live in one house.... ■ Under all the circumstances, it is not unreasonable to conclude that both dwellings constituted “the” household and that parents and son were residents of it within the contemplation of the insurance policy. As has been said, there is no absolute requirement in the law that members, or residents of the household must live under a common roof. If the insurer wished to impose such a restriction it would have been a simple matter to do so by express language. Failure to be explicit in that regard makes it the duty of the court to adopt the construction which favors extension of coverage.

170 A.2d at 804-08 (Citations omitted). In Erie, 674 N.E.2d 607, we joined the overwhelming majority of jurisdictions which have interpreted the term “household” in insurance contracts broadly. See David B. Harrison, Annotation, Who is “Resident” or “Member" of same “Household” or “Family” as Named Insured, Within Liability Insurance Provision Defining Additional Insureds, 93 A.L.R.3d 420 (1979). The cases have unanimously held that a child living apart from his parents remains a member of their household while he is attending an educational institution. Id. at § 8, p. 446. See Aetna Casualty & Surety Co. v. DeBruicker, 838 F.Supp. 215 (E.D.Pa.1993), affirmed, 30 F.3d 1484; State Farm Mutual Automobile Insurance Co. v. Hasemeier, 534 So.2d 833, 13 FLW 2628 (1988); Lewis v. Dairyland Insurance Co., 169 Ga.App. 265, 312 S.E.2d 165 (1983); Federated American Insurance Co. v. Childers, 45 Or.App. 379, 608 P.2d 584 (1980); Crossett v. St. Louis Fire & Marine Insurance Co., 289 Ala. 598, 269 So.2d 869 (1972); Montgomery v. Hawkeye Security Insurance Co., 52 Mich.App. 457, 217 N.W.2d 449 (1974); Aetna Casualty & Surety Co. v. Means, 382 F.2d 26 (10th Cir. (Okla.) 1967); American States Insurance Company v. Walker, 26 Utah 2d 161, 486 P.2d 1042 (1971).

In the present ease, Shane moved out of his mother’s and stepfather’s house and into his brother’s house in order to attend school in Marion. The Third Party Custodial Statement and Agreement was executed in order that Shane could attend school without paying tuition. The undisputed evidence shows that Shane was Chance’s natural, unemanci-pated, minor son, and that Chance was his legal custodian with respect to all matters other than those having to do with the arrangement to facilitate Shane’s attendance of *573school in Marion. Shane resided with his mother and stepfather almost every weekend and kept most of his personal belongings at their home. Chance paid for Shane’s food, books, and school supplies. The Chances claimed Shane as a dependent on their income tax statement.

The State Auto policy in question did not define the term “household.” Accordingly, the term must be strictly construed against State Auto. See Erie, 674 N.E.2d at 610. Had State Auto wanted to invoke a more narrow definition of the term “household,” it could have done so in its policy. See id.

The undisputed evidence reveals that Shane was living apart from his mother and stepfather in order to attend school. Therefore, I must conclude that Shane remained a resident of his mother’s and stepfather’s household as a matter of law and, as such, was insured under the policy in question. Accordingly, summary judgment in favor of State Auto should be reversed and summary judgment should instead be entered in favor of Chance. See Motorists Mutual Insurance Co. v. Morris, 654 N.E.2d 861, 862 (Ind.Ct.App.1995) (The appellate court may determine as a matter of law that summary judgment was entered for the wrong party).