Goodsell v. State Automobile & Casualty Underwriters

Mason, J.

I dissent. Defendant’s appeal presents the issue whether Sandra Fae Goodsell was an insured under an automobile insurance policy issued by defendant to her father.

The policy defines insured as including the named insured and any resident of the same household. The majority holds there is substantial evidence in the record justifying the trial court’s conclusion that Sandra was a resident of her father’s household within the terms of the policy at the time in question. I disagree.

The question of who are members of the same household in cases involving insurance coverage has been before the Wisconsin court on at least four occasions that I find.

In Raymond v. Century Indemnity Co., 264 Wis. 429, 431, 59 N.W.2d 459, 460, the provision for interpretation was “with the permission of an adult member of such assured’s household.” The issue was whether the person operating an automobile insured by defendant company at time of accident was driving it “with the permission of an adult member of such assured’s household.” The policy had been issued to a Mrs. Hasseler whose 22-year-old son was in the armed forces stationed at Camp McCoy. It was he who had granted permission to drive the insured vehicle to the person operating it at the time of the accident. The son had lived with his mother at Green Bay prior to entering the army. The court held the son’s absence in the army did not destroy his status as an adult member of his mother’s household.

The trial court was reversed for excluding facts bearing upon the son’s right under the policy of the named insured to permit the driver to use the ear and having that right relate back to his mother. •

*143In Lontkowski v. Ignarski, 6 Wis.2d 561, 564, 565, 95 N.W.2d 230, 232, the policy before the court excluded coverage with respect to any car “furnished for regular use to the named insured or a member of his household.”

The court said:

“ ‘Household’ is defined by Webster as ‘those who dwell under the same roof and constitute a family.’ That definition corresponds with the common and approved usage of the term and is supported by judicial authority. ‘Persons who dwell together as a family constitute a household.’ Arthur v. Morgan, 1884, 112 U.S. 495, 499, 5 S. Ct. 241, 243, 28 L. Ed. 825.”

The trial court’s finding that the driver of the insured vehicle was a member of the owner’s household was affirmed.

The third case, National Farmers Union Property & Cas. Co. v. Maca, 26 Wis.2d 399, 403, 407, 132 N.W.2d 517, 519, 521, 522, involved a liability policy covering farm accidents subject to the exclusion that coverage was not extended to bodily injury to the named insured and his spouse and “the relatives of either * * * if such i:= * * relative is a resident of the household of the insured * * The policyholder’s 32-year-old son was injured while operating a com picker on his father’s farm approximately five months after he came to live with his parents. He had accepted a job which he could have retained on a permanent basis, but claimed he was only living with his parents until he could find a better job.

Plaintiff insurance company claimed the son was a resident of the father’s household, and, being his son, would therefore have the protection of being an insured under the policy but that any liability to him for bodily injury was excluded. The son contended he was not “resident,” because he did not intend to remain permanently, arguing that the word “resident” must be construed with the connotation of “domicile,” and cannot apply to one who does not have the present intention to remain. The court said: “We have so construed the word ‘resident’ where used in certain statutes. The word, however, ‘is an elastic term which may refer to a temporary sojourner as well as to one possessing a legal domicile.’ ”

In affirming the trial court’s granting of a summary judg*144ment on the basis that the son was a member of the father’s household as a matter of law within the wording of the policy, the court said:

“We think that one is not a resident of the household or member of the family if, even though he has no other place of abode, he comes under the family roof for a definite short period or for an indefinite period under such circumstances that an early termination is highly probable. If, however, the circumstances of his stay are otherwise consistent with a family or household relationship, and his stay is likely to be of substantial duration, the fact that he attempts to find employment, gaining which he would live elsewhere, would not, in our opinion, prevent his being a resident of the household or a member of the family.”

The remaining case referred to, Doern v. Crawford, 30 Wis.2d 206, 140 N.W.2d 193, 196, involved a policy issued to a Mr. Paulson which extended coverage to non-owned automobiles when operated by the named insured or a relative residing in the same household. Paulson’s wife was also a “named insured” under the policy definitions. For some time before the accident Paulson, his wife and her son by a prior marriage resided together in the same home. Six days before the accident Paulson instituted divorce proceedings and removed from the home. At the time of the accident the stepson was driving a “loaner” automobile.

The insurance company denied coverage and moved for summary judgment dismissing the complaint as to it. Its appeal from the court’s' order denying the motion presents the question whether Paulson, the policyholder, on the date of the accident was residing in the same household with his wife and stepson.

In affirming the action of the trial court in denying the insurance company’s motion for summary judgment the court said, after referring to the above cases:

“The holdings of these three cases demonstrate that the controlling test of whether persons are members of a household at a particular time is not solely whether they are then residing together under one roof. Living together under one roof *145is a factor to be considered and must have occurred at some time. When not occurring at the time in question, the absence from the family roof must be of a temporary nature with intent on the part of the absent person to return thereto. There is a close analogy between the concepts of household and domicile because intent of the person involved plays such a significant part. The one material difference between the two is that a domicile once acquired is not lost when a person leaves it, even though intending never to return, until he establishes a domicile elsewhere. We determine that this is not true with respect to a household, and, therefore, physical absence coupled with intent not to return is sufficient to sever the absent person’s membership in the household. Every person has a domicile but not every person is a member of a household.
“Whether the absence from the household is of long or short duration is immaterial except as it may give rise to an inference of intent to remain away permanently or only temporarily * # (Emphasis supplied.)

This controlling test is repeated with approval in Giese v. Karstedt, 30 Wis.2d 630, 141 N.W.2d 886, 889.

From the foregoing pronouncements, it logically follows that the question is not whether Sandra intended to establish a domicile in Detroit, rather whether it was her intent to return to Denver after she left for training in Detroit.

I think this is where the trial court erred in its conclusions of law.

The trial court determined Sandra was a resident of her father’s household based upon his fact finding that “Sandra Fae Goodsell did not have at the specific time that she went to Detroit, Michigan, an intention to .reside there permanently and with no present intention of moving bach to Denver, Iowa, or to any other place * * (Emphasis supplied.)

The trial court seemed to be under the impression that his finding that “she was there only on a probationary basis and on a training basis and would be transferred somewhere in North America that Northwest Airlines decided upon in the event her training was successful * * * ” vitiates any idea that Sandra intended to reside permanently in Detroit. It does negate the idea that Detroit may have been her domicile at the *146time of the accident, however, it does not negate, rather tends to substantiate plaintiff’s failure to meet the crucial standard, i.e.,' she would not be coming back to Denver.

I fail to find substantial evidence that would support a finding that Sandra intended to return to Denver. In fact, I believe the record establishes that she was going to take up a permanent residence elsewhere but did not know where. It depended upon whether the company was satisfied with her work and where, if anyplace, it wished to send her.

I would reverse.

Garfield, C. J., joins in this dissent.