Opinion
No. COA03-1534
Filed 19 October 2004 This case not for publication
Appeal by defendant from order entered 25 August 2003 by Judge John R. Jolly, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 13 September 2004.
Walker, Clark, Allen, Grice Ammons, L.L.P., by Jeffrey T. Ammons and Gay P. Stanley, for plaintiff-appellee. Kelly West Attorneys, by J. David Lewis, for defendant-appellant.
Johnston County, No. 02 CVS 506.
Plaintiff brought this declaratory judgment action seeking a determination that it did not provide coverage, under the terms of the underinsured motorist provision of a policy issued to Delta Lockwood, to defendant for injuries sustained in a motor vehicle collision which occurred on 5 November 2000. After defendant filed answer and the parties engaged in discovery, both parties moved for summary judgment. The trial court allowed plaintiff's motion for summary judgment, denied defendant's motion, and entered judgment in favor of plaintiff. Defendant appeals. The materials in evidence before the trial court at the summary judgment hearing tend to show that on 5 November 2000, defendant was injured when his motorcycle collided with a vehicle owned by Sharon Payton and operated by Andra Moore. Plaintiff also insured the Payton vehicle and tendered its policy limits of $30,000 to defendant. Plaintiff also provided coverage to defendant's mother, Delta Lockwood, under a policy of insurance providing, inter alia, underinsured motorist coverage in the amount of $50,000. The policy contained the following definition: " Insured as used in this Part means: 1. You or any family member. " (Emphasis in original). The policy defines family member as "a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child." Defendant made a claim against his mother's underinsured coverage and plaintiff denied the claim, contending that defendant did not meet the definition of an "insured" under the policy.
The evidence tended to show that at the time of the accident, defendant worked as a facility manager at the Oasis Rest Home in Benson, North Carolina. Part of defendant's compensation was housing (including utilities) at the facility. Defendant, his wife and children lived in three rooms of a four bedroom unit at the Oasis; his mother occupied the fourth room. Defendant had a phone listed in his name at this address and also paid for satellite television service.
In addition to the Benson address, defendant maintained an address in Mount Olive, which was given as his address for voterregistration purposes, his state and federal income tax returns, his vehicle titles, and was the address where he received his bills and most other mail. Defendant spent weekends at this address while his mother managed the Oasis. When defendant was present at the Oasis, his mother assisted her eldest daughter with her new baby, at times staying with her overnight.
"[S]ummary judgment would be appropriate only where, on undisputed aspects of the . . . evidentiary forecast, there were no genuine issues of fact and plaintiff was entitled to judgment as a matter of law." Great American Ins. Co. v. Allstate Ins. Co., 78 N.C. App. 653, 657, 338 S.E.2d 145, 147-48 (1986), disc. review denied, 316 N.C. 552, 344 S.E.2d 7 (1986). Defendant contends the foregoing evidence created a genuine issue of fact as to whether he was a resident of Delta Lockwood's household so as to be entitled to coverage under her policy. We agree.
"When an insurance policy fails to define a nontechnical term, the term is given its ordinary meaning". United Services Automobile Assn. v. Gambino, 114 N.C. App. 701, 705, 443 S.E.2d 368, 371 (1994), disc. review denied, 337 N.C. 698, 448 S.E.2d 539-40 (1994). This meaning "is a question of law for this Court, as is the construction and application of the policy's provisions to the undisputed facts" and is reviewed de novo. Bruton v. N.C. Farm Bureau Mut. Ins. Co., 127 N.C. App. 496, 498, 490 S.E.2d 600, 601-02 (1997), disc. review denied, 347 N.C. 573, 498 S.E.2d 379 (1998). Because the insurance policy at issue does not define `resident' we use its ordinary meaning. State Auto Prop. Cas. Ins. Co. v. Southard, 144 N.C. App. 438, 440, 548 S.E.2d 546, 548 (2001), disc. review denied, 548 S.E.2d at 548, 354 N.C. 370, 557 S.E.2d 535-36 (2001); see also Monin v. Peerless Ins. Co., 159 N.C. App. 334, 341-42, 583 S.E.2d 393, 398 (2003) (collecting cases defining resident). `Resident' is defined as "[o]ne who makes his home in a particular place." American Heritage Dictionary 1051 (2d ed. 1985). The word `resident' is "flexible, elastic, slippery and somewhat ambiguous," meaning anything from "a place of abode for more than a temporary period of time" to "a permanent and established home." Great American Ins. Co. v. Allstate Ins. Co., 78 N.C. App. 653, 656, 338 S.E.2d 145, 147, disc. review denied, 316 N.C. 552, 344 S.E.2d 7 (1986) (internal citations omitted).
In Southard, we upheld the grant of summary judgment on the definition of residence where the depositions and affidavits revealed that the family member seeking coverage slept wherever he happened to be at bedtime, carrying his clothing and toiletries with him and never staying more than three nights in a row at the insured's home, where he had neither a bedroom of his own nor a key. State Auto Prop. Cas. Ins. Co. v. Southard, 144 N.C. App. at 440-41, disc. review denied, 548 S.E.2d at 548, 354 N.C. 370, 557 S.E.2d 535-36 (2001). It is precisely these factors which are disputed in the present case. Defendant lived with his mother at an apartment in Benson during the week and spent weekends at the address in Mount Olive where he received his personal mail. His children were enrolled in school in Benson and family members, including defendant, had their own rooms in the Benson apartment. However, from the pleadings and deposition testimony, there is a genuine issue of fact as to whether defendant resided with his mother in a "continuing and substantially integrated family relationship," allowing him to be a resident of more than one household. Davis v. Maryland Casualty Co., 76 N.C. App. 102, 106, 331 S.E.2d 744, 747 (1985). Because there is a genuine issue of material fact concerning defendant's residence, summary judgment was inappropriate. Therefore, we must reverse the entry of summary judgment in this case and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Judges WYNN and McGEE concur.
Report per Rule 30(e).