Under an automobile liability policy excluding from its coverage members of the family residing in the same household as the insured, it cannot be said as a matter of law that the insured's mother-in-law, although living under the same roof, was a resident of his household where there is evidence which would support a finding that she maintained a separate domestic establishment.

ARGUED JULY 9, 1970 — DECIDED SEPTEMBER 8, 1970 — REHEARING DENIED OCTOBER 7, 1970.

In an action for a declaratory judgment, plaintiff insurer appeals from the denial of its motion for summary judgment. Defendants are all the parties in a pending negligence action which the insurer is defending under a reservation of rights.

The insured is George Harned. The injured party is his mother-in-law, Mrs. Snyder, who was riding as a guest in the Harned automobile driven by her daughter Peggy. The issue on this appeal is whether, as a matter of law, Mrs. Snyder is a "member of the family of the insured residing in the same household as the insured" so as to exclude coverage for bodily injury liability under the terms of the policy.

The deposition and affidavits of the defendants show: At the time of the accident, Mrs. Snyder and the Harneds lived under the same roof, a one-family house owned by George. The ground floor contained a living room, dining room, den, bedroom, kitchen and bathroom. The second floor had two rooms, furnished and used exclusively by Mrs. Snyder as a sitting room and as a bedroom. The Harneds similarly furnished and used exclusively the ground floor rooms except for the kitchen and bathroom which were shared. Mrs. Snyder carried her towel and toilet articles to and from the bathroom when she used it. Each of the women had her own stove and utensils in the kitchen and used them exclusively in food preparation. There was only one refrigerator but separate shelves were allocated. The one washing machine was also used in separate shifts. Mrs. Snyder was employed full time and went out to work every day. She paid $15 a week to the Harneds as "rent." She bought her own groceries and household supplies, prepared her own meals and ate them alone in the kitchen on a completely different schedule from the Harneds. She spent the evenings in her own sitting room watching her own television set.

HALL, Presiding Judge.

State Farm cites four Georgia cases in which the exclusion in question was found applicable. Morris v. State Farm Mut. Auto. Ins. Co., 88 Ga. App. 844 ( 78 S.E.2d 354); Varnadoe v. State Farm Mut. Auto. Ins. Co., 112 Ga. App. 366 ( 145 S.E.2d 104); Teems v. State Farm Mut. Auto. Ins. Co., 113 Ga. App. 53 ( 147 S.E.2d 20); Keene v. State Farm Mut. Auto. Ins. Co., 114 Ga. App. 625 ( 152 S.E.2d 577). In each case there was some close blood relationship, such as we have here, and some other factor tending to show a degree of independence from the family (e.g., employed adult children who paid board at home; husband who was sleeping in his attached office rather than the marital bed). Nevertheless, each of these various family relationships operated within a "domestic establishment under single management," the definition of "household" as applied to this exclusion. 8 Blashfield Auto. Law Practice p. 70, (3d Ed.), § 318.4; Keene v. State Farm Mut. Auto. Ins. Co., supra.

The drafters of the clause had some actuarial purpose in mind. Their choice of words was not casual. The clause does not apply, for example, to a relative, however close, living elsewhere, nor to a resident of the same household who is not a "member of the family" (a term including not only a blood relative, but also one who enjoys all the prerogatives of family life). What then, is the purpose of the exclusion? "To safeguard the insurer against the natural partiality of the insured to assist the injured person when he is a member of the family circle." 7 Appleman, Insurance Law Practice, pp. 389, 390, § 4411; State Farm Mut. Auto. Ins. Co. v. James, 80 F.2d 802; Cartier v. Cartier, 84 N.H. 526 ( 153 A 6).

This statement only takes us half way. It does not tell us what there is about a "family circle" that significantly raises the probability of bending evidence in its favor (an answer which would also give us a clue for identifying this group). Would one be less likely to "assist" an injured mother who had an apartment across town than one living in the same house? The drafters think so. Therefore, the natural affection of the relationship is not the determining factor. The key difference may be that in a truly unified household (the single domestic establishment) there is an assumption of pooled financial responsibility, even though the various members contribute independently to the pot. There is an assumption that the insured would, as a matter of course, bear the expenses resulting from the injury (by either upping his share or helping to cut down generally) and that life would continue as usual; that the injured family member would not be barred from his place at the table or the TV even though unable to work and pay board for awhile; and that the increased family doctor bills would be paid (or unpaid) according to custom. In this situation, the insured can only gain financially by the friendly lawsuit. The same assumptions cannot be made where people of the same relationship maintain separate establishments. Whatever our notions of familial duty, we cannot assume that the insured would begin providing groceries and supplies (or money for them) to one who has formerly provided his own, or would assume responsibility for medical bills which were formerly none of his affair. On the contrary, he might believe that the other had (or should have) made adequate provision against such emergencies.

The critical distinction when a relative of the insured is injured should therefore be whether separate domestic establishments are maintained. "A common roof is not the controlling element." 12 Couch on Insurance 2d, 495, § 45.520. It is rather a conclusion based on the aggregate details of the living arrangements of the parties. In a situation very similar to the one here, the Pennsylvania Court found there was no common household. See Hoff v. Hoff, 132 Pa. Super. 431 ( 1 A.2d 506).

We cannot say as a matter of law that Mrs. Snyder was living in the Harned household. There is evidence which, if believed, would authorize a jury to conclude that she maintained her own domestic establishment, although under the same roof, and therefore another "household" within the meaning of the policy.

The trial court did not err in denying the motion for summary judgment.

Judgment affirmed. Evans, J., concurs. Deen, J., concurs in the judgment.