Summary
holding that trial court did not err in overruling insurer's motion for judgment notwithstanding verdict because evidence sustained finding that deceased nineteen year old son of named insured, who had graduated from high school and was working and living in another town to save money for college but who spent nearly every weekend at insured's house, was a resident of the insured's household within meaning of insurance policy
Summary of this case from American Commerce Insurance Company v. BachichaOpinion
43692.
ARGUED JUNE 4, 1968.
DECIDED JUNE 18, 1968.
Declaratory judgment. Appling Superior Court. Before Judge Flexer.
Sharpe, Sharpe Hartley, T. Malone Sharpe, for appellant.
J. H. Highsmith, Gordon Knox, Jr., for appellees.
The evidence presented an issue whether a nineteen-year-old son, who worked and lived in an apartment in one city and returned on weekends to his father's home in another city, was a resident of the household of his father within the meaning of the father's automobile liability insurance policy extending non-owned automobile coverage to relatives of the named insured who were residents of the same household.
ARGUED JUNE 4, 1968 — DECIDED JUNE 18, 1968.
This declaratory judgment action was brought by a liability insurer to determine its duty to defend a negligence action involving an automobile driven by the son of its named insured. The collision was fatal to the driver, and the negligence action was brought against his administrator by a passenger in the automobile. The only issue was whether at the time of the automobile collision the son was a resident of the same household as the named insured so as to be an insured under his father's policy with respect to the operation of a non-owned automobile, the son having been driving the automobile of a friend at the time. The jury returned a verdict against the insurer on this issue. The insurer appealed, enumerating as error the overruling of its motion for judgment notwithstanding the verdict and for a new trial.
At the trial there was evidence that the deceased, age 19, had graduated from high school and thereafter was employed for three or four months continuing to live in his father's home in Baxley. Then he found employment in Atlanta where he worked for six months before his death. During this period he shared an apartment in Atlanta with his brother and another friend, paying a part of the rent. He lived in the apartment Monday through Friday while he worked. Almost every weekend he went to Baxley on Friday night and stayed at his father's house, where he maintained a room and left some of his clothes, until Sunday night when he returned to Atlanta. On the weekends his mother did his laundry which he brought from Atlanta, and prepared food for him to take back to Atlanta. There was evidence that he was working for the purpose of saving money to continue his education in college, and also evidence that he owned an automobile which he bought while working on his first job. The collision that resulted in his death and in the negligence action against him happened when he was driving the car of a friend with whom he was returning to Atlanta from a weekend in Baxley.
The question in this case is whether the facts stated above created an issue that the son was a "resident of the same household" as his father within the meaning of the policy provision expressly extending coverage to relatives of the named insured who are residents of the same household in their use of private passenger automobiles not owned by the named insured with the permission of the owner. See Hardware Mut. Cas. Co. v. Home Ind. Co., 241 Cal.App.2d 303 ( 50 Cal. Rep. 508).
The insurer argues that "resident" in that provision means a regular resident of the household. This argument overlooks the principle that the burden is on the party preparing a contract of adhesion to make its terms precise and clear and that ambiguous terms in an insurance policy are construed favorably to the insured. Loftin v. U.S. Fire Ins. Co., 106 Ga. App. 287, 293 ( 127 S.E.2d 53). It is generally recognized that a person may, and many people do, have more than one residence, and the composer of this policy provision could have defined "resident" as "resident exclusively" or "resident for a greater part of the time." The authorities we have found on the question do not indicate that residing at another place a part of the time negates a relative being a resident of the household of an insured under an extension of coverage provision. American Universal Ins. Co. v. Thompson, 62 Wn.2d 595 ( 384 P.2d 367); Hardware Mut. Cas. Co. v. Home Ind. Co., supra. Cases involving the determination of a person's residence in other contexts are not controlling, e.g., Hinton v. Lindsay, 20 Ga. 746.
The evidence did not demand a finding as a matter of law that the son was not a resident of the same household as his father, the named insured. Accord Allen v. McDermott, 110 Ga. App. 536, 538 ( 139 S.E.2d 143). The trial court did not err in overruling the insurer's motions for judgment notwithstanding the verdict and for a new trial.
Judgment affirmed. Bell, P. J., and Quillian, J., concur.