holding that “resident or member of the same household” is not ambiguousSummary of this case from Geico Cas. Co. v. Collins
Nos. 60, 61.
Argued May 1, 1972. —
Decided June 6, 1972.
APPEAL from a judgment of the circuit court for Milwaukee county: ELMER W. ROLLER, Circuit Judge. Reversed.
For the appellant in Case No. 60 there were briefs and oral argument by Thomas J. Regan of Milwaukee.
For the appellant in Case No. 61 there were briefs and oral argument by Thomas J. Regan of Milwaukee.
For the plaintiff-respondent Keith A. Pamperin in Case No. 60 there was a brief by Petrie, Stocking, Meixner Zeisig, S.C., and John A. Stocking, all of Milwaukee, and oral argument by John A. Stocking.
For the plaintiff-respondent Jerry Thomas Maronek in Case No. 61 there was a brief by Kraemer, Binzak Sylvan of Menomonee Falls, and oral argument by Ronald W. Sylvan.
This is an appeal from an interlocutory judgment which determined that coverage was provided under the terms of an automobile liability insurance policy issued by defendant-appellant, Milwaukee Mutual Insurance Company (hereinafter Milwaukee Mutual).
August 22, 1967, a collision occurred between an automobile driven by Karin Joan (Hodlewsky) Kaminsky and owned by her mother, Katherin Gvadia, and a motorcycle driven by plaintiff-respondent, Keith A. Pamperin, on which plaintiff-respondent, Jerry Thomas Maronek, was a passenger. An action for damages for personal injuries was commenced by Pamperin against Allstate Insurance Company, Karin Kaminsky and Milwaukee Mutual. A similar action was also commenced by Maronek against Milwaukee Mutual. Allstate Insurance Company is the liability insurer of Mrs. Gvadia and is not involved in this appeal. Defendant-appellant, Milwaukee Mutual, is the liability insurer of Wasyly Hodlewsky, Karin Kaminsky's uncle. Under the terms of its policy, Milwaukee Mutual agreed to insure against liability incurred while nonowned automobiles were being operated by the named insured or by a relative of the named insured who was a resident of the same household.
The policy of insurance issued by Milwaukee Mutual to Wasyly Hodlewsky contains the following provisions under Part I relating to liability coverage:
"Persons Insured. The following are insureds under Part I:
". . .
"(b) With respect to non-owned automobile,
"(1) the named insured,
"(2) a relative, but only with respect to a private passenger automobile or trailer, provided his actual use thereof is with the permission of the owner and is within the scope of such permission;
". . .
"Definitions. Under Part I:
"` named insured' means the individual named in Item I of the declarations and also includes his spouse, if a resident of the same household;
". . .
"` relative' means a person related to the named insured who is a resident of the same household, provided neither such relative nor his spouse owns a private passenger automobile;"
The record reveals that Karin Kaminsky was twenty years old and unmarried at the time of the accident. She lived with her mother, Katherin Gvadia, and her grandmother, Anastasia Hodlewsky, in the city of Milwaukee. She had attended one year of college at Oshkosh State University, returning home in 1967, where she enrolled in the summer session at the University of Wisconsin-Milwaukee. The session began June 19, 1967, and ended August 12, 1967. Sometime thereafter, Karin went to stay at the home of her uncle, Wasyly Hodlewsky, who lived with his wife and three children in Greendale, Wisconsin. It appears that one of the Hodlewsky children had become seriously ill and was admitted to the Milwaukee Children's Hospital on July 11, 1967. Mr. and Mrs. Hodlewsky endeavored to maintain a twenty-four hour attendance at the bedside of their child. For the first two or three weeks, they brought their other two children to the home of Mrs. Gvadia. This arrangement became inconvenient and consequently Anastasia came to live at the Hodlewsky home and care for the children. Approximately a week to ten days before the accident, Anastasia, who was in her seventies and described as in poor health, became fatigued and contracted a cold. At the request of Mr. and Mrs. Hodlewsky, Karin volunteered to come to the home and help out. It was hoped that with Karin's assistance, Anastasia would regain her strength.
Karin's primary responsibility was to help care for the Hodlewsky children. At times she prepared meals. She did not do a significant amount of cleaning. She received some spending money from her uncle although there was no agreed-upon wage and she was not considered an employee. There were never any restrictions placed upon her use of the household facilities, and she generally made the same use thereof as any other member of the family. She did not, however, drive either of the two automobiles owned by her uncle at the time. She kept only a few articles of clothing with her and periodically returned to her mother's home to pick up additional clothing. Most of the time her uncle and aunt were at the hospital. Anastasia continued to remain at the home and share the responsibilities of looking after the children. Karin moved into her uncle's home, at most, from seven to ten days prior to the accident. Part of this time she spent at the hospital, and when Mrs. Hodlewsky was at home Karin slept at her mother's home. She did not change her mailing address. Although Karin testified there was no definite date when she knew she would leave her uncle's home, she planned on returning to school in the fall. She registered for the fall term which commenced September 18, 1967, and gave her mother's address as her place of residence.
Wasyly Hodlewsky testified that there was no understanding, agreement or discussion with Karin as to the length of her stay. Everything was on a day-to-day basis and the duration of Karin's stay depended on how long she would be needed. The Hodlewskys were aware that Karin was on vacation and that there was a time when she had to return to school. They had hoped that she would be able to stay until Anastasia recovered, and Karin had indicated to them she would be able to help out until this time.
On the evening of August 22, 1967, Mr. Hodlewsky had brought Karin to the hospital where Karin's mother had gone to relieve Mrs. Hodlewsky. Karin asked her mother for permission to use her car to go home and get some clothes. Apparently, Karin had intended to return and stay at the hospital that evening. After the accident, Karin stayed at her mother's home. Thereafter she went to her uncle's home only once or twice, but did not stay overnight. Anastasia took care of the children until September 2, 1967, when the Hodlewsky's child returned home from the hospital.
At the close of all the testimony, Milwaukee Mutual moved for a directed verdict. The trial court reserved ruling on the motion, in accordance with preferred practice, and submitted the case to the jury in a single question special verdict: "On August 22d 1967, was Karin Joan Kaminsky, nee Karin Joan Hodlewsky, a resident of the same household as her uncle, Wasyly Hodlewsky?" The jury answered the question in the affirmative. Defendant's motion for a directed verdict was denied, together with various other motions after verdict. The trial court rendered an extensive memorandum decision and entered an interlocutory judgment in accordance with the special verdict.
We first consider the issue of whether the trial court erred in refusing to direct a verdict in favor of the defendant and to determine as a matter of law that Karin Kaminsky was not a resident of her uncle's household at the time of the accident.
It is well settled that a case may be taken from the jury and decided as a matter of law:
"`". . . only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion." . . .'" Eden v. La Crosse Lutheran Hospital (1971), 53 Wis.2d 186, 191, 191 N.W.2d 715.
If there is any evidence, when viewed most favorably to the party against whom the verdict is sought to be directed and, which under any reasonable view would sustain a defense or a cause of action, the case must be submitted to the jury. Flintrop v. Lefco (1971), 52 Wis.2d 244, 190 N.W.2d 140; Phoenix Ins. Co. v. Wisconsin Southern Gas Co. (1970), 45 Wis.2d 471, 484, 485, 173 N.W.2d 610.
Residents or members of a household, as those terms are employed in insurance policies for purposes of coverage, is a phrase designative of a relationship where persons live together as a family and deal with each other in a close, intimate and informal relationship and not at arm's length. Lontkowski v. Ignarski (1959), 6 Wis.2d 561, 95 N.W.2d 230; National Farmers Union Property Casualty Co. v. Maca (1965), 26 Wis.2d 399, 132 N.W.2d 517; Herbst v. Hansen (1970), 46 Wis.2d 697, 176 N.W.2d 380. However, living together under one roof as a family is neither the sole nor the controlling test of whether a person is a resident or member of a household. In addition, the intended duration of the relationship is a necessary element, whether the attempt is to show the creation or the termination of the relationship. As this court stated in National Farmers Union Property Casualty Co. v. Maca, supra, 406:
". . . The intended duration should be sufficient so as not to be inconsistent with the intimacy of the relationship, and also long enough so that it is reasonable to expect the parties to take the relationship into consideration in contracting about such matters as insurance or in their conduct in reliance thereon."
In that case, the policy of insurance provided coverage for farm accidents except for those causing bodily injury to the named insured, his spouse and any relative of the named insured who was a resident of the same household. The named insured's thirty-two-year-old son was injured while operating a corn picker on his father's farm and commenced a personal injury action against his father. The son had been living with his parents for a period of five months prior to the accident under circumstances consistent with a household relationship. Both the father and the son maintained that the situation was temporary. Although the son was employed outside of the farm at the time, he was seeking other employment which, if secured, would cause him to move from the farm. The trial court found, as a matter of law, that the son was a member of his father's household. On appeal, this court affirmed, stating on pages 407, 408:
". . . counsel argues 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. 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.' 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. . . ." (Emphasis added.)
Thus, while the intended duration does not require the permanency generally associated with the establishment of a legal domicile, something more is required than a mere temporary sojourn. In this connection the subjective or declared intent of the individual, while a fact to be considered, is not controlling, but the intended duration oftentimes must be determined only after a thorough examination of all the relevant facts and circumstances surrounding the relationship.
Doern v. Crawford (1966), 30 Wis.2d 206, 140 N.W.2d 193, involved a situation where the attempt was to show that the relationship of "resident of the same household," having once been established, had terminated by the named insured's absence from the household. The policy provision with respect to nonowned vehicles was identical to the one in the instant case. An accident occurred while a nonowned vehicle was being driven by the stepson of the named insured. Although the named insured had lived with his wife and stepson for some time, six days prior to the date of the accident he instituted an action for divorce and left the home. Defendant-Crawford's insurance carrier denied coverage and moved for summary judgment. The trial court denied the motion. On appeal, this court affirmed; however, the order of the trial court granting plaintiff's motion for summary judgment was reversed for the reason that the disposition of the issue raised was not proper on motion for summary judgment:
"The holdings of these three cases [ Raymond v. Century Indemnity Co. (1953), 264 Wis. 429, 59 N.W.2d 459; Lontkowski v. Ignarski, supra; and National Farmers Union Property Casualty Co. v. Maca, supra] 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 is 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. In the instant situation the fact that Paulson [the named insured] later discontinued the divorce action and returned to the household of his wife and stepson is not conclusive on the issue of whether his absence therefrom at time of accident was intended by him to be permanent or temporary; nor is the statement contained in his affidavit, that he left the family household with intent not to return, conclusive on this issue." Doern v. Crawford, supra, pages 213, 214. See, also: Herbst v. Hansen, supra.
Therefore, under the decisions of this court, a determination as to whether a person is a resident or member of a household in the present context is dependent upon three factors: (1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship ". . . in contracting about such matters as insurance or in their conduct in reliance thereon." National Farmers Union Property Casualty Co. v. Maca, supra, 406.
The previous decisions of this court indicate that no one factor is controlling but that all of the elements must combine to a greater or lesser degree in order to establish the relationship. We also approve the previous determinations of this court that the terms "resident or member of the same household," as used in policies automobile liability insurance, are not ambiguous and, therefore, should be construed in light of their plain and common meaning. It makes no difference whether the terms are employed to define exclusion or inclusion from coverage, or whether the question is one of creating or terminating the relationship. Lontkowski v. Ignarski, supra, 566; Giese v. Karstedt (1966), 30 Wis.2d 630, 141 N.W.2d 886.
The material facts in the instant case show that Karin came to the Hodlewsky home for the specific purpose of assisting in caring for her cousins while her uncle and aunt were at the hospital. She made full use of the household facilities without restriction, although she did not drive either of two automobiles owned by her uncle. The record does not support a finding that she moved any significant amount of her possessions to the home or established any specific area the home as her own. On the contrary, she kept only a few clothes with her and periodically returned to her mother's home to pick up additional belongings as needed. She did not reside continuously at her uncle's home but part of the time she slept at the hospital, and when her aunt was at home Karin slept at her mother's home. She came to the Hodlewsky home possibly a week to ten days prior to the accident and returned thereto only once or twice after the accident. At most, the length of her stay could have been a little more than one month when she planned on returning to school, and was subject to an earlier termination depending upon the recovery of either her grandmother or her cousin. Although respondent contends that it could reasonably be inferred that Karin might have been willing to extend her stay beyond the time she planned on returning to school, such an inference would be mere speculation in view of the fact that all persons concerned, including the trial court, acknowledged that Karin's assistance in the Hodlewsky home was limited in terms of time by the commencement of school.
Appellant contends there were no disputed facts or conflicting inferences to warrant the submission of the case to the jury. The trial court agreed in part with plaintiff's counsel in that the evidence presented issues of fact with respect to (1) whether the parties were living together in an informal, intimate relationship, and (2) whether the duration of the stay was likely to have been substantial and of sufficient duration so as not to be inconsistent with the relationship.
We are of the opinion, however, that the evidence cannot support a finding that the intended duration of Karin Kaminsky in her uncle's household was likely to have been substantial. She came into the household under circumstances where an early termination was highly probable. Furthermore, she transferred none of her possessions to the home and did not reside there continuously during the period prior to the accident. While her relationship with the Hodlewskys may have been intimate and informal, it cannot be said that she was living in the household under circumstances where such matters as insurance would reasonably have been considered by the parties. Recognition must be given to the fact that the instant case is primarily and essentially concerned with the provisions of an insurance contract.
We conclude that the trial court should have directed a verdict in favor of the appellant.
Having determined the ultimate issue in this case as a matter of law, we find it unnecessary to consider the other issues raised on this appeal.
The judgment of the trial court is reversed and the cause remanded, with directions to enter judgment dismissing the complaints as to defendant, Milwaukee Mutual Insurance Company.
By the Court. — Judgment reversed and cause remanded, with directions to enter judgment for the defendant, Milwaukee Mutual Insurance Company.