Vol. 73, No. 4, April 2000

Determining "Resident"
of the Household

For purposes of insurance coverage, it is important to determine if the person suffering an injury was a "resident of the household" of the insured. The author explains the need for - and offers a proposal of - a uniform instruction to help guide juries in answering this not-so-simple question.

by Arnold P. Anderson

here are some key questions a personal injury attorney must ask the client and the tortfeasor. The answers to these questions will determine if there is insurance to cover the claim.

• Do you have insurance?

• Where were you living at the time of the accident?

• Did the people you lived with have insurance?

This article deals with the second question: Where was the person living at the time of the accident? Stating that question in terms of the insurance policy, was that person a "resident of the household" of someone who has insurance?

This article describes the need for a detailed and factual instruction to guide juries in resolving this residence issue. Some basic policy language and Wisconsin case law is discussed and then the experience of other states is explored. Finally, the proposed jury instruction allows a jury to go through a list of factors it should consider in deciding if a person was a resident of a household at the time of the accident.

Auto Insurance

"Insured as used in this Part means: You or any family member for the ownership, maintenance, or use of any auto or trailer.

"Family member means a person related to you by blood, marriage, or adoption, who is a resident of your household. This includes a ward or foster child."

If the injuries are the result of an auto accident, the inquiry about residence will disclose if the client has uninsured (UM) or underinsured (UIM) motorist insurance. A resident should also be insured for UM and UIM motorist coverage that is available to a named insured. Attorneys sometimes forget to check at "home" for that type of coverage when a person is riding in a nonowned car. There may be more UM or UIM insurance where that client-passenger lives. Residents of the named insured's household will have the benefits of UM and UIM coverage no matter where they go since such coverage is "personal and portable."¹

Homeowners Insurance

Homeowners policies also insure residents of the household of the named insured. A typical homeowners policy defines insured as follows:

"Insured means you and residents of your household who are your relatives; or other persons under the age of 21 and in the care of any person named above."

Where a person is living also may decide if a family exclusion in a homeowners policy will preclude coverage. This is an exclusion for bodily injury claims to a resident of the household of the named insured.²

Not Domicile, but Residence

Insurance policies, such as the ones quoted above, key on a person's residence, not domicile. Wisconsin recognizes the difference between "domicile" and "household." A person may have only one true domicile but can have more than one household for insurance purposes.³ Doern v. Crawford noted: "Every person has a domicile but not every person is a member of a household."⁴

The terms "resident or member of the same household" are not ambiguous and are construed in light of their plain and common meaning.⁵ To establish residence, the duration of an individual living in the household must be substantial. If early termination is highly probable, that person is not a resident.⁶

National Farmers Union Property & Casualty Co. v. Maca⁷ stated that "resident of the household" includes a close relationship "varying greatly in detail" and "includes people who live or are 'living' together as a family in a closely knit group" usually because of a "close relationship by blood, marriage or adoption."⁸ However, persons need not be related to be a "resident of the household":

"Because a relationship between people, whether married or unmarried, can bring about the opportunity to interchange cars frequently, the insurance policy can properly exclude protection for unmarried residents driving each other's cars."⁹

When a spouse has moved out of the household because of a separation or a pending divorce, Wisconsin courts are reluctant to find that the separated spouse is no longer a resident of the family household. Courts do not want the issue of residency to affect a relationship that is already in jeopardy.¹⁰

Who Lives With You

State Farm Mutual Automobile Insurance Company does not use "resident" language in its auto policy, but defines "relative" as follows:

"A person related to you or a spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated children away at school."¹¹

The term "lives with you" is more restrictive than "resident of the household." In Taussig, the son still had a room in his parent's home, left some of his personal belongings there, and visited at least once a week. Some of his bills were sent to his parents', he was still on his parents' health insurance, and his income tax return, his drivers license, and his motorist registration listed the father's residence. The father testified in deposition that he believed his son could not make it on his own without financial, emotional, and psychological assistance and that he contributed to his son's living expenses. However, the fact that the son had moved out of the parents' home into his own apartment, and slept and ate most of his meals at his apartment meant that the son was living on his own and not "living with" his parents for purposes of the auto policy.¹²

Wisconsin Jury Instructions

There is no pattern jury instruction in Wisconsin for residency issues. Pamperin v. Milwaukee Mutual Ins. Co. is relied upon by attorneys and judges in formulating a residency jury instruction:

"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."¹³

This language from Pamperin is often lifted verbatim and used as a jury instruction. This was done in Seichter v. McDonald,¹⁴ where the trial court gave the following instruction:

"The question on the verdict asks whether or not Joseph McDonald was a resident of his parents' household. It is recognized that a person may be a resident of more than one household for insurance purposes. Members of a household are not required to live under the same roof to be considered part of the same household. You should consider the following three factors to determine whether Joseph McDonald was a resident of his parents' household. No one factor is controlling but all of the elements must combine to a greater or lesser degree in order to establish the relationship. The factors are: (1) living under the same roof or any present intent to return to 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 a family or household relationship, and from which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance."

The Wisconsin Court of Appeals found this instruction to be "legally sound."¹⁵

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