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Vol. 73, No. 4, April 2000 |
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Determining "Resident" of the Household
Seichter v. McDonald
presented a typical situation. Joseph McDonald had grown up on
his parents' farm and then moved to Madison. There were
any number of indices of residency that remained with his parents'
home, including some clothes, the address on his drivers license,
and the address on his tax forms. Joseph visited frequently and
helped with farm work in the spring and fall. On the other hand,
at the time of the accident, Joseph was 22 and had lived in apartments
for more than a year in Madison, where he worked and attended
school. Although not mentioned by the court of appeals, all witnesses
testified that Joseph was financially self-sufficient. Joseph
and his parents all testified that Joseph had no intention of
moving back with his parents because he was not going to be a
farmer. They testified that he was living in Madison. The jury
found that Joseph was a resident of his parents' farm, and
this finding was upheld by the trial court and the court of appeals.
The defense objected
to the jury instruction as misleading and a misstatement of the law.
It also argued that Joseph's intent not to return to the household
was not disputed and therefore Joseph was not a resident of his parents'
farm based on Doern, which stated:
"We determine that ... physical absence coupled with
an intent not to return is sufficient to sever the absent person's
membership in the household."16
The court of appeals in Seichter disagreed and stated:
"[a]nd nowhere in the Doern opinion does the court
state that expression of an intent not to return is anything
other than one of several factors to be considered."17
Other States' Jury Instructions
Other jurisdictions have looked to Pamperin and other
Wisconsin authority when establishing residency rules. In doing
so, these states have refined residency law and made it easier
for juries to apply. For example, State Farm Mutual Auto.
Ins. Co. v. Nguyen18 reviewed Pamperin
and concluded the intent of the party to stay or return is the
core question in a residency case.
Another Texas case identified what it called the "real
test" of residency:
"The controlling test of whether persons are residents
of the same household at a particular time, within the meaning
of the policy in question, is not solely whether they are then
residing together under one roof. The real test is whether the
absence of the party of interest from the household of the alleged
insured is intended to be permanent or only temporary -
i.e., whether there is physical absence coupled with an intent
not to return."19
This same holding (real test is intent to return) was discussed
in LaFleur v. Dugas,20 Cicciarella
v. Amica Mut. Ins. Co.,21 Mathis v.
Employers Fire Ins. Co.,22 and Rice
v. State Farm Fire & Casualty Co.23
Minnesota looked to Wisconsin case law when applying "resident
of the household" language in insurance policies. Fireman's
Ins. Co. v. Viktora24 adopted the Pamperin
criteria and, in Wood v. Mutual Serv. Cas. Ins. Co., Minnesota
subsequently laid out the basis for an easily understood jury
instruction:
"We conclude, in the final analysis, that, in determining
residency in a household, factors to be considered include: (1)
age of the person; (2) whether a separate residence is established;
(3) self-sufficiency of the person; (4) frequency and the duration
of the stay in the family home; and (5) intent to return.
"The fact that belongings remain in the home and the
home continues to be the mailing address may be considered, but
are not dispositive."25
Seichter cited with approval Minnesota case law and
this list of items a jury should consider in the determination
of residence.26
The Nebraska Supreme Court defined "resident of the insured's
household" as "one who dwells or has an abode under
the same roof as the named insureds for a duration of sufficient
length so that the occupiers can be said to compose a family."27 The court also listed several factors to be
considered, including, but not limited to, the intent of the
parties, the formality of the relationship between the person
in question and the members of the named insured's household,
the permanent or transient nature of that person's residence
therein, the absence or existence of another place of lodging
for that person, and the age and self-sufficiency of that person.28
Courts also have relied upon a variety of factors in determining
whether a separated spouse is still a resident of the insured
spouse's household. Hawaiian Ins. v. Guaranty Co. Ltd.
v. Federated American Ins. Co. (1975)29
concluded the basic inquiry was whether the separation of the
spouses was intended to be permanent without the prospect of
reunion or only temporary with reconciliation possible.30
Factual considerations include the living arrangements, attitudes
toward one another, whether they continued to see each other,
the status of financial obligations, and public policy in favor
of continuing coverage to both spouses during the legal existence
of the marriage.31
A Proposal
States have taken the legal principles of Wisconsin cases
and developed jury instructions that are straightforward and
easy to understand. The result is a list of factors for a jury
to weigh in determining the true intent of the person in question.
A proposed jury instruction is provided that sets out the
primary elements involved in determining residency. Two basic
options are given; which one is used depends upon whether the
individual involved was living at the residence in question at
the time of the accident. Choosing one of those two options enables
the jury to focus upon the facts before it.
Doern and other jurisdictions note that the primary
issue in a residency case is the intent of the parties. This
is emphasized in the proposed instruction by noting intent as
a "key element." However, consistent with Seichter,
the testimony of a witness is a factor to be considered along
with other evidence. The jury is instructed to examine if such
testimony is self-serving or against the witness's interest.
For example, under the proposed jury instruction, if the person
in question said there was no intent to return home to the parents'
home, and is the person seeking coverage, that should carry more
weight than another's testimony of an intent to return to
live at the residence.
Other factors involved in deciding the residency issue, particularly
those involving young adults, are listed in the instruction and
follow Minnesota's lead. Other indicia of residency may
be added or deleted from the instruction, depending upon the
facts of the case. For example, if the issue involves separated
spouses, the factors listed in Hawaiian Ins. may be appropriate.
Arnold P. Anderson, Marquette 1969, is the author of Wisconsin
Insurance Law, 4th Edition, corporate counsel with Wisconsin
Reinsurance Corp., and a member of the firm of Mohr & Anderson
S.C., Madison. He was one of the attorneys involved in Seichter
v. McDonald, discussed in this article. |
The instruction does not include any reference to the parties
considering the relationship in contracting about such matters
as insurance. This language appears in several Wisconsin cases.32
In State Farm Fire & Cas. Co. v. Short,33
the insurance company argued the instruction was in error because
it did not include this consideration about insurance. The Minnesota
Supreme Court disagreed, stating that an instruction without
such wording still conveyed "... a clear, fair and correct
understanding of applicable law."34 It
is not likely that people actually consider whether someone is
a "resident" when purchasing insurance. It may be a
factor in an individual case, and, if so, it would be more help
to a jury to be specific about it. For example, in the proposed
instruction, the jury could consider that when the residents
bought auto insurance whether the person in question was listed
as a driver living in the household.
Hopefully this suggested instruction will assist a jury, as
well as court and counsel, as they try to answer the question:
"Where were you living at the time of the accident?"
Endnotes
1 Welch v. State Farm Mut. Ins. Co.,
122 Wis. 2d 172, 361 N.W.2d 680 (1985).
2 See Shannon v. Shannon, 150 Wis.
2d 434, 442 N.W.2d 25 (1989).
3 Londre v. Continental Western Ins. Co.,
117 Wis. 2d 54, 58, 343 N.W.2d 128, 131 (Ct. App. 1983).
4 Doern v. Crawford, 30 Wis. 2d 206,
213, 140 N.W.2d 193, 196 (1966).
5 Pamperin v. Milwaukee Mut. Ins. Co.,
55 Wis. 2d 27, 36-37, 197 N.W.2d 783, 789 (1972).
6 Id. at 38, 197 N.W.2d at 787.
7 Nat'l Farmers Union Property &
Cas. Co. v. Maca, 26 Wis. 2d 399, 132 N.W.2d 517 (1965).
8 Id. at 406, 132 N.W.2d at 520.
9 Quinlan v. Coombs, 105 Wis. 2d 330,
336, 314 N.W.2d 125, 129 (Ct. App. 1981).
10 Belling v. Harn, 65 Wis. 2d 108,
221, N.W.2d 888, 892 (1974). See also, Wall v. Heritage
Mut. Ins. Co., 151 Wis. 2d 691, 446 N.W.2d 75 (Ct. App. 1989).
11 State Farm Mut. Auto. Ins. Co. v. Taussig,
592 N.E.2d 332 (Ill. App. 1 Dist. 1992). (Emphasis added).
12 Id. See also, Stoner
v. State Farm Mut. Auto. Ins. Co., 780 F.2d 1414, 1417 (8th
Cir. 1986), holding that the phrase "lives with you"
was not ambiguous.
13 Pamperin at 36-37, 197 N.W.2d at
788-89.
14 Seichter
v. McDonald, 228 Wis. 2d 838, 599 N.W.2d 71 (Ct. App.
1999).
15 Id.
at 846.
16 Doern at 213, 140 N.W.2d at 196.
17 Seichter
at 843-44.
18 State Farm Mut. Auto. Ins. Co. v. Nguyen,
920 S.W.2d 409, 412 (Tex. App. 1996).
19 Southern Farm Bureau Cas. Ins. Co.
v. Kimball, 552 S.W.2d 207, 208 (Tex. App. 1977).
20 LaFleur v. Dugas, 714 So. 2d 792
(La. App. 1998).
21 Cicciarella v. Amica Mut. Ins. Co.,
66 F.3d 764, 769 (5th Cir. 1995).
22 Mathis v. Employers Fire Ins. Co.,
399 So. 2d 273, 275 (Ala. 1981).
23 Rice v. State Farm Fire & Cas.
Co., 628 So. 2d 582 (Ala. 1993).
24 Fireman's Ins. Co. v. Viktora,
318 N.W.2d 704, 706 (Minn. 1982).
25 Wood v. Mutual Serv. Cas. Ins. Co.,
415 N.W.2d 745, 748-49 (Minn. App. 1987).
26 Seichter
at 845, 599 N.W.2d at 74.
27 Amco Ins. Co. v. Norton, 500 N.W.2d
542, 546-47 (Neb. 1993).
28 Id. at 547.
29 534 P.2d 48 (Wash. 1975).
30 Id. at 56.
31 Id.
32 See Pamperin, supra note
13.
33 459 N.W.2d 111 (Minn. 1990).
34 Id. at 114.
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