Andrade v. Shiers
This text of 516 So. 2d 1192 (Andrade v. Shiers) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Jesus ANDRADE, Plaintiff-Appellee,
v.
Jesse SHIERS, Ramona Shiers and Southern Farm Bureau Insurance Company, Defendants-Appellants.
Court of Appeal of Louisiana, Second Circuit.
*1193 Mark E. Posey, Rayville, for defendants-appellants, Jesse and Ramona Shiers.
Samuel T. Singer, A Professional Law Corp. by Stephen G. Dean, Winnsboro, for plaintiff-appellee.
Cotton, Bolton & Hoychick by Terry A. Doughty, Rayville, for defendant-appellee, LA Farm Bureau Ins.
Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
MARVIN, Judge.
In this action for personal injury damages, the defendant-homeowners appeal a summary judgment dismissing plaintiff's demand against their homeowner's insurer. Summary judgment upheld the insurer's contention that the plaintiff, who is the father of the wife-homeowner, was an omnibus insured and was not covered for liability purposes because of the policy description of an insured as a "relative" who is a "dependent resident of the [homeowner's] household."
The insurer seeks to dismiss the defendant-homeowners' appeal on the grounds that the summary judgment against the plaintiff, who did not appeal, is final and that the coverage issue is moot or the defendant-homeowners have no right to appeal the issue.
We deny the motion to dismiss and reverse the summary judgment, finding that genuine issues of fact that are material to the coverage issue are disputed. CCP Arts. 2082, 966(B).
MOTION TO DISMISS APPEAL
Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. CCP Art. 2082. The sole object of an appeal is to give an aggrieved party to a suit recourse to a superior tribunal for the correction of a judgment of an inferior court. Any party, or person who could have intervened in the trial court, who is aggrieved by a trial court judgment has the right to appeal that judgment unless he has acquiesced therein, or is otherwise deprived of that remedy. CCP Arts. 2085, 2086. A party to a suit is given an unqualified right to appeal from an adverse final judgment and need not allege and show a direct pecuniary interest in order to be entitled to appeal. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963). A person need not have a judgment directly against him in order to appeal that judgment. Brock v. Tidewater Construction Company, 318 So.2d 100 (La.App. 3d Cir.1975).
Appellants are parties-defendants. They are aggrieved by the judgment, which implicitly decrees that their insurer does not have a duty to defend this claim on their behalf or to pay any part of a judgment on the merits if appellants should be cast in judgment. Appellants have not acquiesced in the summary judgment in favor of their insurer on the coverage issue.[1]
Appellants have an actual interest in this appeal and the issue of the correctness of the summary judgment dismissing the insurer from this suit is before us. See Ewing v. Sharp, 294 So.2d 902, 905 (La. App. 2d Cir.1974).
SUMMARY JUDGMENT MATERIAL FACTS
Appellants are the daughter and son-in-law of the plaintiff. While plaintiff was living with them in Richland Parish, he was injured by their cow when he tried to pick up her newborn calf. He sued them and their liability insurer. After some depositions were taken, the insurer filed a motion *1194 for summary judgment asserting that plaintiff's claim was excluded from coverage under the policy. The liability section of the policy does not cover personal injury claims of any "insured." The word "insured" is defined to include "relatives of the named insured or his spouse" if they are "dependent residents of the household."
Plaintiff, in his mid-70's, is a citizen of Mexico who speaks little or no English. His deposition was taken through a translator. He did not own a home in Mexico but has lived with different relatives there, including his sister and two of his other children. Besides those children and his Louisiana daughter, plaintiff has other children and a wife with whom he has not lived for several years. He is not legally separated. The wife and other children live in California. Plaintiff moves around and stays with each of his several children from time to time. He explains that he does not go to California very often because it is too far away.
About ten months before the accident, plaintiff came to Richland Parish with appellants when they returned from a visit to Mexico. He is in the United States as what he calls an "undocumented alien." He did not intend to stay very long in Louisiana. Shortly after he arrived, plaintiff's daughter learned she was expecting a child. Plaintiff then determined to extend his stay until after his grandchild was born. The accident occurred one day after the baby was born. When the depositions were taken almost 18 months after the accident, plaintiff was yet living with appellants. Throughout his stay, plaintiff had a room to himself in appellants' home and was free to come and go as he pleased. He ate and slept there, had no job, no income, and did not pay or contribute to the household expenses.
The trial court found from these undisputed facts that plaintiff was clearly a "`dependent resident' in the household of [appellants]." The language used in the policy is "dependent resident of the household." The term "resident of the household" as used in insurance policies, which either extends or denies coverage, has been frequently litigated and construed. The judicial construction of the term was not specifically discussed by the trial court.
Whether a person is or is not a resident of a household is a question of law as well as fact that is to be determined from all of the facts of each case. The question is one largely of intention. The intention of a person to be a resident of a particular place is determined by his expressions at times not suspicious, and his testimony, when called on, considered in the light of his conduct and the circumstances of his life. Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La. App.3d Cir.1976), writ denied.
Whether a living arrangement renders persons "residents of the same household" is not solely dependent upon whether they are living under the same roof. The emphasis is on whether the person can be found to have "membership in a group rather than an attachment to a building." Residency in this respect is "a matter of intention and choice" rather than a matter of location. Bearden v. Rucker, 437 So.2d 1116 (La.1983).
The pattern which emerges from the myriad of decisions considering the term "household" shows an emphasis on "dwelling as a family under one head," whether or not the persons live under the same roof. See and compare Buxton v. Allstate Ins. Co., 434 So.2d 605 (La.App. 3d Cir.1983); and Hernandez v. Comco Ins. Co., 357 So.2d 1368 (La.App. 4th Cir.1978), writ denied.
Plaintiff's intention to be a member of the household headed by his daughter or son-in-law was not thoroughly revealed or explored in the depositions. We quote from plaintiff's deposition, taken through a translator:
Q. Would you ask him how long he was planning on staying when he first came?
A. Three months. He was thinking of staying only three months when this happened. * * *
*1195 Q. So, he had lived there nine months before the accident [on May 31, 1985]?
A. Yeah, around that time.
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516 So. 2d 1192, 1987 WL 2068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrade-v-shiers-lactapp-1987.