Barker v. Whittington

628 So. 2d 237, 1993 La. App. LEXIS 3745, 1993 WL 503750
CourtLouisiana Court of Appeal
DecidedDecember 8, 1993
DocketNos. 93-516, 93-517
StatusPublished
Cited by1 cases

This text of 628 So. 2d 237 (Barker v. Whittington) 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.

Bluebook
Barker v. Whittington, 628 So. 2d 237, 1993 La. App. LEXIS 3745, 1993 WL 503750 (La. Ct. App. 1993).

Opinion

LABORDE, Judge.

Plaintiffs appeal a summary judgment granted grandparents’ automobile insurer on grounds that the named defendant in this proceeding, the insureds’ grandson, was not a resident of the grandparents’ household at the time of the accident in which plaintiffs were injured. We affirm.

FACTS

Plaintiffs filed suit against Gregory K. Whittington and Allstate Insurance Company [238]*238alleging they were injured on February 25, 1991, while riding as guest passengers in Whittington’s 1991 Chevrolet pick-up truck. On the date the twenty-four year old lost control of his vehicle near Lebeau, St. Landry Parish, Allstate provided liability coverage to Whittington’s grandparents, Nellie and James Gay. The sole issue presented is whether Whittington was a “resident” of his grandparents’ household and therefore an “insured” under the terms of the Allstate policy issued to them. The pertinent language of the policy reads as follows:

Insured Persons
******
(2) While using a non-owned auto:
(a) you,
(b) any resident relative using a four wheel private passenger auto or utility auto.
* * * * * *
Definitions
* * * * * *
(3) “Resident” — means the physical presence in your household with the intention to continue living there. Unmarried dependent children while temporarily away from home will be considered residents, if they intend to continue to live in your household.
* * * * * *
(5) “You” or “Your” — means the policyholder named on the declarations page and that policyholder’s resident spouse.

Reviewing the pleadings, affidavits, and Whittington’s deposition, the trial court sustained Allstate’s Motion for Summary Judgment, noting that Whittington lived with his mother until he was seventeen, then lived a number of places before returning to the Jena area in February 1990, where he lived with his mother (not his grandmother) for one month before again becoming mobile. Based on these facts, the court concluded that there was no genuine issue of material fact: Gregory Whittington was not a resident of the household of Nellie Gay. Finding Allstate entitled to judgment as a matter of law, the trial court dismissed plaintiffs’ demands against the insurer.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 714 (5th Cir.1985); McCrae v. Hankins, 720 F.2d 863, 865 (5th Cir.1983); Wright, Miller & Kane, Federal Practice and Procedure, § 2716, at 125 (Supp.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981). Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Vermilion Corp., supra; see also United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Thombrough v. Columbus and Greenville R. Co., 760 F.2d 633, 640 (5th Cir.1985). The party who defended against the motion for summary judgment must have his properly filed allegations taken as true and must receive the benefit of the doubt when his assertions conflict with those of the movant. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Thombrough, supra; Wright, Miller & Kane, supra.

Schroeder v. Board of Sup’rs, 591 So.2d 342, 345 (La.1991). If the pleadings, depositions, answers to interrogatories, and admissions on file, if any, are sufficient to resolve all material fact issues in favor of the mover, the burden shifts to the opposing party, who may no longer rest on the allegations and denials contained in his pleadings to present evidence showing that material facts are still at issue. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980).

[239]*239In this proceeding, Allstate filed motions for summary judgment based on Whitting-ton’s nonresidence with his grandparents, its insured. The motions were filed with supporting affidavits from Whittington’s grandmother and Whittington’s deposition. The grandmother’s affidavit states that Greg Whittington had never been physically present in her home with the intention of living there; to the contrary, the grandmother avers that the young man had only appeared occasionally in her home, and then for purely social reasons. This testimony was corroborated by Greg Whittington, who during a telephone deposition stated that during his brief visits to his home town he stayed with family members including his mother, brother, and grandparents (each of whom shared the same Jena post office box with Greg Whittington and other members of the family), and friends, but had no permanent address in the vicinity of Jena he could call his own.

Even viewed harshly, these items shifted the burden to plaintiffs to present evidence that Greg Whittington resided with his grandparents at the time of the accident. It was incumbent upon plaintiffs at this point to show that some genuine issue of material fact survived the evidence adduced; they could not merely rest on the naked assertions of their petitions. Toward this end, each plaintiff introduced identical affidavits containing the following language concerning Whitting-ton’s residency:

That he personally knew Gregory K. Whittington for several years prior to February 25, 1991, and that he was a personal friend of said Gregory K. Whittington as of that date.
That he personally knows that prior to February 25,1991, and on said date, Gregory K. Whittington resided at the home of James and Nellie Gay when said Gregory K. Whittington was not on the road working. On many occasions prior to February 25, 1991, and around said date, affiant personally visited the home of James and Nellie Gay and witnessed that Gregory K. Whittington was living there, sleeping in a bedroom there, had his clothes in a closet in the bedroom, and had a chest of drawers in the bedroom where he kept his socks, underwear, etc. Also, affiant personally knows that Nellie Gay washed the clothes of Gregory K. Whittington during the time referred to hereinabove. Also, affiant states that on several occasions he visited Gregory K.

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628 So. 2d 237, 1993 La. App. LEXIS 3745, 1993 WL 503750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-whittington-lactapp-1993.